#23711-a-JKM 2006 SD 49 IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA * * * * JOSEPH D. HOCKETT and PEGGY L. HOCKETT, Plaintiffs and Appellees,

v. GLENN D. LaPOINTE, Defendant, and AMCO INSURANCE COMPANY, Defendant and Appellant. * * * * APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT GREGORY COUNTY, SOUTH DAKOTA * * * * HONORABLE KATHLEEN F. TRANDAHL Judge * * * * STANLEY E. WHITING Attorney for plaintiffs Winner, South Dakota and appellees. ROBERT B. ANDERSON BRITTANY L. NOVOTNY of May, Adam, Gerdes & Thompson , LLP Attorneys for defendant Pierre, South Dakota and appellant. * * * * CONSIDERED ON BRIEFS ON JANUARY 9, 2006
OPINION FILED 

### 06/07/06-1- #23711 MEIERHENRY, Justice. [¶1.] Joseph and Peggy Hockett (Hocke tts) each suffered damages in excess of $100,000 due to an automobile accident with an uninsured motorist. Hocketts each received $100,000 of uninsured motorist (UM) benefits from the primary policy that covered the vehicle in which they were traveling. They then sought to recover uninsured motorist coverage from their insurer, AMCO Insurance Company (AMCO). The trial court determined Hocke tts could stack their UM benefits. The narrow issue presented on appeal is whethe r, absent a request for greater coverage, the language of SDCL 58-11-9 allows Hocketts to stack UM policies where doing so results in a recovery in excess of $100,000. We hold that the language of SDCL 58- 11-9 does not create a mandatory maximum amount of recovery when UM policies are stacked. FACTS [¶2.] This case arose out of an automo bile accident involving two vehicles. Neither the driver at fault, Glenn LaPoin te (LaPointe), nor the vehicle he drove were insured. The second vehicle was owned by Rebecca Hockett and insured by State Farm Mutual Automobile Insurance Co mpany (State Farm). At the time of the accident, Rebecca’s father, Joseph Ho ckett was driving the vehicle, and both Peggy Hockett, Joseph’s wife, and Rebecca were passengers. Joseph and Peggy are the plaintiffs in this action. [¶3.] Rebecca’s State Farm policy prov ided uninsured motorist coverage up to $100,000 per person or $300,000 per accident. As the primary insurer, State Farm paid both Joseph and Peggy Hock ett $100,000 each for the injuries they#23711

-2- sustained. The parties stipulated that each sustained injuries in excess of $100,000. Joseph and Peggy Hockett were also insured under a personal automobile policy provided by AMCO, wh ich provided UM coverage of $50,000 per person or $100,000 per accide nt. Hocketts filed a cl aim with AMCO for that amount, but AMCO denied coverage. [¶4.] Hocketts brought this suit ag ainst LaPointe and AMCO. Hocketts alleged that they each incurred damages in excess of $100,000. Therefore, they sought not only a judgment against LaPointe for damages, but also a declaration that the AMCO policy must be used to sati sfy that judgment in whole or in part. Asserting that Hocketts had no claim for coverage, AMCO moved for summary judgment. The parties submitted a statement of undisputed material facts which stipulated that Hocketts each recovere d $100,000 from State Farm and that they were requesting the additional $50,000 unins ured motorist coverage provided by the AMCO policy. The circuit court denied AMCO’s motion and ruled that Hocketts could recover from AMCO. The court dete rmined that Hocketts could stack the AMCO uninsured motorist coverage up to the amount of their actual injuries. AMCO appeals that decision and presents one issue for this Court’s determination. ISSUE Whether the trial court erred in its determination that the language of SDCL 58-11-9 does not prohibit Hocketts from recovering under their own insurance policy’s UM coverage when their damages exceeded the $100,000 UM recovered from other insurance.#23711

