IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2023 ND 84

Nodak Insurance Company, Plaintiff and Appellee

v.

Farm Family Casualty Insurance Company, Defendant and Appellant

and

Mountain West Farm Bureau Mutual 

Insurance Company; Samuel Hamilton; 

Gordon Williams, individually and as

parent and next friend of H.W., a minor;

and Dawn Hustad and Kris Meduna, 

individually and as parents and next

friends of A.M., a deceased minor, Plaintiffs

No. 20220114

Appeal from the District Court of Williams County, Northwest Judicial 

District, the Honorable Kirsten M. Sjue, Judge.

AFFIRMED.

Opinion of the Court by Bahr, Justice. Justice Tufte filed a dissenting opinion.

Scott K. Porsborg (argued) and Austin T. Lafferty (appeared), Bismarck, ND, 

for plaintiff and appellee.

Klay C. Ahrens (argued) and Joseph M. Barnett (appeared), Edina, MN, for

defendant and appellant.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

MAY 9, 2023 

STATE OF NORTH DAKOTA
1

Nodak Ins. Co. v. Farm Family Casualty Ins. Co.

No. 20220114

Bahr, Justice.

[¶1] Farm Family Casualty Insurance Company (“Farm Family”) appeals 

from a judgment after the district court granted summary judgment to Nodak 

Insurance Company (“Nodak”) and denied, in part, summary judgment to 

Farm Family. We conclude the automobile policy Farm Family issued to its 

insureds had not “ceased” under the policy language and remained in effect at 

the time of the April 2019 motor vehicle accident. We affirm.

I

[¶2] This case arises out of an April 6, 2019 motor vehicle accident. The 

following facts relevant to this appeal are undisputed.

[¶3] Samuel Hamilton is the son of Bruce and Diana Hamilton. At the time 

of the April 2019 accident at issue, Samuel Hamilton was a resident of North 

Dakota, and his parents were residents of Montana. Before the accident, Farm 

Family issued an automobile insurance policy to Bruce and Diana Hamilton 

with an effective policy period of October 19, 2018 to April 19, 2019. The Farm 

Family policy was initially negotiated and issued to the Hamiltons in Vermont. 

The policy insured a 2011 pickup truck. The policy provided bodily injury 

liability coverage limits of $250,000 per person and $500,000 per accident.

[¶4] After moving to Montana, the Hamiltons obtained an insurance policy 

from Mountain West Farm Bureau Mutual Insurance Company (“Mountain 

West”) that also insured the 2011 pickup truck. The Mountain West policy had 

a policy term that ran from December 2, 2018 to June 2, 2019 and provided 

bodily injury liability coverage limits of $100,000 per person and $300,000 per 

accident.

[¶5] In April 2019, Samuel Hamilton was driving the insured 2011 pickup 

truck in Williams County. Samuel Hamilton reportedly ran a stop sign while 

intoxicated and struck a vehicle driven by H.W., in which A.M. was a 

passenger. As a result of the accident, H.W. was seriously injured and A.M. was 
2

killed. Nodak insured the vehicle H.W. and A M. occupied at the time of the 

accident.

[¶6] Nodak commenced this declaratory judgment action seeking a 

declaration Farm Family’s automobile policy was in effect at the time of the 

April 2019 accident, Farm Family’s policy cannot be retroactively cancelled,

and the vehicle driven by the insureds’ son was not an “underinsured motor 

vehicle” under North Dakota law. Farm Family answered and denied Nodak’s 

claims. Farm Family asserted its policy effectively ceased or terminated on 

December 2, 2018 because its named insureds, Bruce and Diana Hamilton,

obtained the insurance policy through Mountain West. Based on the policy 

language, Farm Family asserted its policy was not in effect at the time of the 

accident.

[¶7] Nodak moved the district court for summary judgment, and Farm 

Family made a cross-motion for summary judgment. After a hearing, the court 

entered an order granting Nodak’s motion in part, concluding the Farm Family 

policy was in effect and provided coverage for the vehicle driven by the 

insureds’ son, Samuel Hamilton, at the time of the accident.

[¶8] After further briefing and a hearing, the district court entered a second 

order on the summary judgment cross-motions. The court declared the 2011 

pickup truck driven by the named insureds’ son was not an “underinsured 

motor vehicle” and Farm Family and Mountain West must share pro rata in 

paying the loss. A final judgment was entered.

