§ 20-259.01. Motor vehicle liability policy; uninsured optional; underinsured optional; subrogation; medical payments liens; definitions
Note: This Act, properly interpreted, requires that a minimum amount of coverage be available to each person actually injured or killed; to the extent it is not so available, each person who sustains bodily injury has a claim against his or her uninsured motorist coverage. Herring v. Lumbermen’s Mut. Cas. Co., 144 Ariz. 254, 697 P.2d 337 (1985). This section was intended to close the gap in protection offered by the Uniform Motor Vehicle Safety Responsibility Act, § 28-1101 et seq., by requiring insurance companies issuing automobile liability policies to include coverage for injuries suffered by their insureds for damages caused by uninsured motorists. Bartning v. State Farm Fire & Cas., 164 Ariz. 370, 793 P.2d 127 (Ct. App. 1990), review denied, 166 Ariz. 432, 803 P.2d 425 (1991); Lowing v. Allstate Ins. Co., 176 Ariz. 101, 859 P.2d 724 (1993).
Limitations on Underinsured Coverage: Under this section, underinsured motorist coverage is applicable only for the difference between an insured’s total damages and the total applicable liability limits. State Farm Mut. Auto. Ins. Co. v. Arrington, 192 Ariz. 255, 963 P.2d 334 (Ct. App. 1998). A passenger cannot recover from a single tortfeasor covered by a single policy under both the liability and underinsured provisions of the policy. Duran v. Hartford Ins. Co., 157 Ariz. 125, 755 P.2d 430 (Ct. App. 1988), aff’d, 160 Ariz. 223, 772 P.2d 577 (1989).
NOTE: Underinsured motorist coverage is now no longer mandatory. Cole v. State Farm Mut. Auto. Ins. Co., 145 Ariz. 578, 703 P.2d 522 (Ct. App. 1985).
General Commercial Liability Policy:
Under a business auto coverage policy purchased in connection with a general commercial liability policy, a vehicle owned by an employee and used in the business was a “specifically insured motor vehicle” under subsection L. Petrusek v. Farmers Ins. Co., 193 Ariz. 552, 975 P.2d 142 (Ct. App. 1998). Because a business auto coverage policy purchased in connection with a general commercial liability policy was not intended to be primary coverage for a vehicle owned by an employee and used in the business, the insurer was not required to offer underinsured motorist coverage in connection therewith. Petrusek v. Farmers Ins. Co., 193 Ariz. 552, 975 P.2d 142 (Ct. App. 1998).
Ownership, Maintenance or Use: An unidentified accident-causing driver is an “owner or operator of an uninsured motor vehicle” within the meaning of this section. Lowing v. Allstate Ins. Co., 176 Ariz. 101, 859 P.2d 724 (1993).
Territory Limits: Arizona’s public policy dictates that uninsured motorist coverage be territorially coextensive with liability coverage; any territorial limitation to the contrary violates that public policy and is void. Bartning v. State Farm Fire & Cas. Co., 162 Ariz. 344, 783 P.2d 790 (1989).
Stacking: Nothing in the underinsurance statute suggests any legislative intent to allow an injured passenger to “stack” liability and underinsured motorist coverage so as to, in effect, increase the named insured’s liability coverage. Duran v. Hartford Ins. Co., 160 Ariz. 223, 772 P.2d 577 (1989).
A. Every insurer writing automobile liability or motor vehicle liability policies must make available to the named insured and by written notice offer the insured and at the request of the insured must include within the policy uninsured motorist coverage which extends to and covers all persons insured under the policy, in limits not less than the liability limits for bodily injury or death contained within the policy. The selection of limits or rejection of coverage by a named insured or applicant on a form approved by the director is valid for all insureds under the policy. The completion of such form is not required where the insured purchases such coverage in an amount equal to the limits for bodily injury or death contained in the policy. The offer need not be made in the event of the reinstatement of a lapsed policy or the transfer, substitution, modification or renewal of an existing policy. At the request of the insured, the insured may purchase and the insurer shall then include within the policy uninsured motorist coverage that extends to and covers all persons insured under the policy in any amount up to the liability limits for bodily injury or death contained within the policy but not less than the limits prescribed in section 28-4009 .
Subsection A makes it mandatory to offer both uninsured and underinsured motorist coverage in at least the amount of the statutory minimium for liability insurance. Cole v. State Farm Mut. Auto. Ins. Co., 145 Ariz. 578, 703 P.2d 522 (Ct. App. 1985).
