                                                                     FILED BY CLERK
                                                                        SEP -3 2010
                            IN THE COURT OF APPEALS                      COURT OF APPEALS
                                STATE OF ARIZONA                           DIVISION TWO
                                  DIVISION TWO


DAVID HAMILL,                                )     2 CA-CV 2010-0044
                                             )     DEPARTMENT A
                      Plaintiff/Appellant,   )
                                             )     OPINION
                  v.                         )
                                             )
MID-CENTURY INSURANCE                        )
COMPANY,                                     )
                                             )
                  Defendant/Appellee.        )
                                             )


          APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                 Cause No. C20081311

                          Honorable Carmine Cornelio, Judge

                                       AFFIRMED

Risner & Graham
 By Kenneth K. Graham                                                            Tucson
                                                       Attorneys for Plaintiff/Appellant

Udall Law Firm, LLP
 By D. Burr Udall                                                            Tucson
                                                    Attorneys for Defendant/Appellee


H O W A R D, Chief Judge.
¶1           Appellant David Hamill appeals from the trial court‟s summary judgment

in favor of appellee Mid-Century Insurance Company (hereinafter Mid-Century). He

claims the court erred in determining he was not entitled to recover under the

underinsured motorist provision (UIM) of his automobile liability policy with Mid-

Century. Because the court correctly determined that Hamill‟s UIM provision does not

afford coverage, we affirm.

                         Factual and Procedural Background

¶2           We view the facts in the light most favorable to the party against whom

summary judgment was entered. Orme Sch. v. Reeves, 166 Ariz. 301, 309-10, 802 P.2d

1000, 1008-09 (1990). The parties have stipulated to the relevant facts here. A vehicle

driven by Susan Smith struck Hamill as he walked in a shopping center parking lot.

Hamill sued Smith for the injuries he sustained in the accident. Smith was insured by

State Farm Insurance Company against liability for bodily injury for $100,000 for a

single person injury. But after the accident and before the personal injury trial, State

Farm told Smith it would “pay the amount of any judgment or settlement” rendered

against Smith in Hamill‟s lawsuit.    A jury eventually awarded Hamill $165,000 in

damages. Mid-Century was unaware of the action against Smith until after the jury

verdict.

¶3           Hamill submitted a UIM claim to Mid-Century to recover the amount by

which his judgment exceeded the $100,000 liability limits of Smith‟s State Farm policy.

In the meantime, Smith appealed the jury‟s damage award and eventually settled with


                                           2
Hamill for $152,000—which State Farm later paid. Hamill and Mid-Century then agreed

to arbitrate liability and damages under Hamill‟s UIM policy. They further agreed that

they would offset any arbitration award by $134,259.59 and that Hamill retained his right

to file a declaratory judgment action seeking to have Mid-Century bound by the jury

verdict. The arbitrator determined that Hamill had sustained $140,000 in damages and

that he had been ten percent at fault, effectively reducing the damages owed to $126,000.

¶4           Because the arbitrator found Hamill‟s damages to be less than the amount

Smith‟s insurance company had paid Hamill, and less than the $134,259.59 Hamill and

Mid-Century had stipulated would be the offset amount, Mid-Century determined Smith

had not been underinsured and refused to pay Hamill under the UIM provision of his

policy.   Hamill sued Mid-Century for breach of contract.        The trial court granted

summary judgment in favor of Mid-Century. Hamill appeals from this judgment.

                                       Discussion

¶5           A trial court properly grants summary judgment if there are no genuine

issues of material fact and the moving party is entitled to judgment as a matter of law.

Ariz. R. Civ. P. 56(c)(1); Orme Sch., 166 Ariz. at 309, 802 P.2d at 1008. “On appeal

from a summary judgment, we must determine de novo whether there are any genuine

issues of material fact and whether the trial court erred in applying the law.” Bothell v.

Two Point Acres, Inc., 192 Ariz. 313, ¶ 8, 965 P.2d 47, 50 (App. 1998) (italics removed).

Here, the parties have stipulated to a majority of the facts, and they agree that the




                                            3
threshold legal issue—whether Smith actually was underinsured—is a question of first

impression.

¶6            Hamill first asserts the trial court erred by granting summary judgment in

favor of Mid-Century because Smith‟s bodily injury insurance limits were only $100,000

at the time of the accident, while the jury verdict in the personal injury action against her

was for $165,000. Relying on the phrase “applicable at the time of the accident” in

A.R.S. § 20-259.01(G), he claims Smith therefore was underinsured at the time of the

accident. And at oral argument, Hamill‟s counsel stated that he was seeking $30,740.41,

the difference between the $134,259.59 agreed-upon offset amount and the $165,000 jury

award.