II

[¶9] Our standard for reviewing summary judgment is well established:

Summary judgment is a procedural device for the prompt 

resolution of a controversy on the merits without a trial if there 

are no genuine issues of material fact or inferences that can 

reasonably be drawn from undisputed facts, or if the only issues to 

be resolved are questions of law. A party moving for summary 

judgment has the burden of showing there are no genuine issues 

of material fact and the moving party is entitled to judgment as a 
3

matter of law. In determining whether summary judgment was 

appropriately granted, we must view the evidence in the light most 

favorable to the party opposing the motion, and that party will be 

given the benefit of all favorable inferences which can reasonably 

be drawn from the record. On appeal, this Court decides whether 

the information available to the district court precluded the 

existence of a genuine issue of material fact and entitled the 

moving party to judgment as a matter of law. Whether the district 

court properly granted summary judgment is a question of law 

which we review de novo on the entire record.

Borsheim Builders Supply, Inc. v. Manger Ins., Inc., 2018 ND 218, ¶ 7, 917 

N.W.2d 504 (quoting Forsman v. Blues, Brews & Bar-B-Ques, Inc., 2017 ND 

266, ¶ 9, 903 N.W.2d 524).

III

[¶10] Farm Family argues the district court erred in determining the 

automobile policy it issued to its named insureds was in full force and effect 

and provided coverage on the 2011 pickup truck at the time of the April 2019 

accident.

[¶11] “Insurance policy interpretation is a question of law, which is fully 

reviewable on appeal.” Dahms v. Nodak Mut. Ins. Co., 2018 ND 263, ¶ 8, 920 

N.W.2d 293 (quoting Borsheim, 2018 ND 218, ¶ 8). “This Court independently 

examines and construes the insurance contract on appeal to decide whether 

coverage exists.” Id. We construe policy language to give effect to the parties’ 

mutual intention at the time of contracting:

We look first to the language of the insurance contract, and if the 

policy language is clear on its face, there is no room for 

construction. If coverage hinges on an undefined term, we apply the 

plain, ordinary meaning of the term in interpreting the contract. 

While we regard insurance policies as adhesion contracts and 

resolve ambiguities in favor of the insured, we will not rewrite a 

contract to impose liability on an insurer if the policy 

unambiguously precludes coverage. We will not strain the 

definition of an undefined term to provide coverage for the insured. 

We construe insurance contracts as a whole to give meaning and 
4

effect to each clause, if possible. The whole of a contract is to be 

taken together to give effect to every part, and each clause is to 

help interpret the others.

Dahms, at ¶ 8 (quoting Borsheim, at ¶ 8) (emphasis added).

[¶12] Farm Family contends the material facts are undisputed and this case

involves interpretation of its policy. The policy contains the following language:

10. CANCELLATION OR NONRENEWAL OF THIS POLICY

. . . .

If other insurance is obtained by you on your insured car, 

similar insurance afforded under this policy for that car will 

cease on the effective date of the other insurance.

If different requirements for cancellation and nonrenewal or 

termination of policies are applicable because of the laws of 

your state, we will comply with those requirements.

[¶13] Farm Family argues this policy language is clear and unambiguous and 

its policy effectively “ceased” on December 2, 2018, which is the date their 

named insureds obtained an alleged “similar” policy of insurance through 

Mountain West. Farm Family argues because its policy “ceased,” it follows the 

policy was not in effect at the time of the April 2019 accident and cannot 

provide coverage on the vehicle the named insureds’ son was operating at the 

time of the accident. Farm Family asserts the term “cease” is clear and 

unambiguous. Farm Family further contends the “termination by substitution” 

or “cancellation by substitution” doctrine is well-grounded in insurance law 

and dispositive.

[¶14] The preliminary issue on appeal is whether, in the context of the 

automatic termination clause at issue, the language “similar insurance” means 

the other insurance obtained by the insureds is similar only “in type” or similar 

“in type and in amount.” We hold it is the latter. In construing automatic 

termination clauses, other courts have also held insurance policies differing in 

the amount of coverage provided are not considered “similar insurance.” See, 

e.g., United Fire & Cas. Co. v. Victoria, 576 N.W.2d 118, 120-21 (Iowa 1998); 

Emps. Mut. Cas. Co. v. Martin, 671 A.2d 798, 800 (R.I. 1996); S.C. Farm 
5

Bureau Mut. Ins. Co. v. Courtney, 536 S.E.2d 689, 693 (S.C. Ct. App. 2000), 

aff’d on different grounds, 563 S.E.2d 648 (S.C. 2002); Motors Ins. Corp. v. 

