                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                        Docket No. 38703

FARM BUREAU MUTUAL INSURANCE                         )
COMPANY OF IDAHO,                                    )
                                                     )
      Plaintiff-Counterdefendant-Appellant,          )        Boise, June 2012 Term
                                                     )
v.                                                   )        2012 Opinion No. 127
                                                     )
MICHAEL JOHN EISENMAN, KATHRYN                       )        Filed: September 19, 2012
MARIE, individually and co-personal                  )
representatives of THE ESTATE OF                     )        Stephen Kenyon, Clerk
PATRICIA EISENMAN,                                   )
                                                     )
      Defendants-Counterclaimants-                   )
      Respondents,                                   )
                                                     )
and                                                  )
                                                     )
REBECCA L. MC GAVIN and PETER                        )
EISENMAN, individually,                              )
                                                     )
     Defendants-Respondents.                         )

        Appeal from the District Court of the Fourth Judicial District of the State of
        Idaho, Ada County. Hon. Michael R. McLaughlin, District Judge.

        The decision of the district court is reversed and the case is remanded for entry of
        a judgment in favor of Farm Bureau.

        Saetrum Law Offices, Boise, for appellant. Rodney Saetrum argued.

        Moore & Elia, LLP, Boise, for respondents. Michael Moore argued.
             _______________________________________________

HORTON, Justice.
        This appeal arises from a declaratory judgment action brought by Farm Bureau Mutual
Insurance Company of Idaho (Farm Bureau). Farm Bureau commenced the action in response to
a claim for insurance benefits filed by the personal representatives of the estate of a deceased
policyholder (the Estate). Farm Bureau requested a judgment declaring that the Estate is not an



                                                 1
“insured” under the decedent’s insurance policy (the Policy) and is therefore not entitled to
payment of wrongful death damages under the Policy’s underinsured motorist coverage.
       The district court granted the Estate’s motion for summary judgment, determining that
Idaho’s wrongful death statute, I.C. § 5-311, entitles the insured’s Estate to recover damages for
wrongful death and that the Policy provided coverage for those damages. Farm Bureau timely
appealed. We reverse.
                     I. FACTUAL AND PROCEDURAL BACKGROUND
       Farm Bureau sold Patricia Eisenman an insurance policy that provided coverage up to
$500,000 for damages caused by an underinsured motorist. While crossing a Boise street on
November 30, 2007, Eisenman was struck and killed by a car driven by a drunk driver. The
driver’s insurance carrier paid the Estate $50,000, which was the limit of the policy’s liability
coverage. Because the liability limit of the driver’s policy was less than Eisenman’s underinsured
motorist coverage limit, the driver is an underinsured motorist within the definition in
Eisenman’s policy.
       Eisenman is survived by four adult children: Michael Eisenman, Kathryn Marie, Rebecca
McGavin, and Peter Eisenman (the Heirs). None of the Heirs were named as insureds on the
Policy nor did any of the Heirs live with Eisenman at the time of her death. Michael Eisenman
and Kathryn Marie were appointed to serve as personal representatives of the Estate. On April
28, 2010, the Estate submitted a proof of loss to Farm Bureau. Pursuant to the underinsured
motorist provision, the Estate claimed medical and funeral expenses and sought payment of
damages for wrongful death under I.C. § 5-311. Eisenman’s policy provided accidental death
coverage, and Farm Bureau paid that benefit to the Estate as well as $22,941.40 for the “special
damages” listed in the proof of loss. However, Farm Bureau denied the claim for wrongful death
damages.
       Farm Bureau first filed an action for declaratory relief on May 26, 2010. Farm Bureau
later amended the complaint and asked for a declaration that the Heirs and the Estate “are not
insureds under [the Policy] and that they cannot recover underinsured motorist payments under
the underinsured motorist coverage . . . .” The Estate and Heirs counterclaimed against Farm
Bureau for breach of contract. The parties filed motions for summary judgment on the issue of
whether the Estate or the Heirs are entitled to payment of wrongful death damages under the
Policy’s underinsured motorist coverage provisions. The district court denied Farm Bureau’s