¶7            Section 20-259.01(B) requires insurers providing automobile liability

insurance to offer coverage for underinsured motorists.               The statute defines

“[u]nderinsured motorist coverage” as “coverage for a person [when] the sum of the

limits of liability under all bodily injury or death liability bonds and liability insurance

policies applicable at the time of the accident is less than the total damages.” A.R.S.

§ 20-259.01(G). The policy behind the statute is that injured parties are entitled to full

compensation for their injuries, despite the fact that many drivers are not insured

adequately. State Farm Mut. Ins. Co. v. Arrington, 192 Ariz. 255, ¶ 20, 963 P.2d 334,

338-39 (App. 1998); see also Brown v. State Farm Mut. Auto. Ins. Co., 163 Ariz. 323,

327, 788 P.2d 56, 60 (1989). The UIM insurer steps into the shoes of the underinsured

driver to provide that recovery.     Arrington, 192 Ariz. 255, ¶ 17, 963 P.2d at 338.


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However, injured parties are not permitted to utilize UIM policies to recover more than

their actual, legal damages. Id. ¶ 20.

¶8            When the legislature‟s intent in enacting a statute is not stated clearly, we

interpret the statute in a manner that will carry out the legislature‟s goals in enacting it.

Ariz. Life & Disability Ins. Guar. Fund v. Honeywell, Inc., 190 Ariz. 84, 87, 945 P.2d

805, 808 (1997). Underlying the UIM statute is a policy of full but single recovery. See

Arrington, 192 Ariz. 255, ¶ 20, 963 P.2d at 338-39.          In that context, the statutory

language “applicable at the time of the accident” dictates that we focus our inquiry on the

applicable insurance policy rather than setting a single, fixed point in time in determining

policy limits. Before both the jury verdict and Hamill‟s UIM demand to Mid-Century,

State Farm had stated it would pay the total judgment or settlement amount against

Smith, whatever it might be, thereby effectively eliminating the $100,000 limit of her

insurance policy. Because the limit of liability under Smith‟s policy was not less than the

total damages, Smith was not underinsured. See A.R.S. § 20-259.01(G).

¶9            Hamill argues, however, that State Farm‟s removal of the liability limit

does not change his right to recover underinsured motorist benefits under his policy,

claiming the policy could provide broader coverage than the statute requires. He focuses

on the policy language defining an underinsured vehicle as one that is “insured . . . for

bodily injury liability at the time of the accident; and . . . its limit for bodily injury

liability is less than the amount of the insured person‟s damages.” He claims, therefore,

that for purposes of the UIM provision of his policy, whether he is entitled to coverage


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depends on the limits of Smith‟s policy at the time of the accident and that State Farm‟s

offer to pay the full award is not relevant.

¶10           We must read the Mid-Century policy as a whole, in order to give a

“„reasonable and harmonious meaning and effect to all its provisions.‟” Tritschler v.

Allstate Ins. Co., 213 Ariz. 505, ¶ 12, 144 P.3d 519, 525 (App. 2006), quoting Sparks v.

Republic Nat’l Life Ins. Co., 132 Ariz. 529, 536, 647 P.2d 1127, 1134 (1982). If one of

the policy‟s provisions is subject to different interpretations, we examine the language,

the purpose of the transaction, and public policy considerations. Id.

¶11           In addition to the language we quoted above, and on which Hamill relies,

the UIM provision of his policy states that Mid-Century “will pay all sums which an

insured person is legally entitled to recover as damages from the owner or operator of an

UNDERinsured motor vehicle because of bodily injury sustained by the insured person.”

The policy provides that the UIM coverage is limited by the specified policy limits and

“[t]he amount of damages established but not recovered by any agreement, settlement, or

judgment with or for the person or organization legally liable for the bodily injury.” And,

the policy states, Mid-Century “will pay under this coverage only after the limits of

liability under any applicable bodily injury liability bonds or policies have been

exhausted by payment of judgments or settlements.”

¶12           Reading the Mid-Century policy as a whole, its meaning is clear. Like the

statute, the language on which Hamill relies focuses on the applicable policies; it does not

define a specific time for determining coverage limits. And the liability limits of Smith‟s


                                               6
policy were never exhausted. At the time of Hamill‟s UIM demand, Smith was fully

insured, rendering the Mid-Century policy‟s UIM coverage inapplicable. Further, Hamill

admitted at oral argument that there was nothing in the record suggesting that the lower

settlement amount was related to Smith‟s original policy limit. Consequently, Hamill‟s

assertion that he is entitled to any amount in excess of State Farm‟s bodily injury

$100,000 policy limit fails.