Written Requirement: Where an insurance agent handed a form to the insured, asked her to sign it if she wanted coverage, and then retained the form, a trier of fact could reasonably conclude that the agent intentionally or negligently engaged in conduct that did not make underinsured coverage available and did not by written notice offer such coverage because the insured was led to believe she was simply signing an application for insurance. Giley v. Liberty Mut. Fire Ins. Co., 168 Ariz. 306, 812 P.2d 1124 (Ct. App. 1991).
B. Every insurer writing automobile liability or motor vehicle liability policies shall also make available to the named insured thereunder and shall by written notice offer the insured and at the request of the insured shall include within the policy underinsured motorist coverage which extends to and covers all persons insured under the policy, in limits not less than the liability limits for bodily injury or death contained within the policy. The selection of limits or rejection of coverage by a named insured or applicant on a form approved by the director shall be valid for all insureds under the policy. The completion of such form is not required where the insured purchases such coverage in an amount equal to the limits for bodily injury or death contained in the policy. The offer need not be made in the event of the reinstatement of a lapsed policy or the transfer, substitution, modification or renewal of an existing policy. At the request of the insured, the insured may purchase and the insurer shall then include within the policy underinsured motorist coverage that extends to and covers all persons insured under the policy in any amount authorized by the insured up to the liability limits for bodily injury or death contained within the policy.
The purpose of subsection B is to require insurance companies to make increased amounts of protection available against the uninsured motorist; there is no indication that the legislature intended this section to redefine uninsured. State Farm Mut. Auto. Ins. Co. v. Eden, 136 Ariz. 460, 666 P.2d 1069 (1983). The intent of the uninsured motorist insurance statute is to protect each insured no matter where he is (within the policy’s territorial limits) or what he is doing. Employers Mut. Cas. Co. v. McKeon, 159 Ariz. 111, 765 P.2d 513 (1988).
The amendment to subsection B in 1981 manifested a clear legislative intent that each insured who purchased uninsured motorist coverage in the amount of liability coverage would have available the total of the two coverages in cases in which the injury was caused by two negligent drivers. Any attempt, by contract or otherwise, to reduce any part of this amount violates the statute. Spain v. Valley Forge Ins. Co., 152 Ariz. 189, 731 P.2d 84 (1986).
The intent of the phrase “which extends to and covers all persons insured under the policy” from subsection B is that each person insured under a policy is entitled to underinsured coverage (if purchased) if and when a person insured under the policy suffers bodily injury or death, but only to the extent of the policy limits applicable to the person who was injured and/or killed in an automobile accident. Green ex rel. Green v. Mid-America Preferred Ins. Co., 156 Ariz. 265, 751 P.2d 581 (1987).
C. Any insurer writing automobile liability or motor vehicle liability policies may make available the coverages required by subsections A and B of this section to owners and operators of motor vehicles that are used as public or livery conveyances or rented to others or that are used in the business primarily to transport property or equipment. The provisions of subsections A and B of this section shall not preclude an insurer writing automobile liability or motor vehicle liability policies in this state from requiring that all motor vehicles that are owned by or registered to the named insured and that are insured by the same insurer or group of insurers under a common management have the same limits of coverage for uninsured and underinsured motorist coverage in amounts as selected or rejected by the named insured.
Under subsection C, an insurer is required to make written offers of underinsured motorist coverage in limits up to the bodily injury liability limits of its existing insureds’ policies upon offering to renew such policies; however, the insurer is not required to prove that its insureds actually received and expressly rejected them. State Farm Mut. Auto. Ins. Co. v. Ash, 181 Ariz. 167, 888 P.2d 1354 (Ct. App. 1994).
D. “Uninsured motor vehicles”, subject to the terms and conditions of that coverage, includes any insured motor vehicle if the liability insurer of the vehicle is unable to make payment on the liability of its insured, within the limits of the coverage, because of insolvency.
E. “Uninsured motorist coverage”, subject to the terms and conditions of that coverage, means coverage for damages due to bodily injury or death if the motor vehicle that caused the bodily injury or death is not insured by a motor vehicle liability policy that contains at least the limits prescribed in section 28-4009. For the purposes of uninsured motorist coverage, an uninsured motorist does not include a person who is insured under a motor vehicle liability policy that complies with section 28-4009.
Subsection E provides that when there is a deficiency, it is underinsured, not uninsured coverage, which makes up the difference between the amount received from the insured tortfeasor and the statutory minimum. State Farm Mut. Auto. Ins. Co. v. Cobb, 172 Ariz. 458, 837 P.2d 1193 (Ct. App. 1992).