Bodie, 770 F. Supp. 547, 550 (E.D. Cal. 1991).

[¶15] For example, in Victoria, 576 N.W.2d at 120-21, the court held policies 

with differing limits of liability were not “similar” under an automatic 

termination clause. In rejecting the insurer’s argument policies with different 

limits were “similar,” the court explained:

It might well be the understanding of an insurance professional 

that these policies are similar. However, to an average policy buyer, 

a policy with substantially lower limits would not likely be viewed 

as “similar.” When the consequences of buying a similar policy are 

so serious as to cause an automatic termination, an insured should 

be informed as to what constitutes “similar” coverage. We have 

said that, [w]hen interpreting ambiguous words in insurance 

contracts, the language should be interpreted from the viewpoint 

of an ordinary person, not a specialist or expert.

Id. at 120 (citation and quotation marks omitted). The court, determining an 

ambiguity existed, construed the policy in favor of the insured, stated the 

differences included the disparate liability limits, and concluded the policies at 

issue were not “similar” for purposes of the automatic termination clause. Id.

at 121.

[¶16] In Martin, 671 A.2d at 801, the court held the disparity in coverage 

between two policies providing uninsured/underinsured-motorist coverage was 

sufficient to preclude the interpretation the two policies were similar 

insurance. In that case, one policy provided coverage in the amount of $300,000 

per accident, while the other policy provided coverage in the amount of 

$100,000 per person with a $300,000 limit per accident, resulting in a 

difference in the total amount of damages recoverable. Id. Likewise, in 

Courtney, 536 S.E.2d at 693, the court held when a second, subsequent 

automobile insurance policy differs in both the amount of coverage and the 

kind of coverage provided, the policies will not be held to be “similar” under an 

automatic termination provision. Id.
6

[¶17] In Bodie, 770 F. Supp. at 550, a federal district court held as a matter of 

law the automatic termination provision was “not plain and clear”:

The provision only operates to terminate “similar insurance 

provided by this policy” in the event that “you [the insured] obtain 

other insurance on ‘your covered auto.’” “Similar” is not defined by 

the policy and may be used in English to mean the “same” or 

“identical” though it is defined as “showing some resemblance; 

related in appearance or nature; alike though not identical.” 

American Heritage Dictionary 1206 (1979).1 It is difficult to 

imagine being called upon to interpret a more imprecise term. This 

inherent vagueness fully justifies the conclusion that the term 

“similar” is ambiguous. Under applicable rules of interpretation, 

therefore, the court cannot interpret “similar” to mean “showing 

some resemblance” for that would be to resolve the ambiguity in

favor of the insurer.

Id. at 550 & n.1 (stating in footnote 1, “The full usage note in the American 

Heritage Dictionary provides: ‘Similar is often misused in nontechnical 

contexts where same or identical would convey the sense actually intended.’”). 

The court held the two insurance policies at issue, while providing for 

automobile insurance, were not “similar” as a matter of law because the 

policies contained different limits for third-party liability. Id. at 550-51. See 

also Hodgdon v. Barr, No. CV 940048077S, 1996 WL 798748, *2 (Conn. Super.

Ct. Apr. 26, 1996) (concluding “the phrase ‘similar insurance’ contained in the 

automatic termination provision of the [automobile insurance] policy requires 

comparability both as to type and amount of liability coverage”); 1 Auto. Liab. 

Ins. 4th § 8:7 (October 2022 Update) (“The ‘automatic termination’ requirement 

of ‘similar insurance’ may not be met if the policy limits of the new policy are 

substantially less than the older policy limits, and where the term ‘similar’ is 

not defined in the policy, it has been held ambiguous and, therefore, 

inapplicable to subsequent acquired policies containing lower limits of 

coverage.”).

[¶18] We find the above authorities instructive. When coverage hinges on an 

undefined term, we apply the plain, ordinary meaning of the term in 

interpreting the contract. We also regard the insurance policy as an adhesion 
7

contract, resolving ambiguities in favor of the insured. See Dahms, 2018 ND 

263, ¶ 8.1 The policy at issue does not define “similar insurance.” Thus, we 

apply the ordinary meaning of “similar,” which means “having characteristics 

in common: strictly comparable” and “alike in substance or essentials.” 

