Jack v. Tracy
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 13
Docket:	Aro-98-390	
Argued:	January 7, 1999	
Decided:	January 20, 1999

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.

LYNN JACK

v.

SCOTT TRACY et al.

DANA, J.

	[¶1]  The Superior Court (Aroostook County, Pierson, J) reported this
case to the Law Court pursuant to M.R. Civ. P. 72(c) after entering a
judgment in favor of Allstate Insurance Co. on Lynn Jack's partial motion for
a summary judgment.  Jack contends that pursuant to the terms of Allstate's
automobile liability insurance policy the insured is entitled to recover
uninsured motorist benefits for the death of the insured's uninsured
daughter.  We agree and vacate the judgment.
	[¶2]  In July 1996, Jessica Jack died while a passenger in a car
operated by Scott Tracy, an uninsured motorist.  Jessica was fifteen years
old, unmarried, and had no children.  Jessica's mother, Lynn Jack, was
insured by an automobile liability insurance policy issued by State Farm
Insurance Co., under which Jessica was insured.  This policy included an
uninsured motorist provision.
	[¶3]  Jessica's father, Jeremiah Leary, was married to and living with
Rita Rogers.  Rogers' Allstate automobile liability insurance policy provided
for uninsured motorist coverage of $100,000 per person and $300,000 per
accident.
	[¶4]  According to the Allstate uninsured motorist policy,

[Allstate] will pay damages for bodily injury, sickness, disease or
death which an insured person is legally entitled to recover from
the owner or operator of an uninsured auto.  Injury must be
caused by accident and arise out of the ownership, maintenance
or use of an uninsured auto.

Pursuant to the policy, one of the three classes of "Insured Persons" is, "You
and any resident relative."  "You" is defined as, "the policyholder named on
the declarations page and that policyholder's resident spouse."  "Resident"
is defined as "the physical presence in your household with the intention to
continue living there."
	[¶5]  Lynn Jack, as personal representative of the estate of Jessica
Jack, sued Tracy, Allstate and State Farm.  The complaint alleged that Tracy
was liable for Jessica's wrongful death and conscious suffering, and that
Allstate and State Farm were jointly and severally liable to the estate for the
limits of the uninsured motorist policies issued to Lynn Jack and Rogers.
	[¶6]  Jack moved for a partial summary judgment against Allstate,
contending that Leary is entitled to recover uninsured motorist benefits
pursuant to the Allstate policy for the death of Jessica, whether or not
Jessica is an "insured person" as governed by the policy.  The court denied
the motion and, at the request of Jack, reported the issue to the Law Court
pursuant to M.R. Civ. P. 72(c).
	[¶7]  A summary judgment is proper when "the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any . . . show that there is no genuine issue as to any
material fact set forth in those statements and that any party is entitled to a
judgment as a matter of law."  M.R. Civ. P. 56(c).  We review a summary
judgment ruling for errors of law and view the evidence in the light most
favorable to the non-moving party.  Greenvall v. Maine Mutual Fire Ins. Co.,
1998 ME 204, ¶ 5, 715 A.2d 949, 951.

