IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

FRANK AND BETTINA GAMBRELL,

Plaintiffs/Appellants,

v.

IDS PROPERTY CASUALTY INSURANCE COMPANY,

Defendant/Appellee.

No. 2 CA-CV 2014-0147

Filed September 9, 2015

Appeal from the Superior Court in Pima County

No. C20124603

The Honorable Ted B. Borek, Judge

The Honorable D. Douglas Metcalf, Judge

AFFIRMED

COUNSEL

Goldberg & Osborne

By David J. Diamond and D. Greg Sakall, Tucson

Counsel for Plaintiffs/Appellants

Jones, Skelton & Hochuli, PLC

By Charles M. Callahan, Jennifer B. Anderson,

and Sean M. Moore, Phoenix

Counsel for Defendant/Appellee
GAMBRELL v. IDS PROP. CAS. INS. CO.

Opinion of the Court

2

OPINION

Presiding Judge Miller authored the opinion of the Court, in which

Chief Judge Eckerstrom and Judge Espinosa concurred.

M I L L E R, Presiding Judge:

¶1 Frank and Bettina Gambrell appeal from the trial court’s

orders granting summary judgment in favor of defendants IDS 

Property Casualty Insurance Company and Stacey Harrish and 

denying the Gambrells’ motion for new trial. They contend the 

court erred by concluding A.R.S. § 20-259.01(C) permits insurers to

exclude underinsured motorist coverage (UIM) when the insured is 

driving a large truck used in a business for transporting property. 

We affirm.

Factual and Procedural Background

¶2 The following facts are undisputed. In 2011, Frank 

Gambrell was driving a semi-tractor tanker, transporting milk for 

his employer, when another driver lost control of his vehicle and 

crashed into the tanker. For Frank’s serious injuries, he received 

$15,000 from the other driver’s insurance policy and $100,000 in 

UIM coverage from his employer’s policy. He then sought an 

additional $100,000 from the UIM coverage of his personal 

automobile liability insurance policy provided by IDS. IDS denied 

Frank’s claim, concluding the UIM coverage did not apply to him 

while driving the milk truck. The UIM clause contained in Frank’s 

automobile policy provided:

We will pay compensatory damages for 

bodily injury caused by accident which an 

insured person is legally entitled to recover 

from the owner or operator of an 

uninsured motor vehicle or underinsured 

motor vehicle. We will pay those damages 
GAMBRELL v. IDS PROP. CAS. INS. CO.

Opinion of the Court

3

for bodily injury an insured person suffers 

in a car accident while occupying a private 

passenger car or utility car, or as a 

pedestrian, subject to the limits of the 

policy.

“Utility car” was defined as one “not used in a business or 

occupation other than farming or ranching,” “with a rated load 

capacity of 2,000 pounds or less of the pick-up, van or panel truck 

type.” The Gambrells had not purchased a specific operator’s policy 

for the milk truck.

¶3 The Gambrells’ complaint against IDS alleged breach of 

contract and bad faith, and later added claims adjuster Harrish as a 

defendant. 1 The defendants filed a joint motion for summary 

judgment on the contract claim. The trial court granted the motion 

and dismissed the bad faith claim, concluding it was “intertwined” 

with the breach of contract claim.

¶4 The Gambrells filed a motion for new trial, restating the 

arguments made in their response to the motion for summary 

judgment. 2 The trial court denied the motion and this appeal 

followed. We review the denial of a motion for new trial for an 

abuse of discretion, but we review de novo a trial court’s ruling on a 

motion for summary judgment. Jackson v. Nationwide Mut. Ins. Co., 

228 Ariz. 197, ¶ 8, 265 P.3d 379, 381 (App. 2011).

Discussion

¶5 The Uninsured Motorist Act generally requires insurers 

to make available UIM coverage in amounts not less than the bodily 

injury or death liability limits of a motor vehicle liability policy, and 

requires the insurer to include UIM coverage if requested by the 

 

1Hereinafter, we refer to both defendants collectively as “IDS.”

2 Judge Borek, who had granted the motion for summary 

judgment, retired before the motion for new trial was filed. Judge 

Metcalf ruled on the motion for new trial.
GAMBRELL v. IDS PROP. CAS. INS. CO.