                                                2
motion and granted summary judgment in favor of the Estate and Heirs. Farm Bureau timely
appealed and asks this Court to vacate the district court’s judgment and enter judgment in its
favor.
                                  II. STANDARD OF REVIEW
         This Court reviews appeals from an order of summary judgment de novo and uses the
same standard the trial court uses in ruling on a motion for summary judgment. Curlee v.
Kootenai Cnty. Fire & Rescue, 148 Idaho 391, 394, 224 P.3d 458, 461 (2008) (citing Lockheed
Martin Corp. v. Idaho State Tax Comm’n, 142 Idaho 790, 793, 134 P.3d 641, 644 (2006)). Under
that standard, summary judgment is appropriate if “the pleadings, depositions, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” I.R.C.P. 56(c).
Additionally, we construe disputed facts in favor of the non-moving party, and draw all
reasonable inferences from the record in favor of the non-moving party. Curlee, 148 Idaho at
394, 224 P.3d at 461. Where “the evidence reveals no disputed issues of material fact, then only
a question of law remains, over which this Court exercises free review.” Lockheed, 142 Idaho at
793, 134 P.3d at 644.
         This Court exercises free review over questions of statutory interpretation and
application. Flying Elk Inv., LLC v. Cornwall, 149 Idaho 9, 15, 232 P.3d 330, 336 (2010)
(citations omitted). On review, “[a]n unambiguous statute must be given its plain, usual, and
ordinary meaning. Statutory provisions should not be read in isolation but instead are interpreted
in the context of the entire document.” Id. “A statute is ambiguous where the language is capable
of more than one reasonable construction.” Hayden Lake Fire Prot. Dist. v. Alcorn, 141 Idaho
388, 398, 111 P.3d 73, 83 (2005) (quotation omitted), rev’d on other grounds by Farber v. Idaho
State Ins. Fund, 152 Idaho 495, 272 P.3d 467 (2012). However, statutory language is not
ambiguous “merely because the parties present differing interpretations to the court.” State v.
Doe, 140 Idaho 271, 274, 92 P.3d 521, 524 (2004) (citing Matter of Permit No. 36–7200, 121
Idaho 819, 823, 828 P.2d 848, 852 (1992)).
         In interpreting an insurance policy, “where the policy language is clear and unambiguous,
coverage must be determined, as a matter of law, according to the plain meaning of the words
used.” Cascade Auto Glass, Inc. v. Idaho Farm Bureau Ins. Co., 141 Idaho 660, 662, 115 P.3d
751, 753 (2005) (quoting Clark v. Prudential Prop. & Cas. Ins. Co., 138 Idaho 538, 541, 66 P.3d

                                                  3
242, 245 (2003)). A policy is ambiguous if it “is reasonably subject to conflicting
interpretations.” Cherry v. Coregis, 146 Idaho 882, 884, 204 P.3d 522, 524 (2009) (citing
Farmers Ins. Co. of Idaho v. Talbot, 133 Idaho 428, 432, 987 P.2d 1043, 1047 (1999)). We
exercise free review in determining whether an insurance policy is ambiguous. Arreguin v.
Farmers Ins. Co. of Idaho, 145 Idaho 459, 461, 180 P.3d 498, 500 (2008) (citing Talbot, 133
Idaho at 432, 987 P.2d at 1047).
                                         III. ANALYSIS
A. Eisenman’s underinsured motorist coverage does not extend to heirs that are not
insureds merely because the Estate is entitled to bring a wrongful death action on behalf of
the heirs.
       The Estate argues that it holds all contract rights the decedent held before her death and
that it is legally entitled to recover damages for Eisenman’s death under Idaho’s wrongful death
statute, Idaho Code § 5-311. Therefore, it argues, the Estate is entitled to payment of those
damages pursuant to the underinsured motorist provision in the Policy, which provides that Farm
Bureau will pay damages that an insured, as defined by the Policy, is legally entitled to recover.
       The personal representative of an estate is “a fiduciary,” who is “under a duty to settle
and distribute the estate of the decedent . . . .” I.C. § 15-3-703(a). However, as we explained in
Whitley v. Spokane & Inland Railway Company, the personal representative’s role in the context
of wrongful death actions is only “as trustee for the heirs.” 23 Idaho 642, 659, 132 P. 121, 126
(1913), aff’d sub nom. Spokane & I.E.R. Co. v. Whitley, 237 U.S. 487 (1915). Along with these
duties, a personal representative may “[e]xercise the same power as the decedent in performance,
compromise or refusal to perform the decedent’s contracts which continue as obligations of the
decedent’s estate.” I.C. § 15-3-715(3). Idaho Code further provides that:
       Except as to proceedings which do not survive the death of the decedent, a
       personal representative of a decedent domiciled in this state at his death has the
       same standing to sue and be sued in the courts of this state and the courts of any
       other jurisdiction as his decedent had immediately prior to death.