UNINSURED MOTORIST POLICY	

	[¶8]  The meaning of language in an insurance policy is a question of
law.  York Ins. Group of Maine v. Van Hall, 1997 ME 230, ¶ 8, 704 A.2d 366,
369.  In reviewing the language of an insurance contract, "[t]he function of
the court is not to make a new contract for the parties by enlarging or
diminishing its terms, but is to ascertain the meaning and intention of the
contract actually made."  Apgar v. Commercial Union Ins. Co., 683 A.2d 497,
500 (Me. 1996) (citations omitted).  We construe standard insurance
policies "most strongly" against the insurer,  Gross v. Green Mountain Ins.
Co., 506 A.2d 1139, 1141 (Me. 1986), and "interpret unambiguous language
. . . according to its plain and commonly accepted meaning,"  Brackett v.
Middlesex Ins. Co., 486 A.2d 1188, 1190 (Me. 1985).
	[¶9]  According to the plain language of the Allstate policy, to qualify
for uninsured motorist benefits, one must be (1) "an insured person" who is
(2) "legally entitled to recover from the owner or operator of an uninsured
auto."  Leary qualifies as "an insured person" pursuant to the Allstate policy,
because he is the spouse and cohabitant of the policy holder.  On appeal,
Allstate does not contest this conclusion.
	[¶10]  Leary is also "legally entitled to recover from the . . . operator of
an uninsured auto:"  pursuant to the Maine wrongful death statute, Leary can
recover from Tracy for the wrongful death of his daughter.  See 18-A
M.R.S.A. § 2-804(b) (1998).{1} The wrongful death statute states that,
although the action "must be brought by . . . the personal representative of
the deceased person, . . . the amount recovered in every such action . . . is
for the exclusive benefit of . . . the deceased's heirs . . . if there is neither
surviving spouse nor minor children."  Id. (emphasis added).  The statute
"grants no rights to the deceased."  Shaw v. Jendzejec, 1998 ME 208, ¶ 6,
717 A.2d 367, 369.  Rather, it "provides a cause of action only to the living
relatives or heirs of the deceased."  Id.{2}
	[¶11]  Because Jessica had neither a spouse nor children, Leary, as an
heir, has a cause of action against Tracy for the wrongful death of Jessica,
see id., and is a statutory beneficiary of any amount recovered by the
personal representative, see 18-A M.R.S.A. § 2-804(b).  Consequently, Leary
"is legally entitled to recover from the . . . operator of an uninsured auto."
	[¶12]  Given that Leary is an insured person who is legally entitled to
recover from an uninsured motorist, we conclude that pursuant to the plain
language of the Allstate policy Leary is entitled to uninsured motorist
benefits for the death of Jessica caused by Tracy.  See Auto Club Ins. Ass'n v.
DeLaGarza, 444 N.W.2d 803, 805-07 (Mich. 1989) (construing a similar
policy and concluding that the insured was entitled to uninsured motorist
benefits for the death of an uninsured relative for which the insured was
legally entitled to recover from the uninsured motorist pursuant to the
wrongful death statute).  But see Allstate Ins. Co. v. Hammonds, 865 P.2d
560, 562 (Wash. Ct. App. 1994) (concluding that a similar policy did not
provide coverage).  Therefore, the court erred as a matter of law when it
denied Jack's motion for a partial summary judgment against Allstate on the
issue of policy coverage.
	The entry is:
Judgment vacated and remanded for
further proceedings consistent with this
opinion.
Attorney for plaintiff:

Arthur J. Greif, Esq., (orally)
Gilbert Law Offices, P.A.
P O Box 2339
Bangor, ME 04402

Attorneys for Defendants:

Thomas J. Pelletier, Esq., (orally)
Solman & Hunter, P.A.
P O Box 665
Caribou, ME 04736
(for Allstate Ins. Co.)

John D. McElwee, esq.
145 Sweden Street
Caribou, ME 04736
(for State Farm Ins. Co.)

Allan Hanson, Esq.
135 High Street
Caribou, ME 04736
(for Scott Tracy)

FOOTNOTES******************************** {1} . Title 18-A M.R.S.A. § 2-804 provides in part: (a) Whenever the death of a person shall be caused by a wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then the person . . . that would have been liable if the death had not ensued shall be liable for damages as provided in this section . . . . (b) Every such action must be brought by and in the name of the personal representative of the deceased person, and the amount recovered in every such action, except as otherwise provided, is for the exclusive benefit of the surviving spouse if no minor children, and of the children if no surviving spouse, and one- half for the exclusive benefit of the surviving spouse and one-half for the exclusive benefit of the minor children to be divided equally among them if there are both surviving spouse and minor children, and to the deceased's heirs to be distributed as provided in section 2-106 if there is neither surviving spouse nor minor children. . . . {2} . At oral argument, Allstate conceded that Leary was entitled to recover for the wrongful death of Jessica.