Opinion of the Court

4

insured. 3 A.R.S. § 20-259.01(A), (B). Subsection C, however, 

provides a permissive option:

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 trial court held that subsection C meant that insurers need not 

offer or provide UIM coverage to owners or operators of commercial 

vehicles.

4 The court concluded that Frank’s policy lacked coverage 

of the milk tanker, and IDS did not breach its contract or act in bad 

faith in denying Frank’s UIM claim. The Gambrells argue, as they 

did below, that their personal automobile liability policy’s UIM

coverage covered Frank in any vehicle, including the milk truck; that 

subsection C creates only a limited exception applicable when a 

commercial vehicle owner or operator specifically seeks to insure 

that vehicle; and, in the alternative, that the policy language did not 

comply with the UIM statute.

5

 

3Most provisions of the Act also apply to uninsured motorist 

coverage (UM).

4For purposes of this appeal, we will refer to “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” as referenced in § 20-259.01(C) as “commercial 

vehicles.”

5The Gambrells’ arguments interweave similar contentions, 

which we address in a linear manner for ease of understanding.
GAMBRELL v. IDS PROP. CAS. INS. CO.

Opinion of the Court

5

Portability of UIM Coverage to a Commercial Vehicle

¶6 The Gambrells first argue the UIM coverage they 

purchased for their personal automobiles was portable to the milk 

truck, based on the requirements of § 20-259.01 and case law 

interpreting it. Our supreme court has repeatedly interpreted

subsection C as an exception to the general requirements of 

§ 20-259.01. In Calvert v. Farmers Insurance Company of Arizona, 144 

Ariz. 291, 294, 697 P.2d 684, 687 (1985), the court concluded a

provision in the plaintiff’s policy disallowing UM coverage when 

the insured was injured in his own uninsured motor vehicle6 was an

“other vehicle” exclusion that contravened the public policy of the

statute. In doing so, the court noted,

The only exception to the mandatory 

requirement of uninsured motorist 

protection[

7] under the Act is contained in 

[former] A.R.S. § 20-259.01(D), which 

expressly excludes vehicles “used as public 

or livery conveyances or rented to others or 

which are used in the business primarily to 

transport property or equipment.”

Id.; see also Employers Mut. Cas. Co. v. McKeon, 159 Ariz. 111, 113, 765 

P.2d 513, 515 (1988) (“The statute only excepts public livery, rental, 

or commercial transportation vehicles from [the UM coverage 

offering] requirement.”).

¶7 Additionally, this court addressed the Gambrells’ 

primary argument more than thirty years ago when a taxi driver 

sought to claim UM coverage from his personal automobile insurer 

for an accident that occurred while he was driving his taxi. Warfe v. 

Rocky Mountain Fire & Cas. Co., 121 Ariz. 262, 263, 589 P.2d 905, 906 

 

6In Calvert, the insured was driving a motorcycle he owned 

but had failed to insure under the family automobile insurance 

policy. 144 Ariz. at 292-93, 697 P.2d at 685-86.

7UM coverage was mandatory until 1993. 1993 Ariz. Sess. 

Laws 5th Spec. Sess., ch. 1, § 3.
GAMBRELL v. IDS PROP. CAS. INS. CO.

Opinion of the Court

6

(App. 1978). We found that the exclusion for vehicles used as a 

public conveyance found in the driver’s personal automobile 

liability policy was valid because of subsection C. Id. at 264, 589 

P.2d at 907.

¶8 The Gambrells argue Warfe is distinguishable because it 

addressed UM coverage, not UIM coverage, but do not provide any 

support for this contention. Although UM and UIM coverage are 

“separate and distinct and apply to different accident situations,” 

§ 20-259.01(H), by its express terms subsection C applies to UM 

coverage described in subsection A and UIM coverage in subsection 

B, § 20-259.01(C). If the legislature had intended to exclude UIM 

coverage, it could have done so by eliminating the reference to 

subsection B. Gambrells’ argument would require us to rewrite 

subsection C, which we cannot do. See In re Estate of Bolton, 233 Ariz. 

584, ¶ 19, 315 P.3d 1241, 1246 (App. 2013).

