State Farm Mutual Auto Insurance Co. v. Powers
Annotate this Case
State Farm Mutual Auto Insurance Co. v. Powers (98-068); 169 Vt. 230;
732 A.2d 730
[Opinion Filed 9-Apr-1999]
[Motion for Reargument Denied 10-May-1999]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
No. 98-068
State Farm Mutual Auto Insurance Company Supreme Court
On Appeal from
v. Chittenden Superior Court
Eric Powers, Nationwide Insurance Company November Term, 1998
and Allstate Insurance Company
Linda Levitt, J.
Richard H. Wadhams, Jr., and James E. Preston of Pierson, Wadhams,
Quinn & Yates, Burlington, for Plaintiff-Appellee State Farm Mutual
Automobile Insurance Company.
Michael J. Gannon and Lisa M. Werner of Affolter Gannon & Flynn, Ltd.,
Burlington, for Defendant-Appellant Nationwide Insurance Company.
Charles Platto and Elizabeth K. Rattigan of Brooks McNally Plato &
Vitt, Norwich, for Defendant-Appellee Allstate Insurance Company.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
SKOGLUND, J. This declaratory judgment action involves a dispute
regarding how to apportion damages among three insurance carriers
providing uninsured/underinsured (UM) motorist coverage to a passenger
injured in an automobile accident. The superior court determined, based
on the insurers' respective policy provisions, that the insurer providing
coverage to the operator of the vehicle struck by the underinsured motorist
was the primary insurer and thus was required to exhaust its policy limits
before the other carriers were obligated to extend coverage. The
principal issue on appeal is whether insurers may designate their UM
coverage as primary or excess relative to other insurers providing such
coverage, thereby establishing the order of payment among the insurers.
We conclude that such policy provisions do not violate Vermont law, as
long as they do not reduce the total UM coverage available to insureds.
We also conclude, however, that the primary insurer in this instance was
entitled to at
least its pro rata share of an offset representing the sum received by the
insured directly from the tortfeasor's liability carrier. Accordingly, we
reverse the superior court's judgment.
The material facts are not in dispute. In August 1994, a vehicle
driven by James Styles ran head-on into a vehicle driven by Darren Smith,
injuring Eric Powers, who was a passenger in the Smith vehicle. After
receiving the $25,000 policy limit from Styles's liability carrier, Powers
filed underinsured motorist claims with (1) Nationwide Insurance Company,
which insured Smith; (2) Allstate Insurance Company, which insured Powers
himself; and (3) State Farm Mutual Automobile Insurance Company, which
insured the Powers family.
The personal automobile policy issued to Smith by Nationwide provided
up to $25,000 in UM coverage for damages resulting from bodily injury to
any person occupying the insured's automobile. The policy's UM coverage
endorsement contained the following "other insurance" provision:
OTHER INSURANCE
If there is other insurance:
1. For bodily injury suffered by an insured while occupying a
motor vehicle other than your auto, we will pay the insured loss
not covered by other insurance.
2. Any amounts paid or payable by or for any liable parties will
be apportioned pro rata to offset all available limits of
Uninsured Motorist coverage.
3. Except as stated above, if there is other insurance similar to this
coverage under any other policy, we will be liable for only our
share of the loss. Our share is our proportion of the total
insurance limits for the loss.
The personal automobile policy issued to Powers by Allstate provided up to
$20,000 in UM coverage for bodily injury sustained by the insured as the
result of an accident. The policy contained the following provision
within its UM section:
OTHER INSURANCE
If there is other applicable similar insurance we will pay only our
share of the loss. Our share is the proportion that our limit of
liability bears to the total of all applicable limits. However, any
insurance we provide with respect to a vehicle you do not own shall
be excess over any other collectible insurance.
Two State Farm policies were issued to Eric Powers's parents, with
whom he resided at the time of the accident. Each of those policies
provided $100,000 in UM coverage to the Powers family and contained the
following provision regarding that coverage:
If There Is Other Coverage
. . .
3. If the insured sustains bodily injury while occupying a vehicle
not owned by you, your spouse or any relative, this coverage
applies:
a. as excess to any uninsured motor vehicle coverage which
applies to the vehicle as primary coverage, but
b. only in the amount by which it exceeds the primary
coverage.
