Rosa Owen, Individually and as Parent and Next Friend of Ashley Owen, a Minor v. Continental Insurance Company

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CA05-386

December 7, 2005

ROSA OWEN, Individually and as Parent AN APPEAL FROM WASHINGTON

and Next Friend of ASHLEY OWEN, COUNTY CIRCUIT COURT

A Minor [No. CIV 2003-1069-1]

APPELLANT

v. HONORABLE WILLIAM A. STOREY,

CIRCUIT JUDGE

CONTINENTAL INSURANCE

COMPANY

APPELLEE AFFIRMED

Karen R. Baker, Judge

Appellant Rosa Owen appeals from a summary judgment entered in favor of appellee Continental Insurance Company, arguing that the policy reasons for allowing insurance companies to prohibit the "stacking" of policies are not present in this case. We affirm.

Owen, her daughter Ashley, and her husband Richard were injured when an automobile they occupied was struck by Floyd Dunn's vehicle. Owen filed suit against Dunn, Continental Insurance Company, and John Does one through five. The complaint alleged that Dunn, an underinsured driver, negligently struck the Owens' vehicle and caused them injury. They sought underinsured motorist benefits from Continental that corresponded to each of three vehicles that were insured under their Continental policy. The Continental policy had underinsured motorist coverage of $50,000 per person and $100,000 per accident. Owen alleged that she had sustained medical bills of $98,870 and that Ashley had over $12,000 in medical bills.

Continental filed a motion for summary judgment on the basis of the anti-stacking language in its policy. The policy provided:

LIMIT OF LIABILITY

1. If Uninsured Motorists Bodily Injury and/or Property Damage Coverage is indicated on the Coverage Summary, the limit of liability shown for each person is our maximum limit of liability for all damages, including damages for care, loss of services or death, arising out of bodily injury and/or property damage sustained by any one person in any one motor vehicle accident. If Underinsured Motorists Coverage is indicated on the Coverage Summary, the limit of liability shown for each person is our maximum limit of liability for all damages, including damages for care, loss of services or death, arising out of bodily injury sustained by any one person in any one motor vehicle accident. "Bodily injury sustained by any one person" includes all injury and damage to others resulting from this bodily injury.

Subject to this limit for each person, the limit of liability shown in the Coverage Summary for each accident for "Uninsured Motorists Coverage" or "Underinsured Motorists Coverage" is our maximum limit of liability for all damages for bodily injury and or property damage resulting from any one motor vehicle accident.

This is the most we will pay regardless of the number of:

a. Covered persons;

b. Claims or suits made;

c. Vehicles involved in an accident or shown in the Coverage Summary;

d. Persons who sustain injury or damage;

e. Vehicles insured by this or any other policy issued by us or others; or

f. Premiums paid for this coverage.

(Emphasis in original.) In a letter opinion, the trial court found that this language clearly prohibits stacking based on the number of vehicles in the policy. The trial court also found that the provision did not violate public policy. The trial court, finding no material issues of fact to be tried, granted Continental's motion.

Owen appealed the summary judgment. However, this court dismissed the appeal for lack of a final order. Owen v. Continental Ins. Co., No. 04-593 (Ark. App. Sept. 29, 2004). On remand, the circuit court entered orders dismissing Dunn and the John Doe defendants. This appeal followed.

In reviewing summary-judgment cases, we determine whether the trial court's grant of summary judgment was appropriate based on whether the evidence presented by the moving party left a material question of fact unanswered. Norris v. State Farm Fire & Cas.Co., 341 Ark. 360, 16 S.W.3d 242 (2000). The moving party always bears the burden of sustaining a motion for summary judgment. Youngman v. State Farm Mut. Auto. Ins. Co., 334 Ark. 73, 971 S.W.2d 248 (1998). In a case such as this one where there are no disputed facts, our review must focus on the trial court's application of the law to those undisputed facts. See id. Owen argues one point on appeal: that the trial court erred in granting summary judgment based on the stacking of multiple vehicles within a single policy.