¶9 The Gambrells next argue Warfe must be overruled

because the public policy behind § 20-259.01 changed in the 1980s. 

Specifically, the Gambrells argue UIM coverage is now “personal”

and “portable,” and therefore the UIM coverage they purchased 

under their personal liability policies covered Frank when he was 

driving the milk truck. They also note that pre-1980s cases 

interpreting § 20-259.01 have been overruled due to the shift in 

public policy.

¶10 The Gambrells are correct that personal liability policies 

are “portable.” The Arizona Supreme Court announced in Calvert

that UM coverage is personal to the insured8 and therefore portable, 

covering the insured “when in another automobile, when on foot, 

when on a bicycle or when sitting on a porch.” 144 Ariz. at 296, 697 

P.2d at 689; see also Higgins v. Fireman’s Fund Ins. Co., 160 Ariz. 20, 23, 

770 P.2d 324, 327 (1989) (applying same portability to UIM 

 

8UM and UIM coverage are defined as “first-party” insurance 

protecting the driver, in contrast with general liability insurance, 

which is “third-party” coverage. See Higgins v. Fireman’s Fund Ins. 

Co., 160 Ariz. 20, 23, 770 P.2d 324, 327 (1989); Farmers Ins. Co. of Ariz. 

v. Young, 195 Ariz. 22, ¶ 16, 985 P.2d 507, 512 (App. 1998).
GAMBRELL v. IDS PROP. CAS. INS. CO.

Opinion of the Court

7

coverage). UM and UIM coverage are triggered when the insured’s 

bodily injury or death is caused by an uninsured or underinsured 

vehicle. See § 20-259.01(E) (defining “uninsured motorist coverage” 

as coverage for injury or death “if the motor vehicle that caused the 

bodily injury or death is not insured by a motor vehicle liability 

policy”); see also Lowing v. Allstate Ins. Co., 176 Ariz. 101, 106-07, 859 

P.2d 724, 729-30 (1993) (reviewing policy and holding physical 

contact with uninsured motor vehicle not required to trigger policy). 

Although the statute does not explicitly state that UIM coverage is 

personal and portable, the legislature has never explicitly addressed

this interpretation, see § 20-259.01, and courts continue to rely on it, 

see, e.g., Beaver v. Am. Family Mut. Ins. Co., 234 Ariz. 584, ¶ 11, 324 

P.3d 870, 873 (App. 2014) (noting UIM coverage must be portable for 

person insured under policy, but limiting coverage to those insured 

under policy in first instance).

¶11 The Gambrells also accurately observe that several cases 

previously allowing UM or UIM policy exclusions have been 

overruled in favor of allowing portability of such insurance to other 

vehicles and situations. See Brown v. State Farm Mut. Auto. Ins. Co., 

163 Ariz. 323, 329, 788 P.2d 56, 62 (1989) (overruling one case); 

Calvert, 144 Ariz. at 297, 697 P.2d at 690 (overruling three cases). But 

the more recent cases have not directly affected the holding of Warfe.

In recognizing the shift in public policy, courts relied on the 

presumption that the legislature would enumerate an exception if 

one was intended. See Calvert, 144 Ariz. at 294, 697 P.2d at 687; see 

also McKeon, 159 Ariz. at 113, 765 P.2d at 515 (“[E]numeration of 

exceptions in a statute creates a strong inference that the legislature 

intended no others.”). Of particular importance, and as noted 

above, the Calvert court cited subsection C’s commercial-vehicle 

exception as an example of an enumerated exception. 144 Ariz. at 

294, 697 P.2d at 687; see also McKeon, 159 Ariz. at 113, 765 P.2d at 515. 

Because Warfe relied on the same subsection when it allowed the 

policy exclusion, there is no indication that the post-Calvert shift in 
GAMBRELL v. IDS PROP. CAS. INS. CO.

Opinion of the Court

8

case law undermines the reasoning of Warfe.

9 121 Ariz. at 263, 589 

P.2d at 906.

¶12 The Gambrells also rely on a federal district court case 

analyzing Pennsylvania law to support their argument that their 

coverage was portable to the milk truck. Nationwide Mut. Ins. Co. v. 