If coverage under more than one policy applies as excess:
a. the total limit of liability shall not exceed the difference
between the limit of liability of the coverage that applies as
primary and the highest limit of liability of any one of the
coverages that apply as excess; and
b. we are liable only for our share. Our share is that per cent
of the damages that the limit of liability of this coverage
bears to the total of all uninsured motor vehicle coverage
applicable as excess to the accident.
The three carriers and Powers submitted Powers's claim to arbitration
pursuant to the insurance contracts. Following an arbitration hearing,
Powers was awarded $175,000 in damages for his injuries. The carriers
agreed that Powers was entitled to $150,000 in UM coverage -- the $175,000
award less the $25,000 paid by the tortfeasor's insurer. See 23 V.S.A.
941(e) (if payment is made under uninsured motorist coverage, insurer is
entitled to recover to extent of payment from any person legally
responsible for damages); § 941(f) (motor vehicle is underinsured to
extent that its personal injury limits of liability at time of accident are
less than limits of uninsured motorists coverage applicable to any injured
party legally entitled to recover
damages under said uninsured motorist coverage); Webb v. United States
Fidelity & Guar. Co., 158 Vt. 137, 141-42, 605 A.2d 1344, 1347 (1992)
(Vermont's statutory underinsured motorist provision provides coverage
that fills the gap between tortfeasor's liability coverage and insured
party's underinsured motorist coverage).
The parties disagreed, however, on how to apportion their obligation
to reimburse Powers. Nationwide contended that the three insurers should
divide their debt to Powers in equal proportion to each carrier's coverage
limit. On the other side, State Farm and Allstate asserted that
Nationwide was the primary carrier and thus should pay its policy limits of
$25,000, after which they would pay the remainder of the debt on a pro
rata basis. In accordance with their respective positions, Nationwide
paid Powers $15,306, Allstate paid $11,364, and State Farm paid $113,636,
leaving Powers $9694 short of the $150,000 in UM coverage to which he was
entitled.
As a result of the disagreement, State Farm filed a complaint for
declaratory judgment in superior court. The court ultimately granted
summary judgment to State Farm and Allstate, ruling that Nationwide, as
the primary carrier, was obligated to exhaust its $25,000 policy limit
before State Farm or Allstate, as excess carriers, were required to make
any payments toward the claim. On appeal, Nationwide argues that labeling
any applicable UM coverage as excess unlawfully conditions the statutory
requirement that each and every automobile insurance policy provide UM
coverage, in violation of 23 V.S.A. § 941(a), and improperly affects UM
coverage provided by other insurers, in violation of Monteith v. Jefferson
Ins. Co., 159 Vt. 378, 618 A.2d 488 (1992). Nationwide contends that when
UM coverage provided by multiple insurers exceeds damages, each insurer
should pay its pro rata share, notwithstanding the existence of other
insurance provisions purporting to establish primary or excess coverage.
I.
We reject Nationwide's argument that labeling UM coverage as excess,
in and of itself, violates Vermont law mandating UM coverage. Section
941(a) requires each and every automobile insurance policy delivered in
Vermont to provide coverage for insureds who are
legally entitled to recover damages from owners or operators of uninsured,
underinsured, or hit-and-run vehicles. "No policy can be issued which
reduces the amount of coverage mandated by statute." Sanders v. St. Paul
Mercury Ins. Co., 148 Vt. 496, 499, 536 A.2d 914, 916 (1987).
Nevertheless, provisions that merely establish the priority of coverage
among insurers without compromising coverage for insureds do not violate §
941(a). See Aetna Cas. & Sur. Co. v. CNA Ins. Co., 606 A.2d 990, 992-93
(Conn. 1992) ("other insurance" clauses establishing order of coverage
between insurers are valid and do not violate public policy, as long as
their enforcement does not compromise coverage for the insured); Farmers
Ins. Co. v. Prudential Prop. & Cas. Ins. Co., 692 P.2d 393, 396-97 (Kan.
Ct. App. 1984) (insurance provisions merely seeking to establish priority
of payments between insurers, without diminishing coverage to insureds, are
not violative of public policy or statute compelling UM coverage); see
also Champlain Cas. Co. v. Agency Rent-A-Car, Inc., ___ Vt. ___, ___, 716 A.2d 810, 816 (1998) (because purpose of financial responsibility and
compulsory insurance laws is to protect public, nothing in policies behind
those laws governs how payments are allocated among insurers).
