Superior Court County: King. Superior Court Cause No: 94-2-26825-2. Date filed in Superior Court: 1/11/95. Superior Court Judge Signing: Liem Tuai.
Written by: Coleman, J., Concurred by: Grosse, J., Ellington, J.
COLEMAN, J. -- Laurie Greengo argues that she is entitled to recover above the maximum of the higher limit of two applicable underinsured motorist (UIM) policies because her injury was caused by two underinsured drivers even though her insurance contract contains an anti-stacking provision. She further argues that she is entitled to reimbursement for litigation costs and reasonable attorney fees expended in securing her coverage. We affirm the summary judgment award for Public Employees Mutual Insurance Company (PEMCO).
Laurie Greengo was a passenger in a Nissan Sentra that was in an accident with a Chevrolet Citation and a Chevrolet Caprice. David Ferulli was driving the Sentra, which was owned by Carrie Carfrae. The Citation, driven by Michael Hampshire, rear-ended the Sentra. The Sentra rear-ended the Caprice. Greengo sustained significant economic loss and serious bodily injuries, including permanent quadriplegia.
From various policies covering Hampshire, Ferulli, and Carfrae, Greengo received $300,000 in liability insurance payments. The liability payments did not, however, fully compensate Greengo for her injuries. Greengo had UIM coverage under two separate policies: A Unigard policy with a $100,000 limit covered Carfrae's vehicle, and Greengo had a PEMCO policy with a $100,000 UIM limit. After some dispute, Greengo recovered $100,000 from Unigard under Carfrae's UIM coverage. Greengo then tried to recover under her PEMCO policy. PEMCO denied coverage, arguing that an anti-stacking provision in their contract did not permit recovery of UIM benefits when the insured had already recovered the highest policy limit under all applicable UIM policies.
The PEMCO policy provides in part:
The amount shown on the "Declaration" for "each person" under this coverage is the most we'll pay in damages for bodily injury to any one person for any one accident.
These limits are the most we'll pay for any one accident regardless of the number of covered persons, claims made, or vehicles or premiums shown on the policy, or premiums paid, or vehicles involved in an accident.
In a provision entitled "Other Insurance," a provision states in part:
If this policy and any other policy providing underinsured motorist coverage apply to the same loss, the maximum limit of liability under all policies will be the highest limit of liability that applies under any one policy. If other underinsured motorist coverage applies, we'll pay only our fair share of the loss. That share is our proportion of the total underinsured motorist insurance that applies to the loss. But any insurance we provide when you or a covered person use a vehicle you don't own will be excess over any other collectible insurance.
The key inquiry is whether Greengo can recover under two separate UIM policies beyond the higher policy's limit because her injury was caused by two underinsured drivers. When reviewing an order of summary judgment, an appellate court must engage in the same inquiry as the trial court. Marincovich v. Tarabochia, 114 Wash. 2d 271, 274, 787 P.2d 562 (1990) (citing Highline Sch. Dist. 401 v. Port of Seattle, 87 Wash. 2d 6, 15, 548 P.2d 1085 (1976)). Because the material facts are undisputed, the question is whether PEMCO was entitled to judgment as a matter of law. See Marincovich, 114 Wash. 2d at 274.
PEMCO claims that Greengo is prohibited from recovering the $100,000 UIM coverage under her policy because she has already recovered $100,000 in UIM benefits under the ...