I.C. § 15-3-703(c) (emphasis added). Thus, while the personal representative “steps into the
shoes” of the decedent to administer the estate, and may sue on causes of action the decedent
may have pursued, the personal representative may not bring an action that abated upon the death
of the decedent.
       Any damages an estate recovers in an action for the wrongful death of the decedent inure
solely to the benefit of the heirs. Claims for pain and suffering abate upon the death of the

                                                 4
injured person. Evans v. Twin Falls Cnty., 118 Idaho 210, 216, 796 P.2d 87, 93 (1990) (quoting
Vulk v. Haley, 112 Idaho 855, 859, 736 P.2d 1309, 1313 (1987)). However, the heirs of a person
who has been killed by a tortfeasor have a separate cause of action against the tortfeasor under
Idaho’s wrongful death statute:
       When the death of a person is caused by the wrongful act or neglect of another,
       his or her heirs or personal representatives on their behalf may maintain an action
       for damages against the person causing the death, or in case of the death of such
       wrongdoer, against the personal representative of such wrongdoer, whether the
       wrongdoer dies before or after the death of the person injured.

I.C. § 5-311(1) (emphasis added). A wrongful death claim is “an entirely new cause of action . . .
.” Castorena v. Gen. Elec., 149 Idaho 609, 616, 238 P.3d 209, 216 (2010). This cause of action is
“entirely distinct from any action the decedent may have brought on her own behalf, prior to her
death . . . .” Id. at 619, 238 P.3d at 219 (citing Russell v. Cox, 65 Idaho 534, 529, 148 P.2d 221,
223 (1944)). Further, we have held that a judgment granted in a wrongful death action “inures to
the benefit of the heirs of the decedent and in no case becomes a part of the assets of the estate of
the deceased.” Whitley, 23 Idaho at 659, 132 P. at 126; see also Moon v. Bullock, 65 Idaho 594,
605, 151 P.2d 765, 770 (1944) (holding that “no right of action is given to the estate of the victim
of a tort, but is granted only to his heirs . . . [i]f there are no heirs, no right of action vests in
anybody.”), overruled on other grounds by Doggett v. Boiler Eng’g & Supply Co., Inc., 93 Idaho
888, 477 P.2d 511 (1970); Russell, 65 Idaho at 534, 148 P.2d at 223 (holding that the cause of
action created by I.C. § 5-311 “does not benefit the estate.”), superseded in part by statute, I.C. §
5-327. Thus, a decedent’s estate is not legally entitled to recover damages for the decedent’s
wrongful death; only the decedent’s heirs may recover those damages, either through an action
brought by the heirs themselves or through an action brought by the estate on behalf of the heirs.
       In this case, while the Estate may pursue a wrongful death claim on behalf of the Heirs,
the underinsured motorist coverage does not extend to the Heirs or the Estate because they are
not insureds under the Policy. The Policy language governing the coverage for injuries caused by
underinsured motorists provides that “[Farm Bureau] will pay damages which an insured is
legally entitled to recover from the owner or operator of an underinsured motor vehicle
because of bodily injury sustained by an insured . . . .” (emphasis original). Under the plain
language of the Policy, the underinsured motorist provision only pays damages to which an
insured is entitled. The Heirs concede that they are not insureds as defined in the Policy. Because