¶13            Relying on Cundiff v. State Farm Mutual Automobile Insurance Co., 217

Ariz. 358, 174 P.3d 270 (2008), which he contends allows “double recovery,” Hamill

argues he nonetheless is entitled to recover the difference between the offset amount and

the jury verdict under the UIM provision of his policy.         But the court in Cundiff

determined that workers‟ compensation benefits are not considered “liability insurance”

that can be offset under the UIM statute. See id. ¶¶ 10-11. Here, Smith‟s insurance was

liability insurance, which can be offset to determine whether Smith was underinsured

under the statute. Therefore, Cundiff is inapposite to our analysis, and double recovery is

still prohibited.

¶14            Hamill further contends that Mencel v. Farmers Insurance Company of

Washington, 937 P.2d 627 (Wash. Ct. App. 1997), should dictate the outcome of this

case. In Mencel, the at-fault driver had liability insurance of $500,000, the jury awarded

$804,450, and the driver‟s insurer subsequently settled for $725,000. Id. at 628. The

court then held that the jury verdict, rather than the later settlement, determined the




                                            7
amount of full compensation and that the injured party‟s UIM coverage should pay the

difference of the two, to the extent of the UIM policy limits. Id. at 629.

¶15           The driver in Mencel actually was underinsured. But here, because State

Farm had removed the liability policy limit, Smith was not underinsured. Accordingly,

policy limits could not have played a role in Hamill‟s decision to settle. So the issue of

whether the settlement amount or the jury verdict defines the damages is irrelevant.1

¶16           Additionally, Hamill contends that Mid-Century should be “estopped from

arguing that [he] has been fully compensated by the settlement after telling [his] counsel

that [he] could settle with State Farm and Mid-Century would still be liable for the

difference between the settlement amount and his proven damages.” The portions of the

record Hamill cites as support in fact only state that Mid-Century would be entitled to

offset the amount he received from State Farm against any damages awarded through

arbitration, which is exactly what happened here. The statements were not a promise to

pay the difference between the settlement amount and the jury verdict, as Hamill

suggests.

¶17           Analogizing to Nationwide Mutual Insurance Co. v. Stevens, 166 Ariz. 372,

802 P.2d 1071 (App. 1990), overruled on other grounds by Deese v. State Farm Mutual

Automobile Insurance Co., 172 Ariz. 504, 838 P.2d 1265 (1992), Hamill also contends

that Mid-Century was not entitled to “the benefit of . . . Smith‟s and State Farm‟s


       1
        Furthermore, Mencel is not Arizona law and is not, therefore, controlling
authority.

                                             8
settlement with [him].” In Stevens, there were multiple defendants, which included an

uninsured driver and an insured mother who was sued for negligent supervision. Id. at

374, 802 P.2d at 1073. The mother‟s liability insurance carrier settled for her policy

limits in exchange for a release of all claims against both the driver and the mother. Id.

In determining whether the injured party could recover damages under the uninsured

motorist provision of his automobile liability policy, the court focused, in part, on

whether the driver had a liability policy applicable at the time of the accident. Id.

Because the court found there was no applicable policy, the driver was determined to be

uninsured, and the injured party was entitled to uninsured motorist coverage under his

policy. Id.

¶18           The court in Stevens examined the policy applicable at the time of the

accident, as we have here; thus, the case does not support Hamill‟s contention.2 See id.

Additionally, Mid-Century stepped into Smith‟s shoes by providing underinsured

motorist protection. See Arrington, 192 Ariz. 255, ¶ 17, 963 P.2d at 338. Once Smith‟s

liability was extinguished through liability insurance, so was Mid-Century‟s.

¶19           Hamill finally appears to claim that the jury verdict is still in force because

no “Satisfaction of Judgment has been filed,” despite the fact that he settled for a lesser




       2
        Moreover, we note that the statutes pertaining to uninsured and underinsured
motorists are “separate and distinct,” A.R.S. § 20-259.01(H), and can be subject to
different statutory interpretation, Cundiff, 217 Ariz. 358, ¶¶ 13-14, 174 P.3d at 273-74.

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amount.3 But whether such a document has been filed has no bearing on the central issue

in this case—the determination of whether Smith was underinsured.

                                      Conclusion

¶20          In light of the foregoing, we affirm the trial court‟s grant of summary

judgment in favor of Mid-Century. We decline both parties‟ requests for attorney fees.




                                            /s/ Joseph W. Howard
                                            JOSEPH W. HOWARD, Chief Judge

CONCURRING:

/s/ J. William Brammer, Jr.
J. WILLIAM BRAMMER, JR., Presiding Judge


/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge




      3
       Because we conclude Smith was not underinsured, we need not address Hamill‟s
remaining arguments.
                                       10