F. Any payment made under the bodily injury liability portion of a motor vehicle liability policy insuring the motor vehicle that caused the bodily injury or death in an amount equal to or less than the per person or per occurrence bodily injury limits of that policy, regardless of the number of persons receiving payments, precludes any payment under the uninsured motorist coverage based upon the fault of the person who is insured under the motor vehicle liability policy.
G. “Underinsured motorist coverage” includes coverage for a person if the sum of the limits of liability under all bodily injury or death liability bonds and liability insurance policies applicable at the time of the accident is less than the total damages for bodily injury or death resulting from the accident. To the extent that the total damages exceed the total applicable liability limits, the underinsured motorist coverage provided in subsection B of this section is applicable to the difference.
Subsection G did not create a cause of action unknown at common law; instead, it merely removed the common law prohibition against assigning an existing personal injury claim to the extent of permitting enforcement of such a claim in the hands of an insurer as statutory subrogee of the insured. Preferred Risk Mut. Ins. Co. v. Vargas, 157 Ariz. 17, 754 P.2d 346 (Ct. App. 1988).
H. Uninsured and underinsured motorist coverages are separate and distinct and apply to different accident situations. Underinsured motorist coverage shall not provide coverage for a claim against an uninsured motorist in addition to any applicable uninsured motorist coverage. If multiple policies or coverages purchased by one insured on different vehicles apply to an accident or claim, the insurer may limit the coverage so that only one policy or coverage, selected by the insured, shall be applicable to any one accident. If the policy does not contain a statement that informs the insured of the insured’s right to select one policy or coverage as required by this subsection, within thirty days after the insurer receives notice of an accident, the insurer shall notify the insured in writing of the insured’s right to select one policy or coverage. For the purposes of this subsection, “insurer” includes every insurer within a group of insurers under a common management.
I. Insurers that make payments for damages to insureds for uninsured motorist coverage may subrogate and sue for reimbursement of the total amount of the payments in the name of the insured against any uninsured motorist responsible for the damages to the insured.
The right to subrogation established by subsection (I) is merely an assignment of an existing claim, and is subject to the statute of limitations applicable to that claim. Safeway Ins. Co. v. Collins, 192 Ariz. 262, 963 P.2d 1085 (Ct. App. 1998).
J. Any automobile liability or motor vehicle liability insurer that makes a payment under the medical payments coverage of a motor vehicle insurance policy to or on behalf of any insured for an injury that arises out of an accident that occurs after December 31, 1998 may have a lien against any amount in excess of five thousand dollars that is paid to or on behalf of that insured under the medical payments coverage of the policy for that accident. The insurer shall compromise the lien in a fair and equitable manner. In order to perfect a lien granted pursuant to this subsection, within sixty days after issuing a payment that is more than five thousand dollars to the insured under medical payments coverage, the insurer or the insurer’s authorized representative shall record in the office of the recorder of the county in which the accident occurred a written statement that sets forth the name and address of the insured as they appear in the records of the insurer, the name and address of the insurer at the insurer’s principal office in this state, the amount claimed pursuant to this subsection and, to the best of the insurer’s knowledge, the names and addresses of all persons, firms and corporations and their insurance carriers that the insured or the insured’s legal representative alleges are liable for damages arising from the accident. Within five days after recording the lien, the insurer shall also mail a copy of the lien, postage prepaid, to the insured and to each person, firm and corporation and their insurance carriers alleged to be liable for damages at the address given in the statement. The recording of the lien is notice of the lien to all persons, firms and corporations that are liable for damages regardless of whether they are named in the lien. The recorder shall endorse on the lien recorded pursuant to this subsection the date and hour of receipt and all facts that are necessary to indicate that the lien has been recorded. The lien may be amended to reflect payments to the insured made after the lien is recorded. Within thirty days after the lien is satisfied, the lienholder shall issue and record a release of the lien.
K. Any common law prohibition against assignments of causes of action for personal injuries is abrogated to the extent provided in subsection I of this section.
L. An insurer is not required to offer, provide or make available coverage conforming to this section in connection with any general commercial liability policy, excess policy, umbrella policy or other policy that does not provide primary motor vehicle insurance for liabilities arising out of the ownership, maintenance, operation or use of a specifically insured motor vehicle.
M. If an insured makes a bodily injury or death claim under uninsured or underinsured motorist coverage based on an accident that involved an unidentified motor vehicle and no physical contact with the motor vehicle occurred, the insured shall provide corroboration that the unidentified motor vehicle caused the accident. For the purposes of this subsection, “corroboration” means any additional and confirming testimony, fact or evidence that strengthens and adds weight or credibility to the insured’s representation of the accident.