                                                  5
Eisenman’s own cause of action against the underinsured motorist in this case abated upon her
death, we hold that the Heirs are not entitled to payment for wrongful death pursuant to the
underinsured motorist coverage.
       As to the Estate, it is true that it assumed Eisenman’s contractual rights and obligations,
along with the right to enforce any causes of action that Eisenman may have possessed.
However, under the plain language of the wrongful death statute, the Estate is not legally entitled
to recover damages for itself, but only to bring an action on behalf of the heirs to recover their
damages. As explained in Whitley, the Estate—as a fiduciary or agent of the Heirs—does not
have a separate legal interest in the judgment. Consequently, we hold that the Estate is not
legally entitled to recover underinsured motorist benefits under the Policy for Eisenman’s
wrongful death.
B. Farm Bureau’s arguments are not barred by any doctrine of estoppel.
       The Estate also contends that Farm Bureau should be estopped from arguing that Farm
Bureau has never paid damages to the Estate pursuant to the underinsured motorist provision and
that the provision does not contain a promise to pay damages to the Estate. We hold that no
estoppel theory applies in this case.
       The Estate has not favored this Court with any citations to authority regarding its
argument for estoppel. However, considering the Estate’s framing of the issue, the only estoppel
doctrine that might apply is quasi-estoppel. Generally, quasi-estoppel applies to situations
wherein “it would be unconscionable to allow a party to assert a right that is inconsistent with a
prior position. Sagewillow, Inc. v. Idaho Dep’t of Water Res., 138 Idaho 831, 845, 70 P.3d 669,
683 (2003) (citing Willig v. Idaho Dep’t of Health & Welfare, 127 Idaho 259, 899 P.2d 969
(1995)). More specifically, we have held that “[q]uasi-estoppel is properly invoked against a
person asserting a claim inconsistent with a position previously taken by that person with
knowledge of the facts and his or her rights, to the detriment of the person seeking application of
the doctrine.” The Highlands, Inc. v. Hosac, 130 Idaho 67, 70, 936 P.2d 1309, 1312 (1997)
(citing KTVB, Inc. v. Boise City, 94 Idaho 279, 282, 486 P.2d 992, 995 (1971)). Usually, a
party’s failure to cite any authority for its position would result in the issue being waived. State
v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996) (citations omitted) (holding that issues
“not supported by propositions of law, authority, or argument . . .” are waived “if either authority
or argument is lacking, not just if both are lacking.”). But in this case, we take the opportunity to

                                                 6
make it clear that where an insurer pays some valid claims pursuant to a provision of a policy it
issued, it is not thereby estopped from subsequently denying other claims that are not valid under
the policy.
        Pursuant to the Policy, Farm Bureau paid the Estate for Eisenman’s hospital and funeral
expenses and for an accidental death benefit. Because Eisenman herself was entitled both to the
death benefit and to recover her hospital and funeral expenses, the Estate stepped into
Eisenman’s shoes for those claims, and Farm Bureau made those payments to the Estate. Farm
Bureau’s payment of these legitimate claims under the insurance contract does not constitute a
change of position or an admission that coverage exists for other claims. We hold that these
payments do not prevent Farm Bureau from arguing that it is not required to pay the Estate for
damages that Eisenman was not legally entitled to recover.
C. The Estate is not entitled to attorney fees pursuant to Idaho Code § 41-1839.
        The Estate argues that it is entitled to attorney fees pursuant to Idaho Code § 41-1839
because Farm Bureau failed to pay the wrongful death damages that were “justly due” within
thirty days of receiving the Estate’s proof of loss. Before an insured is “entitled to an award of
attorney fees under this provision, the insured must prevail.” Arreguin v. Farmers Ins. Co. of
Idaho, 145 Idaho 459, 464, 180 P.3d 498, 503 (2008) (citing Slaathaug v. Allstate Ins. Co., 132
Idaho 705, 711, 979 P.2d 107, 113 (1999)). Because the Estate is not the prevailing party on
appeal, it is not entitled to attorney fees.
                                          IV. CONCLUSION
        We reverse the judgment of the district court and remand this matter to the district court
for entry of a judgment in favor of Farm Bureau. Costs to Farm Bureau.