-3- STANDARD OF REVIEW [¶5.] As we have repeatedly recognized, summary judgment is appropriate when the moving party demonstrates that ther e is no genuine issue of material fact. SDCL 15-6-56(c); Thornton v. City of Rapid City, 2005 SD 15, ¶4, 692 NW2d 525, 528-29. In doing so, we must view all ev idence in a light most favorable to the nonmoving party. Id. (citation omitted). We must also determine whether the law was correctly applied. Phen v. Progressi ve N. Ins. Co., 2003 SD 133, ¶5, 672 NW2d 52, 54. The interpretation of both statutes and insurance contracts are questions of law subject to de novo review. MGA Ins. Co. v. Goodsell, 2005 SD 118, ¶9, 707 NW2d 483, 485. DECISION [¶6.] The backdrop of our stacking ju risprudence is sometimes a confusing patchwork of cases and statutes defining and redefining both UM benefits and underinsured motorist (UIM) benefits. Since the Legislature first mandated UM and UIM coverage in this state, the law has been changed and interpreted several times. See, e.g. , Phen , 2003 SD 133, 672 NW2d at 52; Nic kerson v. Am. States Ins., 2000 SD 121, 616 NW2d 468; Union Ins. Co. v. Stanage, 454 NW2d 736 (SD 1990); Cunningham v. W. Cas. & Sur. Co., 90 SD 530, 243 NW2d 172 (1976); Westphal v. Amco Ins. Co., 87 SD 404, 209 NW2d 555 (1973). For the most part, stacking is now controlled by statute. SDCL 58-11-9.7 proh ibits stacking an insured’s UM and UIM benefits “to determine the limit of insuranc e coverage available to an injured person for any one accident,” unless “two or more separate motor vehicle operators, one uninsured and the other underinsured, are determined to be liable.” Likewise,#23711

-4- SDCL 58-11-9.8 disallows stacki ng UM benefits from more than one of an insured’s vehicles, while SDCL 58-11-9.9 does the same for UIM benefits. 1 In addition, SDCL 58-11-9.5—the “difference of limits” statut e—prohibits “stacking of UIM coverage from two policies.” Nickerson , 2000 SD 121, ¶12, 616 NW2d at 471. [¶7.] In contrast, however, the current law does not specifically prohibit stacking UM coverage available under tw o different policies from two different insurers. We first addressed such a situation in Westphal , 87 SD at 404, 209 NW2d
at 555. Westphal held that a policy provision precluding the recovery of UM benefits where such benefits were reco verable from another vehicle was against public policy and therefore void. Id. at 410-11, 209 NW2d at 559. As a result, Westphal allowed a person injured by an uni nsured motorist while riding in another’s vehicle to recover both the UM coverage applicable to that vehicle and

1 . SDCL 58-11-9.8 provides: Regardless of the number of policies involved, vehicles involved, persons covered, claims made, vehicles or premiums shown on the insured’s policy, or premiums paid, in no event may the limit of liability for uninsured motorist coverage for two or more of the insured’s motor vehicles be added together to determine the limit of insurance coverage available to an injured person for any one accident. SDCL 58-11-9.9 provides: Regardless of the number of policies involved, vehicles involved, persons covered, claims made, vehicles or premiums shown on the insured’s policy, or premiums paid, in no event may the limit of liability for underinsured motorist coverage for two or more of the insured’s motor vehicles be added together to determine the limit of insurance coverage available to an injured person for any one accident.#23711

-5- also the UM coverage available under the injured person’s own automobile liability policy. Id. [¶8.] Although the UM statute, SD CL 58-11-9, has been amended since our decision in Westphal , none of the amendments changed our Westphal analysis and we have repeatedly affirmed its holding. See Phen , 2003 SD 133, ¶21, 672 NW2d at 58; Union , 454 NW2d at 739. Our most recent stacking case, Phen , follows Westphal and determines that a policy provis ion which precludes recovery of UM benefits is against public policy. See 2003 SD 133, ¶21, 672 NW2d at 58. [¶9.] While recognizing that our decisions in Westphal and Phen allow stacking in situations almost identical to the one presented in this case, AMCO contends that the language of the UM stat ute precludes stacking here. Therefore, we must consider the language of the current version of the statute and the evolution thereof. The UM coverage statut e was first enacted in 1966. The statute provided: No policy insuring against loss resulting from liability imposed by law for bodily injury or deat h suffered by any person arising out of the ownership, maintena nce or use of a motor vehicle shall be delivered or i ssued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is prov ided therein or supplemental thereto in limits for bodily injury or death set forth in §32-35-70 [$15,000/$30,000] for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, that the named insured shall have the right to re ject such coverage . . . . 1966 SD Laws ch 111, § 16(5). The firs t change occurred in 1972 when the Legislature removed the provision that allo wed an insured to reject UM coverage,#23711