Merriam-Webster’s Collegiate Dictionary 1161 (11th ed. 2005); see also

American Heritage Dictionary 1141 (2d Coll. ed. 1985) (defining “similar” as 

“[r]elated in appearance or nature; alike though not identical”). We conclude 

the language “similar insurance” in the Farm Family policy means the other 

insurance obtained by the insureds is similar “in type and in amount.”

[¶19] Farm Family asserts Ohio Casualty Insurance Company v. Gentile, 102 

F. App’x 737 (2d Cir. 2004), and Providence Washington Insurance Company v. 

Advance Auto Rental, Inc., 1994 WL 401325, *3 (Sup. Ct. Conn. Jul. 15, 1994),

are “directly on point” and demand a different result. However, neither Ohio 

Casualty nor Providence Washington addressed insurance provisions requiring 

“similar insurance.” The termination provision in Ohio Casualty terminated 

the policy if the insured purchased “any other insurance policy” with respect 

to the automobile. 102 F. App’x at 738 n.1. The policy in Providence Washington

similarly terminated the policy “on the effective date of any other insurance 

policy you purchase with respect to any automobile designated in both 

policies.” 1994 WL 401325, at *3 (emphasis added). Thus, neither case 

addressed policies terminating coverage based on the purchase of “similar 

insurance.” The phrase “similar insurance” is substantively different and 

significantly more restrictive than the phrase “any other insurance policy.”

[¶20] Farm Family cites one case involving an automatic termination 

provision based on “similar insurance.” Stith v. Milwaukee Guardian Ins., Inc., 

541 N.E.2d 1071, 1072 (Ohio Ct. App. 1988) (“If other insurance is obtained on 

1 We note courts in both Montana and Vermont apply similar rules to construe insurance policies. See 

Kilby Butte Colony, Inc. v. State Farm Mut. Auto. Ins. Co., 403 P.3d 664, 668 (Mont. 2017) (quoting 

Mecca v. Farmers Ins, Exch., 122 P.3d 1190, 1191 (Mont. 2005)) (“‘Courts give the terms and words 

used in an insurance contract their usual meaning and construe them using common sense. Any 

ambiguity in an insurance policy must be construed in favor of the insured and in favor of extending 

coverage.’”); Progressive N. Ins. Co. v. Muller, 249 A.3d 24, 27 (Vt. 2020) (“Disputed terms must be 

accorded ‘their plain, ordinary, and popular meaning.’ . . . [A]mbiguity is construed against the 

insurer.”).
8

your insured car, any similar insurance afforded under this policy for that car 

will cease on the effective date of the other insurance.” (emphasis added)). 

However, in that case the court did not interpret the “similar insurance” 

language. Rather, it addressed the interplay between the “automatic 

termination” clause and the “other insurance” clause in the policy, concluding 

“in situations where the ‘automatic termination’ clause does apply, the ‘other 

insurance’ clause is simply inoperative.” Id.

[¶21] The remaining issue is whether the Mountain West policy is “similar 

insurance” in type and in amount to the Farm Family policy. Under the 

undisputed facts of this case, this Court concludes, as a matter of law, the Farm 

Family policy and the Mountain West policy do not provide “similar insurance,”

i.e., insurance that is “strictly comparable” or “alike in substance or essentials.” 

An essential part of automobile liability insurance is the amount of coverage. 

A policy providing bodily injury liability coverage limits of $250,000 per person 

and $500,000 per accident and a policy providing bodily injury liability 

coverage limits of $100,000 per person and $300,000 per accident are not 

strictly comparable or substantively alike. We do not need to and do not decide 

today how much difference there must be in liability coverage for two policies 

to constitute similar insurance. We also do not need to and do not decide today 

how other differing aspects of insurance policies, such as deductibles and 

premiums, impact the consideration of whether two policies are similar. We 

simply hold, as a matter of law, that a policy providing bodily injury liability 

coverage limits of $250,000 per person and $500,000 per accident and a policy 

providing bodily injury liability coverage limits of $100,000 per person and 

$300,000 per accident are not similar insurance as used undefined in Farm 

Family’s policy.

[¶22] On the undisputed facts, the automobile policy Farm Family issued to 

its insureds had not “ceased” and was in effect at the time of the April 2019 

motor vehicle accident because the policy language required “similar 

insurance” for the policy to “cease on the effective date of the other insurance.” 