Our decision in Monteith does not suggest otherwise. In that case,
the plaintiff was injured when struck by an automobile while riding his
motorcycle. The plaintiff had one insurance policy with Jefferson
Insurance Company covering his motorcycle and another policy with Peerless
Insurance Company covering other vehicles he owned. The Peerless policy
stated that it did not provide UM coverage for bodily injury sustained by
any person while occupying a motor vehicle owned by the insured but not
covered under the policy. In holding that the provision violated § 941(a)
and thus was unenforceable, we noted that the essence of UM coverage under
the statute is its portability because it is designed to protect persons,
not vehicles. See Monteith, 159 Vt. at 381, 618 A.2d at 490 (concluding
that § 941(a) does not permit insurers to condition coverage based on
location or status of insured). We also stated, in noting that
interpolicy anti-
stacking (FN1) provisions violate § 941(a) and thus are unenforceable, that
an insurer is without power "to delimit or affect UM coverage in policies
written by other insurers." Id. at 383, 618 A.2d at 491.
Nationwide misconstrues and overextends the meaning of these
statements in arguing that they demonstrate that insurers may not
designate UM coverage as excess. In Monteith, the concern was that
insurers were inserting into their policies provisions limiting the
contexts in which UM coverage was available and the ability of insureds to
stack multiple policies -- the kind of exclusions that threatened to
defeat the broad, remedial purpose of UM coverage. See id. at 381-82, 618 A.2d at 490. It was in this context that we noted the portability of UM
coverage and the restrictions on the ability of insurers to delimit or
affect each others' UM coverage. Neither Monteith nor any other Vermont
case stands for the proposition that automobile insurance policies may not
contain provisions seeking to prioritize their coverage with respect to
coverage available in other policies.
Unless prohibited by statute or public policy, an insurer's liability
is controlled by its policy provisions; thus, we "will heed primary-excess
provisions where the rights of the policyholder will not be adversely
affected." 16 R. Anderson, Couch on Insurance § 62.41, at 475 (2d ed.
1983); see Aetna Cas. & Sur. Co., 606 A.2d at 993 (if enforcement of
nonconflicting "other insurance" clauses would not produce adverse
consequences for insureds, then clauses should be enforced as written).
Many insurance policies, including those at issue here, incorporate the
generally accepted position that "the insurer of a vehicle involved in a
collision has primary [UM] coverage for the passengers of that vehicle,
while the insurer of a passenger in that vehicle has excess coverage for
that passenger." Elrod v. General Cas. Co. of Wisconsin, 566 N.W.2d 482,
486 (S.D. 1997) (citing treatises); see Millers Cas. Ins. Co. of Texas v.
Briggs,
665 P.2d 887, 889-890 (Wash. 1983) (accord); 16 Couch, supra § 62.73, at
533 (courts generally reach conclusion that policy issued to owner of
vehicle involved in accident provides "primary" UM coverage, and that
insurer issuing it is liable up to limits of policy without apportionment).
Notwithstanding Nationwide's arguments to the contrary, this is not a
case in which the applicable policies contain conflicting provisions, at
least with respect to establishing the priority of coverage. Nor does
this case involve a dispute between multiple insurers all claiming to
provide either excess or primary coverage, in which case the coverage would
be apportioned among the insurers on a pro rata basis. See Champlain Cas.
Co., ___ Vt. at ___, 716 A.2d at 814 (majority of jurisdictions prorate
coverage among multiple insurers when conflicting excess "other insurance"
provisions in applicable policies are deemed mutually repugnant);
Hoffmaster v. Harleysville Ins. Co., 657 A.2d 1274, 1277 (Pa. Super. Ct.
1995) (vast majority of courts have adopted rule that irreconcilable
"other insurance" clauses in automobile liability insurance policies are
mutually repugnant, thereby rendering each as providing primary coverage).