The term "stacking" is used to describe a situation where all available policies are added together to create a larger pool from which the injured party may draw in order to compensate him for his loss where a single policy is not sufficient to make him whole. Sweeden v. Farmers Ins. Group, 71 Ark. App. 381, 30 S.W.3d 783 (2000). Our underinsured motorist statute, Ark. Code Ann. § 23-89-209 (Repl. 2004), does not prohibit stacking of coverages. Shelter Mut. Ins. Co. v. Williams, 69 Ark. App. 35, 9 S.W.3d 545 (2000). However, such stacking may be precluded by an applicable anti-stacking clause in the policy. Id.

Owen relies on Ross v. United Services Automobile Association, 320 Ark. 604, 899 S.W.2d 53 (1995), where it was held that the insured in that case was permitted to stack the underinsured motorist coverage for each insured vehicle in a single policy. That holding, however, was premised on the supreme court's conclusion that the policy in question contained no effective anti-stacking provision. The anti-stacking provision is not set out in the opinion. Although the insurer in Ross had included an anti-stacking clause in the policy, that clause was held to be ineffective under the circumstances of Ross because it merely prohibited "the stacking of policies, and not the stacking of cars within the policy." 320 Ark. at 610, 899 S.W.2d at 56 (emphasis in original).

The trial court relied on Chamberlin v. State Farm Mutual Automobile Insurance Co., 343 Ark. 392, 36 S.W.3d 281 (2001), and Clampit v. State Farm Mutual AutomobileInsurance Co., 309 Ark. 107, 828 S.W.2d 593 (1992), in granting Continental's motion. In Chamberlin, the supreme court reaffirmed its rule allowing insurers who comply with the statutes regarding underinsured motorist coverage to exclude underinsured motorist coverage for injuries incurred in a vehicle owned by the insured but covered under another policy. In other words, when an insured owns multiple cars covered by the same insurer but under different policies, if the underinsured motorist coverage under one policy is insufficient to cover the insured's medical injuries, the insured cannot supplement his coverage with the underinsured motorist coverage from the policy covering another of the vehicles he owns.

The supreme court rejected Chamberlin's argument that the holding in Ross, supra, should be extended. Instead, the court limited Ross to the facts of that case, thus continuing its prohibition on stacking. The court held this despite the fact that the rule might not be followed in the majority of jurisdictions.1 The court pointed out that other states' decisions allowing stacking often turn on the legislative intent behind the statute, and such intent is not present in the Arkansas statutes. Finally, the court restated and applied a simple rule for analyzing stacking problems: "Read the Statute and Read the Policy." The court concluded that, in light of Arkansas statutes, State Farm's unambiguous exclusion was valid, and the trial court's ruling was affirmed.

Owen argues that Clampit, which was reaffirmed in Chamberlin, was wrongly decided and both are distinguishable from the present case because they involved multiple vehicles insured under multiple policies while the present case has three vehicles insured under a single policy. In Clampit, the insureds had two vehicles insured under separate policies while Chamberlin involved three vehicles and policies. This court, in Kanning v. Allstate Insursance Cos., 67 Ark. App. 135, 992 S.W.2d 831 (1999), affirmed a judgment prohibiting stacking of underinsured motorist coverage for three vehicles in a single policy, similar tothe present case. Kanning relied on Ross for its holding that insurance companies can validly prohibit stacking and did not cite Clampit. Kanning also rejected the argument that Ross established a broad rule in favor of stacking, taking the view that the result in Ross was due to the lack of an effective anti-stacking provision. In her reply brief, Owen attempts to distinguish Kanning as a case involving ambiguity, not one based on public policy. However, the appellant in Kanning did make a public-policy argument. We did not address that argument because it had not been raised at trial.

Owen's argument is basically that the public policy concerns expressed in Chamberlin and Clampit do not apply in the present case. However, those cases allow an insurance company to prohibit stacking of coverage with a clear policy provision, and we can not overrule cases decided by our supreme court. Sweeden, supra. Owen does not argue that the policy language is not a clear anti-stacking provision; therefore, we hold that the trial court did not err in granting summary judgment.

Affirmed.

Crabtree and Roaf, JJ., agree.

1 The supreme court, in Youngman, supra, noted that thirty-six states allowed stacking.