Swisher, 731 F. Supp. 691, 697 (E.D. Pa. 1989). In the applicable 

statute in that case, however, UM coverage was generally 

mandatory, and could be rejected by a commercial driver only in 

writing. Id. Here, UIM coverage is generally not mandatory under 

§ 20-259.01,

10 and need not be offered at all to a commercial vehicle 

operator. We do not find the reasoning in Swisher applicable.

¶13 The Gambrells also contend subsection C does not 

allow an exclusion because our supreme court stated in 2012 that the 

anti-stacking provision in § 20-259.01(H) is the “only [Uninsured 

Motorist Act] provision that authorizes any limitation of UM or UIM 

coverage.” See Am. Family Ins. Co. v. Sharp, 229 Ariz. 487, ¶ 12, 277 

P.3d 192, 196 (2012). IDS argues the apparent conflict between Sharp

and the language of the statute is because the exception in 

subsection C does not permit a policy “exclusion” or “limitation” on 

properly-purchased UIM coverage, but permits insurance 

companies to write policies that simply do not include commercial 

vehicle UIM coverage. The trial court reached the same conclusion, 

finding, “I don’t think you have the coverage under (c) unless it’s 

provided for.” We agree.

¶14 First, Sharp addressed the anti-stacking provision, not 

the commercial vehicle provision, and noted in dicta that it was the 

 

9There have been no substantive alterations to subsection C 

since Warfe. Compare 1972 Ariz. Sess. Laws, ch. 157, § 1, with 2003 

Ariz. Sess. Laws, ch. 86, § 1. Nonetheless, we recognize that either 

the legislature or our supreme court may extend portability 

principles to operators of commercial vehicles, but unless that 

occurs, Warfe controls.

10UM coverage is mandatory for certain commercial vehicles 

that transport passengers. A.R.S. § 28-4033(A)(2).
GAMBRELL v. IDS PROP. CAS. INS. CO.

Opinion of the Court

9

only exception. See id. Further, there was no reference to subsection 

L, another clear exception to the requirement that insurers offer UM 

and UIM coverage. § 20-259.01(L).

11 But even assuming the antistacking provision is the only “limitation” allowed in the UM/UIM

statute, the approach by the trial court and IDS—that the lack of 

commercial coverage is not an “exclusion” but merely a lack of 

purchased coverage—finds support in a case interpreting subsection 

L, Petrusek v. Farmers Insurance Company of Arizona, 193 Ariz. 552, 975 

P.2d 142 (App. 1998).

¶15 In Petrusek, the court concluded it would not impute 

UIM coverage to a business automobile policy because the policy fit 

the requirements of subsection L.12 Id. ¶¶ 9-11. The court did not 

refer to this gap in coverage as an exclusion; rather, because such 

coverage was not required, it would not be imputed to the policy. 

Id. Essentially, the policy lacked the coverage. Similarly, here, 

because subsection C treats UIM coverage differently for commercial 

vehicles, the Gambrells’ policy would not cover the milk truck 

unless specifically requested and included. See id. ¶ 9. Because such 

an offering was not mandatory and there is no indication the 

Gambrells sought to insure the milk truck, coverage cannot be 

imputed.13 See id.

 

11 Subsection L provides an exception to the mandatory 

offering requirement for general commercial liability policies, excess 

policies, or other policies that do not provide primary motor vehicle 

insurance for a specifically insured motor vehicle. § 20-259.01(L).

12Although the court in Petrusek refers to subsection K, the 

operative language was moved to subsection L. Compare Petrusek, 

193 Ariz. 552, ¶ 9, 975 P.2d at 144 (quoting former subsection K) with 

§ 20-259.01(L).

13This does not alter our conclusion that Warfe controls, even 

though Warfe uses “exclusion” language, rather than referring to 

subsection C as an exception to the general rules of the statute.
GAMBRELL v. IDS PROP. CAS. INS. CO.

Opinion of the Court

10

Applicability of the Commercial Vehicle Exception

¶16 The Gambrells argue subsection C only applies when an 

insured specifically seeks an owner’s or operator’s policy on a 

commercial vehicle, and because they purchased their policy for 

their personal vehicles under subsection B, the language of 

subsection C did not apply. First, this conflicts with the holding in 

Warfe, as discussed earlier. See 121 Ariz. at 263, 589 P.2d at 906. 

