Botting v. Allstate Ins. Co.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 58
Docket:	Cum-97-199
Argued:	November 13, 1997
Decided:	March 25, 1998

Panel:ROBERTS, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.

KENNETH BOTTING et al.

v.

ALLSTATE INSURANCE CO.

ROBERTS, J.

	[¶1]  Allstate Insurance Co. appeals from the judgment entered in the
Superior Court (Cumberland County, Saufley, J.) awarding the plaintiffs (the
Bottings) $205,000 on Allstate's underinsured motorist coverage.  In this
case of first impression, Allstate contends that the court erred when it
determined that the tortfeasor was underinsured.  The Bottings cross-
appeal, arguing that the court erred by denying them prejudgment interest. 
We affirm the judgment in part and vacate in part.  
	[¶2]  In August 1994 the Bottings' car was struck by a car owned and
insured by Ronald and Barbara Hill.  The Hills' minor son (the tortfeasor)
was driving their car.  All three occupants of the Bottings' car-Kenneth; his
wife, Valinda; and their daughter, Katlin-were injured.  At the time of the
accident, the Bottings were insured by an Allstate automobile insurance
policy that provided "split limit" uninsured bodily insurance coverage in the
amount of $100,000 per person and $300,000 per accident.  The per
accident limit is the "total limit for all damages arising out of bodily injury to
two or more persons in any one motor vehicle accident."  The coverage is
also subject to a limit of $100,000 per person.  The tortfeasor was insured
for liability by Peerless Insurance Company with a single $100,000 limit for
bodily injury and property damage.  
	[¶3]  The Bottings settled with Peerless for the full amount of the
$100,000 coverage:  $35,000 to Kenneth Botting, $20,000 to Valinda
Botting, $40,000 to Katlin Botting, and $5,000 for damage to the car
presumably paid to Kenneth Botting.  The Bottings then sought recovery in
the Superior Court of underinsured motorist benefits pursuant to the
automobile policy with Allstate.  Allstate filed a motion for a summary
judgment, arguing that the tortfeasor was not underinsured.  Finding that
the tortfeasor was underinsured, the court denied Allstate's motion and
ordered it to pay $65,000 to Kenneth Botting, $80,000 to Valinda Botting,
and $60,000 to Katlin Botting.  The court denied prejudgment interest. 
This appeal and cross-appeal followed.  
	[¶4]  Maine's underinsured motorist statute requires coverage in
every motor vehicle liability policy to protect persons insured pursuant to
the policy from personal injury caused by an uninsured, underinsured, or
hit-and-run motor vehicle operator.  24-A M.R.S.A. § 2902(1) (1990).  The
statute defines underinsured motor vehicle as follows:
 
For the purposes of this section, "underinsured motor
vehicle" means a vehicle for which coverage is provided, but
in amounts less than the minimum limits for bodily injury
liability insurance provided for under the motorist's financial
responsibility laws of this State or less than the limits of the
injured party's uninsured vehicle coverage.  

Id.  Because the Bottings purchased a split limit policy, and all three of them
were injured, they contend that the Allstate per accident limit of $300,000
should be compared to the tortfeasor's single limit of $100,000.  Based on
that comparison, they argue, the tortfeasor was underinsured.  Allstate in
turn contends that the correct analysis is to compare the Bottings' single
person limit of $100,000 with the tortfeasor's limit of $100,000.  By that
comparison, Allstate argues, the tortfeasor was not underinsured regardless
of the number of persons injured, citing Mullen v. Liberty Mut. Ins. Co., 589
A.2d 1275 (Me. 1991), and McGillivray v. Royal Ins. Co., 675 A.2d 524 (Me.
1996).  
	[¶5]  Contrary to Allstate's contention, this case is not controlled by
our decisions in Mullen or McGillivray.  In Mullen we were asked to
determine a tortfeasor's status as "underinsured" by comparing the
underinsured motorist coverage available to her with her actual recovery
from the tortfeasor rather than the liability coverage provided under the
tortfeasor's policy.  We declined to do so, concluding that the statute
required comparison of coverage with coverage to determine the
underinsured status of the tortfeasor.  Similarly, in McGillivray we were
asked to stack the underinsured motorist coverage on two separate vehicles
in which persons were injured and compare that total with the liability
coverage on a third vehicle whose operator negligently caused the injuries. 
We concluded that the coverage of the individual vehicles must be compared
with that of the tortfeasor to determine whether his vehicle was
underinsured.  
	[¶6]  As the Bottings correctly argue, the issue before us is one of first
impression in Maine.  The resolution of that issue can be found in the
legislative history of section 2902(1).  In 1967 the Legislature originally
enacted a statute requiring uninsured motorist coverage.  P.L. 1967, ch. 93,
§ 1 (effective Jan. 1, 1968).  The statute did not require coverage in the
case of a tortfeasor with some, but not enough insurance coverage.  As we
stated in Connolly v. Royal Globe Ins. Co., 455 A.2d 932, 935 (Me. 1983): 
 
	To prevent an injured party who had purchased
uninsured motorist coverage from losing that protection in
the event that the tortfeasor had some insurance but not
enough to compensate adequately the injured person, the
Legislature amended the statute to include underinsured
motorist coverage.  See P.L. 1975, ch. 437, § 1.  The statute
now permits recovery if the tortfeasor has coverage in
amounts less than the minimum limits required by law or less
than the limits of the injured party's uninsured vehicle
coverage.  ...  Under this amendment, the Legislature
intended to permit the insured injured person the same
recovery which would have been available to him had the
tortfeasor been insured to the same extent as the injured
party.  

The split-limit coverage purchased by the Bottings provides for two levels of
coverage; which applies is dictated by the number of parties injured.  Here
all three Bottings were injured and, had the injuries been caused by an
uninsured motorist, they would have been entitled to recover from Allstate
up to $100,000 per person.  Thus, for the purpose of resolving the issue in
this case, the Allstate "per accident" limit should be compared to the
tortfeasor's policy.  To do otherwise would deprive the Bottings of
underinsured motorist coverage and would be contrary to the purpose of the
legislative amendment.  Id.  
	[¶7]  Although the court correctly decided the major issue, we must
vacate the judgment for two reasons.  First, the court erroneously
determined that the $5,000 paid for property damage to the Botting vehicle
reduced the $100,000 limit of liability coverage for personal injury.  We
conclude this violates the principles in Mullen that actual recovery is not
significant.  Hill had $100,000 coverage available for personal injury. 
Allstate's exposure therefore is controlled by a $200,000 limit per accident. 
The Bottings cannot increase that limit by allocating $5,000 of the
settlement to property damage.  Accordingly, the award to Kenneth Botting
should be reduced by $5,000.  Second, on the Botting's cross-appeal,
Allstate concedes that its objection to prejudgment interest was incorrect. 
On remand, the court should award prejudgment interest to the Bottings.  
	The entry is:
				Judgment vacated.  Remanded with
				instruction to reduce the judgment
				in favor of Kenneth Botting to $60,000,
				and to award prejudgment interest to
				each plaintiff. 
                                                                                               
Attorneys for plainitffs:

Robert H. Furbish, Esq., (orally)
Terence D. Garmey, Esq.
Smith Elliott Smith & Garmey, P.A.
100 Commercial Street, Suite 304-308
Portland, ME 04101

Attorney for defendant:

James D. Poliquin, Esq., (orally)
Norman, Hanson & DeTroy
P O Box 4600
Portland, ME 04112-4600