-6- thus making coverage mandatory. 1972 SD Laws ch 261. The Legislature again amended the statute in 1975 and 1982. 19 75 SL ch 307; 1982 SL ch 356. The 1975 amendment allowed an insured to request UM coverage in excess of the amount provided by statute. 1975 SL ch 315, § 1. The 1982 amendment set the required amounts of UM coverage as follows: . . . the coverage required by this section may not exceed the limits of one hundred thousand dollars because of bodily injury to or death of one person in any one accident and, subject to the limit for one person, three hundre d thousand dollars because of bodily injury to or death of two or more persons in any one accident, unless additional coverage is requested by the insured. 1982 SL ch 356. The 1982 provisions remain in effect today. [¶10.] These legislative changes have resulted in the current version of SDCL 58-11-9 which, in its entirety, provides: No policy insuring against loss resulting from liability imposed by law for bodily injury or deat h suffered by any person arising out of the ownership, maintenanc e or use of a motor vehicle may be delivered or issued for deliver y in this state with respect to any motor vehicle registered or pr incipally garaged in this state, except for snowmobiles, unless coverage is provided therein or supplemental thereto in limits for bodily injury or death equal to the coverage provided by such policy for bodily injury and death, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness , or disease, including death, resulting therefrom. However, the coverage required by this section may not exceed the limits of one hundred thousand dollars because of bodily injury to or death of one person in any one accident and, subject to the limit for one person, three hundred thousand dollars because of bodily injury to or death of two or more persons in any one accident, unless additional coverage is requested by the insured. Any policy insuring government owned vehicles may not be required to provide uninsured motorist coverage.#23711

-7- SDCL 58-11-9. In essence, the UM statute requires all automobile liability insurance policies “delivered or issued for delivery” in South Dakota covering “any motor vehicle registered or principally garaged” in South Dakota to provide coverage for damages inflicted by uninsur ed and hit-and-run motorists. SDCL 58- 11-9. The required UM policy coverage must be “ in limits for bodily injury or death equal to the coverage provided by such policy for bodily injury and death.” SDCL 58-11-9. Additionally, the UM policy coverage “ may not exceed the limits of one hundred thousand dollars because of bodily injury to or death of one person in any one accident and, subject to the limit for one person, three hundred thousand dollars because of bodily injury to or de ath of two or more persons in any one accident , unless additional coverage is requested by the insured.” SDCL 58-11-9 (emphasis added). [¶11.] AMCO claims that the $100,000 /$300,000 amounts referenced in the statute serve as the mandatory maximum re covery when two or more UM policies are stacked. The plain meaning of the statutory language, however, does not suggest such an interpretation. The statut e defines coverage, not recovery. Clearly, the statute requires all vehicle liability po licies issued in this state to include coverage for damages incurred because of the negligence of uninsured drivers and vehicle owners. Additionally, the required UM coverage must be provided in the same amount as the liability coverage in the policy up to the maximum of $100,000 per person or $300,000 per accident, unles s the insured requests more. Other statutes require minimum liability coverage of $25,000 for one person per accident and $50,000 for two or more people per accident. SDCL 32-35-70; see also SDCL 32-#23711

-8- 35-113 (stating that failure to maintain the minimum automobile liability insurance is a Class 2 misdemeanor). Therefore, in the absence of a request for additional insurance, SDCL 58-11-9 requires that an insurer provide UM coverage between $25,000 and $100,000 for one person per accident and $50,000 and $300,000 for two or more people, depending on the amount of liability coverage in the policy. The plain meaning of the language should not be interpreted to mean that the Legislature intended to set a maximum amount of recovery regardless of the loss or the number of policies. [¶12.] AMCO points to language used by this Court in Union in support of its argument that SDCL 58-11-9 sets a statutory maximum amount of permissible UM

recovery. See Union , 454 NW2d at 739. The language to which AMCO refers is part of a paragraph in which this Court discussed the public policy applicable to stacking the UM benefits of two policies issued to the same insured by the same insurer. Id. The one sentence taken out of cont ext reads: “This modification of [SDCL 58-11-9 setting a maximum amount of required UM coverage] reflects a legislative determination that the maximum amount set forth in the statute is sufficient to protect those insureds who may be legally entitled to recover against an uninsured motorist.” Id. In the context of the enti re opinion, however, that sentence should not be read to mean that the Legislature set a mandatory maximum recovery amount merely by requiring all liability policies to include UM coverage. In fact, a close reading of Union reveals that this language was not#23711

-9- central to the holding. 2 What was central to the holding was the language of the insurance policy provision, which we dete rmined controlled the outcome. 454 NW2d