The other policy issued to the insureds by Mountain West had different policy 

limits and, therefore, was not “similar insurance” under the automatic 

termination clause at issue.
9

[¶23] In its order, the district court addressed choice-of-law, the Farm Family 

policy’s “out-of-state” insurance provision, and N.D.C.C. § 26.1-40-09. Because 

our decision is based on the plain language of the Farm Family policy’s 

“cancellation or nonrenewal” provision’s use of the phrase “similar insurance,”

we find it unnecessary to address the district court’s analysis regarding choiceof-law, the Farm Family policy’s “out-of-state” insurance provision, and 

N.D.C.C. § 26.1-40-09. Rather, we affirm the judgment because “[a] correct 

result will not be set aside merely because the district court relied on a 

different reason for its decision.” PHI Fin. Servs., Inc. v. Johnston Law Office, 

P.C., 2020 ND 22, ¶ 34, 937 N.W.2d 885 (quoting City of Gwinner v. Vincent, 

2017 ND 82, ¶ 12, 892 N.W.2d 598).

[¶24] Based on the plain language of the “cancellation or nonrenewal” 

provision, we conclude the Farm Family policy was still in effect at the time of 

the accident. The provision required the other insurance obtained be “similar 

insurance” afforded under the policy. We conclude as a matter of law “similar 

insurance” as used in the provision means similar “in type and in amount.” The 

two policies did not provide “similar insurance” in that the reduction of liability 

limits from $250,000/$500,000 (Farm Family policy) to $100,000/$300,000 

(Mountain West policy) is not “similar insurance” so as to effect cessation under 

the provision.

IV

[¶25] We have considered the parties’ remaining arguments and deem them 

either without merit or unnecessary to our decision. The judgment is affirmed.

[¶26] Jon J. Jensen, C.J.

Daniel J. Crothers

Lisa Fair McEvers

Douglas A. Bahr

Tufte, Justice, dissenting.

[¶27] I respectfully dissent.
10

[¶28] I agree with the majority that the dispositive issue here is the meaning 

of the term “similar insurance” in the Farm Family policy’s cancellation 

provision. The provision at issue reads: “If other insurance is obtained by you 

on your insured car, similar insurance afforded under this policy for that car 

will cease on the effective date of the other insurance.”

[¶29] The majority determines the plain meaning of “similar insurance” 

requires similarity in “type and amount.” In United Fire & Cas. Co. v. Victoria, 

which the majority found instructive, the Iowa Supreme Court speculated that 

“[i]t might well be the understanding of an insurance professional that these 

policies are similar. However, to an average policy buyer, a policy with 

substantially lower limits would not likely be viewed as ‘similar.’” 576 N.W.2d 

118, 120 (Iowa 1998). I agree to the extent that an “average policy buyer” would 

consider two policies to be less “similar” as a reduction in coverage limits 

becomes larger. For example, if the first policy provides coverage limits ten 

times higher than the second policy, the plain and ordinary meaning of “similar 

insurance” may compel the conclusion that the two policies are not similar, 

even if the other terms are identical. If the first policy provides coverage limits 

three times the limits in the second policy, the question is closer and one might 

want to know whether an average policy buyer would consider the second 

policy to be a reasonable substitute for the first. But this contrived example is 

too simple because it ignores the inescapable fact that differences in coverage 

are associated with differences in premiums. An average policy buyer would 

not pay the same premium for a policy providing one-third the coverage limits. 

In life, and in minimally functioning markets, there are always tradeoffs. 

Above the legal minimums required by state law, average policy buyers will be 

faced with tradeoffs in which higher coverage limits will require higher 

premiums, and higher deductibles will require lower premiums. To know 

whether two policies are “similar insurance” would require some assessment 

about whether an average policy buyer would view them as reasonable 

substitutes, or perhaps whether an insurance agent would quote them to a 

prospective buyer as plausible alternatives. See Emps. Mut. Cas. Co. v. Martin, 

671 A.2d 798, 801 (R.I. 1996).
11

[¶30] I believe the majority opinion and several of the authorities it relies on 

err by viewing “similar insurance” as a binary choice in which the second policy 

either is similar or is not similar. Most significantly, these decisions appear to 

stand for the proposition that a reduction in coverage limits between the first 

policy and the second policy renders the second policy not “similar insurance”

with respect to the first. Majority, at ¶ 24; Victoria, 576 N.W.2d at 120 

(rejecting argument that “insured can obtain lower limits of liability under a 

second policy and still have ‘similar’ coverage”); S.C. Farm Bureau Mut. Ins. 

