IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION T WO

F RANK AND B ETTINA G AMBRELL , Plaintiffs/Appellants
,

v.

IDS P ROPERTY C ASUALTY I NSURANCE C OMPANY ,

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/AppelleeGAMBRELL v. IDS PROP

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. INS. CO. Opin ion of the Court

2 OPINI ON

Presiding J udge Miller authored the opinio n 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 defendant s 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 un der insured motorist coverage (U I M) when the insured is driving a large truck used in a busin ess for transporting property. W e 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 d r iver 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 U I M coverage did not apply to him while driving the milk truck

. The U I M clause contained in Frank’s automobile policy provided :

We will pay compensa tory 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 damagesGAMBRELL v. IDS PROP

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3 for bodily injury an insured person suffers in a car accident while occupying a priva te 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

contr act and bad faith, and later add ed 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, re stating the arguments made in the ir 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 T he U ninsured Motorist Act generally require s 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 require s the insurer to include UIM coverage if requested by the

1 Hereinafter, 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

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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

ow ners 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.

T he trial court held that subsection C meant that insurers need not offer or provide UIM coverage to owners or operators of commercial vehicle s

. 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 fa ith 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 specificall y seeks to insure that vehicle; and
, in the alternative, that the policy language did not comply with the UIM statute

. 5

3 Most provisions of the Act also apply to uninsured motorist coverage (UM).

4 For purposes of this appeal, we will refer to “motor vehicles that are used a s 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.”

5 The Gambrells’ arguments interweave similar contentions, which we address in a linear manner for ease of understanding.GAMBRELL v. IDS PROP

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5 Portability of UIM Coverage to a Commercial Vehicle

¶6 The Gambrells first argue the UIM coverage they purchased for their personal automo biles was portable to the milk truck, based on the requirements of § 20

- 259.01 and case law interpreting it. O ur 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 vehicle 6 was an “other vehicle” exc lusion that contravened the public policy of the

statute . In doing so, the court noted
,

T he 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) , whi ch expressly excludes veh icles “ 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 onl y 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 M ountain Fire & Cas. Co. , 121 Ariz. 262, 263, 589 P.2d 905, 906

6 In 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

.

7 UM coverage was mandatory unt il 1993. 1993 Ariz. Sess. Laws 5th Spec. Sess., ch. 1, § 3

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6 (App. 1978)

. We found that the exclusion for vehicles used as a pub lic 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 a ny 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 sub section 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 insured 8 and therefore portable
, covering the insured “when in another automobile, when o n 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

8 UM 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 In s. 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)

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7 coverage)

. UM and UIM coverage are trigger ed 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.2 d 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, t he legislature has never explicit ly addressed this interpretation, see § 20

- 259.01 , and courts continue to rely on it,
see, e.g. , Beaver v. Am. Fam ily 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, b ut limiting coverage to those insured under policy in first instance).

¶11 T he Gambrells also accurately observe that several cases previously allowing UM or UIM policy exclusions have been overruled i n 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 6 90 (overruling three cases)

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

. I n 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 allow ed the policy e xclusion
, there is no indication that the post

- Calvert shift inGAMBRELL v. IDS PROP

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8 case law undermine s the reasoning of Warfe

. 9 121 Ariz. at 263, 589 P.2d at 906

. ¶12 T he 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

. Na tionwide 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 T he Gambrells also contend subsection C does not allow an exclusion because our s upreme 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. Fam ily 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 wri te 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 pro vision
, not the commercial vehicle provision, and noted in dicta th at it was the

9 There 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.

10 UM coverage is mandatory for certain commercial vehicles that transport passengers. A.R.S. § 28

- 4033(A)(2)

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9 only exception

. See id. Further , there was no reference to subsection L, a nother clear exception to the requirement that insurers offer UM and UIM coverage. § 20

- 259.01(L)

. 11 But even assuming the anti

stacking 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 suppor t in a case interpreting subsection L
, P etrusek v. Farmers Ins urance Co mpany of Ariz ona , 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 wa s not required, it would not be imputed to the policy. Id

. Essentially, the policy lacked the coverage. Similarly, here, b ecause subsection C treats UIM coverage differently for commercial vehicle s , the Gambrells’ policy would not cover the milk truck

u nless specifically requested and included

. See i d. ¶ 9

. Because such an offering was not mandatory and there is no indication the Gambrells sought to insure the milk truck, coverage c an not 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)

.

12 Although 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 (quo ting former subsection K) with § 20

- 259.01(L)

.

13 This 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

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10 Applicability of the Commercial Vehicle Exception

¶16 T he 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 subsect ion 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 insu red 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 tha t 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

- 400 1 (6)

. T hat Frank only sought insurance from IDS for his personal vehicle s does not change the fact that Frank was such an operator. 14 U IM 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, u nder the Gambrells’ interpretation, owners or operators c ould avoid the statute’s enumerated exception by insuring their other vehicles. We acknowledge the general pub lic policy behind UIM insurance is that it is portable and generally

covers most injuries caused by un der insured drivers , including those that occur while the insured is in a vehicle he owned but failed

to sufficiently insure . However
, prior cases detaili ng 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

14 We 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

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11 P.2d 84 , 89 (198 6 ) (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 the se cases to encompass commercial vehicles is unavailing, especially in view of the more direct ly applicable authority from Warfe

. Validity of Policy Language

¶18 T he Gambrells argue in the alternative that even if § 20

- 259.01(C) applies, IDS w as required to mirror the language of the statute to invoke the limitations in its policy. They rely on State Farm Mutual Automobile Insurance Co mpany 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 Ga mbrells’ policy merely lacked non

- mandatory
coverage. T he 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 t he 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 the ir arguments in opposition to IDS’s motion for summary judgment, the court did n ot 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

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12 Disposit ion

¶20 F or the foregoing reasons, we affirm.