Rather, each of the policies involved in this appeal provide UM
coverage, as required by law, but indicate that the coverage will be
excess when involving a vehicle not owned by the insureds named in the
policy. Without using the words "primary" or "excess," the Nationwide
policy expressly states that, for bodily injury suffered by an insured
while occupying a vehicle not owned by the policyholder or spouse,
Nationwide will provide coverage only to the extent that the insured's
loss is not covered by other insurance. We find unavailing Nationwide's
protest that nowhere in its policy provisions does it declare its UM
coverage to be primary with respect to covered vehicles owned by the
policyholder. The only rational conclusion that can be derived from the
Nationwide policy is that it provides primary coverage when the insured is
injured while occupying a vehicle owned by the policyholder, which is the
case here. See Elrod, 566 N.W.2d at 485 (although insurance clause did
not specifically state that insurer would provide primary coverage for
vehicles owned by insured, that was only logical conclusion to be reached
because "other insurance" provision in policy provided excess coverage
only with respect
to nonowned vehicles); see also Aetna Cas. & Sur. Co., 606 A.2d at 994
(policy providing excess coverage with respect to nonowned vehicles did
not envision being excess in situation where injured party was occupying
vehicle owned by named insured; therefore, policy provided primary
coverage); Skidgell v. Universal Underwriters Ins. Co., 697 A.2d 831, 834
(Me. 1997) (insurance coverage is considered primary in absence of
language designating coverage as excess).
None of Nationwide's arguments undermine this conclusion. First, the
provisions establishing priority of coverage are not nullified by the fact
that they also contain unenforceable excess-escape components. (FN2)
"[T]he mere coupling of an inoffensive clause with one which must be void
as an attempt to limit coverage need not render the entire provision void."
Farmers Ins. Co., 692 P.2d at 397. Second, we find no merit to
Nationwide's argument that Allstate's excess coverage provision fails to
mention and therefore does not apply to situations involving bodily
injury. See Elrod, 566 N.W.2d at 486 (inclusion of coverage for bodily
injury is implied when underinsured coverage is defined to include bodily
injury and excess coverage provision refers to "vehicle").
Finally, we are not concerned that insurers may attempt to provide
only excess coverage in an ever widening variety of contexts to avoid UM
coverage. Section 941(a) mandates UM coverage in each and every policy.
As we noted above, in situations where all of the applicable policies
purport to provide only excess coverage, that coverage will be deemed to be
primary and thus shared pro rata among the insurers. See Blevio v. Aetna
Cas. & Sur. Co., 844 F. Supp. 849, 853 (D. Mass. 1993) (if insurers issue
mutually repugnant "other insurance" clauses providing excess coverage,
they are considered to have provided primary coverage and thus must share
loss
pro rata to extent of coverage), aff'd, 39 F.3d 1 (1st Cir. 1994); Onley v.
Nationwide Mut. Ins. Co., 456 S.E.2d 882, 884 (N.C. Ct. App. 1995) (where
policies of two insurers contained mutually repugnant excess UM coverage
provisions, both would be required to share liability for UM coverage on
pro rata basis); 8A J. Appleman, Insurance Law and Practice § 4906, at 348,
and § 4909, at 383-90 (rev. ed. 1981) (if excess clauses are mutually
repugnant, insurers share same risk as if both were primary; excess
clauses are unenforceable when primary coverage is unavailable).
In sum, the parties' policy provisions in this case unambiguously
establish a consistent method for prioritizing UM coverage -- coverage is
primary when the claimant is injured while occupying a vehicle owned by
the policyholder and is excess when the claimant is injured while
occupying a vehicle not owned by the policyholder. We honor that method
because it neither reduces coverage to the insured nor violates statutory
law or public policy.(FN3) See Champlain Cas. Co., ___ Vt. at ___, 716 A.2d at 814 n.1. ("If the policies provide for a method of apportioning
loss, we will honor that method."). In this case, Nationwide is the
primary insurer because its policyholder was the owner/operator of the
vehicle in which Eric Powers was injured; on the other hand, Allstate and
State Farm are excess insurers because their policyholders did not own the
vehicle involved in the accident. As the primary insurer, Nationwide must
exhaust its policy limit before the excess coverage is tapped. To the
extent that Nationwide's policy contains a separate provision purporting
to pro rate its coverage with other "similar" coverage, that provision
has no effect in these circumstances. See 16 Couch, supra § 62.72, at 530
(where excess and pro rata clauses conflict, pro rata clause is
disregarded and full effect is given to excess clause); 8A J. Appleman,
supra § 4909.25, at 409 (excess clause prevails over pro rata clause
because excess coverage is not "other valid and collectible insurance"
within pro rata clause).
II.