Co. v. Courtney, 342 S.C. 271, 273, 536 S.E.2d 689, 690 (Ct. App. 2000) (policy 

limits reduced from 100/300 to 15/30), aff’d on other grounds, 349 S.C. 366, 563 

S.E.2d 648 (2002). These decisions strongly suggest that if the second policy 

had higher limits, it would be “similar insurance” and trigger the cancellation 

of the first policy. In my view, if the second policy is similar to the first, then 

the first has to be similar to the second. Stated another way, if a $300,000 limit 

policy is “similar insurance” with respect to a $100,000 limit policy, then that 

same $100,000 limit policy must also be “similar insurance” with respect to the 

$300,000 limit policy. Similarity must be a two-way street. Part of the problem 

here is that the plain meaning of “similar” signals a relative comparison where 

two things are more similar to each other than they are to other things. For 

example, one might say policy A is more similar to policy B than it is to policy 

C. Two policies covering the same risks and the same vehicles will be similar 

in some ways and different in others. This vague term does not permit us or a 

policy holder to reliably determine how alike two policies must be in limits, 

premiums, deductibles, or other factors to flip the switch and cancel an earlieracquired policy. A person obtaining insurance coverage naturally trades off the 

cost of premiums against the coverage type and amount and the deductible. 

Above the minimum coverage required by law, insurance agents quote and 

insurance buyers consider a range of coverage types and amounts.

[¶31] I would consider the plain meaning of “similar insurance” from the 

perspectives of both buyers and sellers of insurance policies. Although “similar” 

implies that the two insurance policies share some common characteristics, it 

does not provide a clear standard or level of similarity required for the clause 

to take effect, nor does it specify what characteristics are essential to the 

determination. In the market for insurance policies, buyers consider both cost 
12

and benefits when comparison shopping. To fairly consider the plain meaning 

of “similar insurance” to buyers and sellers in this market, we must consider 

at least coverage limits, deductibles, and monthly premiums. For years, we 

were reminded in advertisements that fifteen minutes could save you fifteen 

percent or more on auto insurance. It would seem that insurance policies are 

advertised more frequently on price than on coverage limits. But even if we 

consider the ordinary meaning of “similar insurance” to require consideration 

of all significant policy terms, the word “similar” is inherently vague in this 

and many other contexts. Auto Owners Ins. Co. v. Benjamin, 415 S.C. 137, 148, 

781 S.E.2d 137, 143 (Ct. App. 2015) (noting several jurisdictions had concluded 

the term “similar” in insurance contracts is “inherently vague,” “elastic,” 

“ambiguous,” “broad,” and “insufficiently precise”).

[¶32] This policy states: “If other insurance is obtained by you on your insured 

car, similar insurance afforded under this policy for that car will cease on the 

effective date of the other insurance.” It is undisputed that the Hamiltons 

obtained “other insurance” on their “insured car.” The threshold comparison 

required by this cancellation provision does not ask whether the second policy 

with lower limits is “similar insurance,” as the majority and many of the cited 

authorities read it. Rather, in terms of the policy, if “you” obtain “other 

insurance” on “your insured car,” the question is what, if any, “similar 

insurance” is provided by the first policy as compared to the second. If the first 

policy provides similar insurance, that coverage ceases on the effective date of 

the other insurance. Even applying the one-way street interpretation of 

“similar insurance,” the street runs the other way. The majority should be 

asking whether the higher-limit first Farm Family policy is similar to the 

Mountain West policy, and not whether the Mountain West policy is similar to 

the Farm Family policy.

[¶33] Rather than attempting to supply precision to the inherently vague term 

“similar” by deciding whether the reduced policy limit here is substantial 

enough to make the two policies not “similar,” I would apply the sensible rule 

adopted by the Tennessee Court of Appeals. Acknowledging that “similar 

insurance” may mean either “similar in kind” or “similar in kind and amount,” 

the court strictly construed the policy in favor of the insured and adopted the 
13

meaning that would preserve coverage. Franklin v. Kimberly, 1997 WL 379173, 

at *3 (Tenn. Ct. App. July 9, 1997), cited in Courtney, 342 S.C. at 276 n.3. In 

doing so, the court held “that the insurance coverage in the two policies is 

similar only to the extent of the amount of coverage in the second policy.” Id.

There, as here, the initial policy had a relevant limit of $250,000, and the 

second policy had a limit of $100,000. The result of the court’s decision was 

that the second policy terminated the coverage of the first policy only to the 

extent of the second policy’s limit.

[¶34] Jerod E. Tufte