        Chief Justice BURDICK and Justice EISMANN CONCUR.

        J. JONES, J., specially concurring.
        I concur in the Court’s opinion, including the conclusion that neither the Estate nor the
Heirs can recover underinsured motorist benefits under the Policy based on a wrongful death
claim. That does not mean, however, that a personal representative, acting on behalf of an
insured decedent’s estate, may not recover benefits contractually available under an insurance
policy like that involved here.
        Coverage P-1 of the Policy, the underinsured motorist provision, states:

                                                7
       We will pay damages which an insured is legally entitled to recover from the
       owner or operator of an underinsured motor vehicle because of bodily injury
       sustained by an insured and caused by an occurrence.

This language states, without qualification or limitation, that Farm Bureau will pay damages that
an insured is legally entitled to recover from an underinsured motorist because of bodily injury
(defined as “physical injury or death”) sustained by the insured in an accident (occurrence).
Damages that an injured plaintiff is legally entitled to recover as a result of an accident are
itemized in Idaho’s pattern jury instructions (IDJI2d) and include pain and suffering, impairment
of abilities, disfigurement, aggravation of preexisting conditions, necessary medical expenses,
past and future earnings, and necessary services provided by others. IDJI 9.01. Those elements of
damage certainly appear to be available to any insured under the Policy.
       Nevertheless, Farm Bureau argues that “[u]nder Idaho law, any claim [Eisenman] had
against the tortfeasor ended with her death,” citing Evans v. Twin Falls County, 118 Idaho 210,
796 P.2d 87 (1990). Farm Bureau stretches the holding in that case a bit because the case dealt
specifically with the abatement of a claim for “pain and suffering” upon a decedent’s death. Id.
at 216, 796 P.2d at 93. However, there is no language in the Policy stating that damages
available under Coverage P-1 will not be paid if the insured dies. Indeed, this position is a bit
difficult to reconcile with the contract language stating Farm Bureau will pay damages for the
insured’s bodily injury, which the Policy specifically defines as “physical injury or death to a
person.” Thus, the Policy clearly states that Farm Bureau “will pay damages which an insured is
legally entitled to recover . . . because of [physical injury or death] sustained by an insured.”
Farm Bureau’s promise to pay damages resulting from the death of the insured must mean
something, perhaps that any legally recoverable damages that accrue under Coverage P-1 from
the time of the occurrence to and including the death of the insured will be paid by Farm Bureau.
Farm Bureau does know how to restrict its liability because Coverage P-1 goes on to specifically
exclude from coverage “bodily injury for which a claim against the owner or driver of the . . .
underinsured motor vehicle is barred by the applicable statute of limitations.” However, there
is no language in Coverage P-1 that limits the company’s obligation to pay damages for the
physical injury or death of the insured. Apparently, Farm Bureau takes the position that the
common law rule of non-survival of causes of action must be read into every insurance contract,