Our determination that Nationwide provides primary coverage and thus
is required to exhaust its policy limit before the other insurers' excess
coverage is triggered does not end our inquiry. The question remains --
which of the UM insurers, if any, are entitled to offset any part or all
of the $25,000 paid by the underinsured motorist? Although Nationwide
briefly suggests that it is entitled to offset the entire sum, it declares
that it seeks only its pro rata share of the offset. Allstate contends,
on the other hand, that none of the UM insurers may offset the $25,000
paid by the underinsured motorist because that amount has already been
subtracted from the amount due Eric Powers. According to Allstate,
allowing Nationwide to set off any part of the tortfeasor's payment would
violate the policy announced in Monteith prohibiting interpolicy anti-
stacking provisions.
We are not persuaded by Allstate's arguments. While it is true that
the total coverage available from the UM insurers exceeded Powers's
damages, and that the $25,000 from the uninsured motorist reduced the UM
coverage from $175,000 to $150,000, these facts do not resolve whether the
primary insurer is entitled to offset all or part of the tortfeasor's
payment. A case before the Connecticut Supreme Court is illustrative.
There, the claimant incurred $400,000 in damages, and was paid $100,000 by
the tortfeasor's insurer, entitling her to $300,000 in UM coverage. See
Aetna Cas. & Ins. Co., 606 A.2d at 991. The arbitration panel required
the insurer providing coverage to the owner of the vehicle involved in the
accident, as the primary insurer, to exhaust its coverage before the
excess coverage of the other insurer was tapped. After giving the primary
insurer full credit for the tortfeasor's $100,000 payment, the panel
ordered the primary insurer to pay the first $200,000 of UM coverage and
the excess
insurer to pay the additional $100,000. The panel's award, which had been
vacated by the superior court, was reinstated by the Connecticut Supreme
Court. See id. at 994.
Although the question of whether the primary insurer was entitled to a
full setoff of the tortfeasor's payment was not at issue in that case, the
majority of courts directly addressing the issue have concluded that the
insurer providing primary UM coverage is entitled to offset its liability
with any payment obtained from the tortfeasor. For example, in Cobb v.
Allstate Ins. Co., 663 A.2d 38 (Me. 1995), the primary insurer's $40,000
limit of liability for UM coverage was reduced by the $25,000 payment from
the tortfeasor, while the excess insurer, which provided $100,000 in UM
coverage, was obligated to pay damages exceeding $40,000. In that case,
the Supreme Judicial Court of Maine reasoned:
Because Allstate's policy is excess, it has no applicability at all
until the primary coverage is exhausted. The denial of any setoff
to Allstate is a logical corollary to the lack of risk it faces until
[the insured] has sustained damages above $40,000, the limit of the
primary insurer's responsibility. In so holding, we are in
agreement with most of the jurisdictions that have considered the
issue.
. . . .
Application of any monies received by an insured from a tortfeasor
as an offset to the first-tier provider's liability is more logical and
efficient than prorating. As would have been the case here, the
primary insurer will be able to settle more quickly with its insured
and remove itself from further legal disputes. The reduced need for
litigation will not only result in lessened costs to consumers, but
will reduce the strain on overburdened judicial resources.
Id. at 40-41 (citing cases); see Dixie Ins. Co. v. State Farm Mut. Auto.
Ins. Co., 614 So. 2d 918, 922-23 (Miss. 1992) (primary insurer was
entitled to offset first from tortfeasor's payment).
In most instances, courts that have prorated setoffs have done so when
both insurers provided primary coverage. See Blevio, 39 F.3d at 4 (two
primary insurers must share $200,000 setoff pro rata to extent of their
coverage); Skidgell, 697 A.2d at 835 (holding that two insurers providing
primary UM coverage were entitled to prorated setoff). The only exception
that we have found is in Ellis v. Royal Ins. Cos., 530 A.2d 303, 311 (N.H.
1987), where the New Hampshire
Supreme Court applied a "sliding-scale" approach in apportioning the offset
between the primary and excess insurer, rather than uphold the trial
court's determination that the credit should be split evenly.