2

. Union Insurance Co. v. Stanage came before this Court subsequent to the 1982 amendment setting coverage amounts. 454 NW2d at 736. The facts at issue in Union arose one month before the relevant anti-stacking statute, SDCL 58-11-9.8, discussed infra at ¶20, took effect. Union , 454 NW2d at 738. The issue in Union was whether the insured could stack UM coverage in two policies of insurance issued to the insured by the same insurer. Id. at 737. Both of Union’s policies cont ained clauses limiting its maximum liability to $100,000 per person per accide nt in clear, unamb iguous terms. Id. at 738. We said: In resolving the issue of whether [an insured] should be allowed to stack [UM] coverages . . . th e determinative factor must be the apparent policy of our state legislature. By enacting SDCL 58-11-9, our legislature clearly sought to provide protection to certain insureds who may be legally entitled to recover against uninsured motorists. Subsequent to our decision in Westphal , the legislature amended this statute by providing a maximum amount of uninsured motorist coverage that an insurer could provide to an insured absent a request for additional coverage by the insured. This modification of the statute reflects a legislative determination that the maximum amount set forth in the statute is sufficient to protect those insureds who may be legally entitled to recover against an uninsured motorist. Id. at 739 (citations omitted). Despit e our explanation of the meaning of SDCL 58-11-9, we relied solely on the language of the insurance policy in determining that stacking was not allowed. Id. at 739. We stated: [The insurer limited] its liability in clear and unambiguous terms. In both policies, [the insurer] specifically stated: The limit of liability shown in the Declarations for “each person” for Uninsured Motorist Coverage is our maximum limit of liability for all damages for bodily injury sustained by any one person in any one accident. (Emphasis added). The limit of liability for uninsured motorist coverage is the same on each declaration sheet, that is, $100,000 per person. Thus, the clear import of the “limit of liability” clause in each policy is that [the insurer] will not provide (continued . . .)#23711

-10- _____________________ (. . . continued) at 739-40. Therefore, to the extent that la nguage in our prior opinions may be read to suggest that SDCL 58-11-9 establishes a public policy which precludes recovery in excess of the mandated amount of cove rage, the prior language should not be interpreted as such and is not controlling. [¶13.] Westphal remains the controlling case regarding the type of stacking at issue here. Phen , 2003 SD 133, ¶¶28, 37-38, 672 NW 2d at 59, 61 (Zinter, J., concurring). There we held that stacking of UM benefits for two different vehicles insured by two different policie s was not precluded by statute. Id. ¶¶20-22, 672 NW2d at 58-59. Unless the parties have clearly and unambiguously limited such stacking by contract, it is not precluded. [¶14.] In the evolution of our stacking jurisprudence, the language of the individual policies was an important factor. In this case, however, AMCO does not rely upon its policy provisions. AMCO clea rly points out in its brief that it is not

uninsured motorist benefits in an amount exceeding $100,000 per person for damages sustained in any one accident involving an uninsured motorist, irrespective of the vehicles covered or policies issued to [the insured] by [the insurer]. The clear meaning of this limiting language should be given effect considering the fact that [the insured] satisfied the apparent policy of the legislature by providing Stanage with the maximum amount of uninsured motorist coverage as set forth by the statute. Id. at 739-40 (footnote omitted). Thus, we reasoned that because the insurer provided the amount of UM coverage dictated by SDCL 58-11-9, it satisfied the purpose of that statute and was “free to limit its total liability to that maximum amount in a subsequent polic y issued to the same insured.” Id. at 739.#23711

-11- attempting to avoid liability based on po licy language in either the “other insurance” or UM coverage portions of the policy. In fact, the summary judgment motion makes no mention of the contract between the insured and insurer. AMCO relies strictly on the language of SDCL 58- 11-9 and urges this Court to hold that the statutory language, in and of itself, limits stacking of UM coverage to the statutory amount of $100,000/$300,000. We decline to do so. We have clearly stated that the statutory amounts are only limiting if the insurer has stated the limits “ in clear and unambiguous terms. ” Union , 454 NW2d at 738 (emphasis added). Whether or not AMCO’s policy with Hocketts contains clear and unambiguous terms of limitation is not before this Court, nor was it argued to the trial court as part of the summary judgment motion. We agree with the trial court that Westphal and Phen allow the stacking here, and we hold that the limit s for UM coverage established in SDCL 58- 11-9 do not per se prohibit stacking UM coverage in excess of the statutory amount. [¶15.] Affirmed. [¶16.] GILBERTSON, Chief Justice, and SABERS and KONENKAMP, Justices, concur. [¶17.] ZINTER, Justice, concurs specially.

ZINTER, Justice (con curring specially). [¶18.] I fully concur in the Court’s opin ion. I write only to emphasize that this Court’s opinions in Westphal , 87 SD 404, 209 NW2d 555; Union , 454 NW2d 736; and Phen , 2003 SD 133, ¶¶28-41, 672 NW2d 52, 59-62 (Zinter, J., concurring in result), only considered whether certain UM policy limitations were prohibited#23711

-12- by SDCL 58-11-9, the statute mandating UM coverage. Ho wever, policy limitations are concededly not at issue in this case. Therefore, the language of my concurring opinion in Phen should not be used to suggest that SDCL 58-11-9 precludes stacking when an insurer does no t rely upon a policy limitation.