Further, nothing in the language of subsection C indicates that it 

only applies when an insured seeks to specifically insure the 

commercial vehicle. § 20-259.01(C). The subsection simply states 

insurers may make coverage available “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.” Id. An operator is a person “in 

actual physical control of a motor vehicle,” as Frank was. A.R.S. 

§ 28-4001(6). That Frank only sought insurance from IDS for his 

personal vehicles does not change the fact that Frank was such an 

operator. 14 UIM coverage for ownership or operation of a 

commercial vehicle was not required to be included in their personal 

vehicle policy, and it was not included. The Gambrells lacked 

coverage for Frank’s operation of the milk truck.

¶17 Additionally, under the Gambrells’ interpretation, 

owners or operators could avoid the statute’s enumerated exception 

by insuring their other vehicles. We acknowledge the general public 

policy behind UIM insurance is that it is portable and generally 

covers most injuries caused by underinsured drivers, including

those that occur while the insured is in a vehicle he owned but failed 

to sufficiently insure. However, prior cases detailing that public 

policy did not concern commercial vehicles, which are treated

differently under the statute. See § 20-259.01(A) through (C); 

Higgins, 160 Ariz. at 23, 770 P.2d at 327 (“other vehicle” exclusion 

void); McKeon, 159 Ariz. at 115, 765 P.2d at 517 (named driver 

exclusion void); Spain v. Valley Forge Ins. Co., 152 Ariz. 189, 194, 731 

 

14We note the Gambrells repeatedly state that Frank was “in” 

the milk truck. We limit our holding to the undisputed facts of this 

case, in which Frank was the driver of the commercial vehicle.
GAMBRELL v. IDS PROP. CAS. INS. CO.

Opinion of the Court

11

P.2d 84, 89 (1986) (offset provisions void); Calvert, 144 Ariz. at 294, 

697 P.2d at 687 (“other vehicle” exclusion void). The Gambrells’ 

argument to expand the reasoning of these cases to encompass 

commercial vehicles is unavailing, especially in view of the more 

directly applicable authority from Warfe.

Validity of Policy Language

¶18 The Gambrells argue in the alternative that even if 

§ 20-259.01(C) applies, IDS was required to mirror the language of 

the statute to invoke the limitations in its policy. They rely on State 

Farm Mutual Automobile Insurance Company v. Lindsey, 182 Ariz. 329, 

897 P.2d 631 (1995), a case in which our supreme court addressed

the anti-stacking provision now found in § 20-259.01(H). Relying on 

previous case law that allowed for anti-stacking clauses in policies if 

the language is “‘unambiguous and follow[s] the provisions’” of the 

statute, the court found the policy failed to effectuate the permissible 

limitation. Id. at 331-32, 897 P.2d at 633-34. Section 20-259.01(H) is 

unique, however, in that it requires the insurer to notify the insured 

about the limitations. Further, Lindsey involved a policy limitation, 

whereas the Gambrells’ policy merely lacked non-mandatory 

coverage. The Gambrells also cite no case law imputing this

mirrored-language requirement to subsection (C). Nothing in 

subsection (C) requires notice of a lack of UIM insurance, and the 

Gambrells do not argue the policy language was unclear or 

ambiguous. Because we find the lack of commercial vehicle 

coverage was permissible pursuant to § 20-259.01(C) and there is no

requirement that IDS mirror the language of the statute in order to 

trigger the exception, the trial court did not err by granting 

summary judgment in favor of IDS. Further, because the Gambrells’ 

motion for new trial restated their arguments in opposition to IDS’s

motion for summary judgment, the court did not err by denying the 

motion for new trial.

Attorney Fees

¶19 The Gambrells seek attorney fees pursuant to A.R.S. 

§ 12-341.01. Because they are not the successful party on appeal, as 

required by § 12-341.01(A), we decline to award attorney fees.
GAMBRELL v. IDS PROP. CAS. INS. CO.

Opinion of the Court

12

Disposition

¶20 For the foregoing reasons, we affirm.