Allowing Nationwide to offset the entire $25,000 against its primary
UM coverage, which would in effect reduce its obligation to zero, would
not violate our holding in Monteith. In Monteith, we rejected as
unenforceable an insurance policy provision that denied UM coverage in
instances in which the limit of liability of the underinsured motorist was
less than the limit of liability provided in that policy. We concluded
that the provision was unenforceable because it effectively foreclosed
interpolicy stacking of UM coverage and thus reduced the UM coverage
available to the injured party. See Monteith, 159 Vt. at 384-85, 618 A.2d
at 491-92. Here, in contrast, permitting Nationwide, as the primary
insurer, to set off the amount obtained from the underinsured motorist
neither precludes interpolicy stacking nor reduces the UM coverage
available to Eric Powers.
Nevertheless, we conclude that in this instance Nationwide is entitled
to only its pro rata share of the offset. Nationwide's "other insurance"
provision within its UM coverage endorsement expressly states that any
amounts paid by any liable party "will be apportioned pro rata to offset
all available limits of Uninsured Motorist coverage." Perhaps for this
reason, Nationwide has not adequately raised or briefed any request for
offset of the entire $25,000 paid by the underinsured motorist. Although
the superior court suggests at one point that Nationwide was seeking
credit for the $25,000, we find no such request in the record below.
Indeed, Nationwide's position all along has been that the setoff should be
apportioned among the insurers pro rata. None of the claims of error in
Nationwide's main brief contend that the court erred by not giving
Nationwide credit for the entire $25,000. Indeed, in its reply brief,
Nationwide declares that it is not claiming to be entitled to the entire
offset of $25,000. Nationwide's one-sentence statement in a footnote in
its reply brief that the Court should consider whether Nationwide is
entitled to the entire offset if it is considered to be the primary insurer
does not sufficiently raise or brief the argument. See In re Wal*Mart
Stores, Inc., 167 Vt. 75, 86, 702 A.2d 397, 404 (1997) (issues not briefed
in original briefs may not be raised for first time in reply brief);
Persons v. Lehoe, 150 Vt. 582, 587, 554 A.2d 681, 684 (1988) (Supreme Court
will not decide issues inadequately briefed).
In light of Nationwide's "other insurance" provision and the position
it takes in this appeal, we apportion credit for the tortfeasor's $25,000
payment on a pro rata basis in accordance with the method contained in
Nationwide's brief, a method that has not been challenged by the excess
insurers. Under this method, State Farm is obligated to pay Eric Powers an
additional $8764, and Allstate is obligated to pay an additional $930,
resulting in a total payment of $150,000 in UM coverage for his damages.
Reversed and remanded for the superior court to enter judgment
consistent with this opinion.
FOR THE COURT:
_________________________________________
Associate Justice
---------------------------------------------------------------------------
Footnotes
FN1. "`Stacking,' refers to the ability of the insured, when covered
by more than one insurance policy, to obtain benefits from a second policy
on the same claim when recovery from the first policy would be
inadequate." Monteith v. Jefferson Ins. Co., 159 Vt. 378, 383 n.2, 618 A.2d 488, 491 n.2 (1992).
FN2. An excess-escape clause attempts to limit UM coverage to the
amount by which its policy limit exceeds the limits of other applicable
policies providing UM coverage, thereby violating prohibitions against
interpolicy anti-stacking provisions. See Goodrich v. Lumbermen's Mut.
Cas. Co., 432 F. Supp. 839, 840, 843 (D. Vt. 1976) (striking excess-escape
provision that precluded interpolicy stacking of UM coverage); 8A J.
Appleman, Insurance Law and Practice § 4906, at 349 (rev. ed. 1981)
(explaining excess-escape clause); Farmers Ins. Co. v. Prudential Prop. &
Cas. Ins. Co., 692 P.2d 393, 396 (Kan. Ct. App. 1984) (same).
FN3. At least one court, in an effort to untie the "Gordian Knot" of
coverage created by competing and often conflicting "other insurance"
clauses, has held that all insurers providing coverage that would be
primary if it were the only coverage available must pay damages on a pro-
rata basis. See Hindson v. Allstate Ins. Co., 694 A.2d 682, 683, 685-86
(R.I. 1997). The Rhode Island Supreme Court took this position to protect
insureds whose compensation for injuries resulting from accidents with UM
motorists was being delayed because of entrenched battles between insurers
over coverage issues. See id. at 685-86. The parties in this case have
made no showing that public policy requires us to impose a similar rule in
Vermont at this time; however, we do not foreclose the possibility of
adopting such a rule in the future if a showing of need, based on public
policy grounds, is made at some later time.
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