                                                8
regardless of whether the policy language may state or imply otherwise, and that parties to a
contract may not agree to override the effect of a generally applicable rule of law.
       While Farm Bureau’s interpretation of Coverage P-1 may have some merit, it is more
likely that a reasonable person would understand the language to mean that the insured is entitled
to recover all damages available under IDJI 9.01 that began accruing and vesting under the
Policy from the time of the accident. See Farm Bureau Mut. Ins. Co. v. Schrock, 150 Idaho 817,
821, 252 P.3d 98, 102 (2011) (“If confronted with ambiguous language, the reviewing court must
determine what a reasonable person would understand the [insurance policy] language to
mean.”) “[W]here [insurance policy] language may be given two meanings, one of which
permits recovery while the other does not, the policy should be given the construction most
favorable to the insured.” Id. Further, “Since ambiguous language is construed in favor of the
insured, ‘the burden is on the insurer to use clear and precise language if it wishes to restrict the
scope of its coverage.’” Mortensen v. Stewart Title Guaranty Co., 149 Idaho 437, 442, 235 P.3d
387, 392 (2010) (bolding in original) (citing Arreguin v. Farmers Ins. Co., 145 Idaho 459, 461,
180 P.3d 498, 500 (2008)). Here, there is no contract language indicating that the unequivocal
commitment to pay recoverable damages for physical injury or death is conditioned upon the
insured’s survival, that the insured is not entitled to all elements of damage that began accruing
immediately upon the occurrence of the accident, or that the decision as to whether or not
damages are payable will only be determined after the insured sues the tortfeasor and recovers
during his or her lifetime. Farm Bureau could have placed such language in the Policy in order to
make clear its claimed limitation of exposure, but it failed to do so.
       Damages in an accident accrue from the instant the accident occurs. In this case medical
expenses were required for Eisenman from the inception of the accident and accrued until her
death several hours later. Her death was an insured bodily injury that necessitated the payment of
funeral expenses. Although a specific provision of the Policy provided for payment of
“reasonable and necessary medical and funeral expenses incurred within 3 years from the date
of” the accident, Coverage P-1 would also require payment of such expenses. In this case the
Estate’s proof of loss does not include claims for pain and suffering or lost income, presumably
because the insured died within hours of the accident. However, had the insured lingered on for
weeks or months and sustained pain and suffering or loss of income, those elements of damage
would also be recoverable under the Policy. Even though this Court has held that a claim for pain

                                                  9
and suffering abates upon a decedent’s death (Evans, 118 Idaho at 216, 796 P.2d at 93), the
Policy here allows for recovery of those damages, being damages an insured “is legally entitled
to recover from the” underinsured motorist, at least until the pain and suffering ceases upon the
insured’s death. Similarly, lost income is an element of damage which an insured is legally
entitled to recover. Although neither pain and suffering nor lost income is at issue in this case,
our decision should not be read to preclude their recovery in an appropriate factual situation
different from that involved here.
           While I agree that neither the Estate nor the Heirs may recover wrongful death damages
under the Policy, that does not mean that the Estate may not, standing in the shoes of the
decedent, recover benefits contractually owing under the language of Coverage P-1. Under I.C.
§ 15-3-715(3), the personal representative steps into the shoes of the decedent with regard to the
decedent’s contracts. While a wrongful death action by the Estate or Heirs is a separate statutory
claim, not based upon contract, a claim for underinsured motorists benefits is solely based on
contract. However, in this case, since the insured decedent’s medical and funeral expenses have
already been paid and since no claim has been made for any other potentially recoverable
elements of damage, the district court’s holding is appropriately reversed.

           W. JONES, J., specially concurring:
           I join the majority’s holding that the Estate cannot recover damages available under the
wrongful death statute, I.C. § 5-311, such as loss of care, comfort, companionship, and society.
See generally Horner v. Sani-Top, Inc., 143 Idaho 230, 141 P.3d 1099 (2006) (discussing
available damages). I further join the majority’s holding that Respondents waived the estoppel
issue by failing to cite authority or to argue the point. I write separately to highlight my reasons
for reaching those conclusions.
           The key to resolving this case is to differentiate between two types of indemnity:
coverage that is defined solely by tort-law principles and coverage defined by contract, i.e. the
Policy. “COVERAGE P-1—UNDERINSURED MOTORIST” falls into the first category. It
provides: “We will pay damages which an insured is legally entitled to recover from the owner
or operator of an underinsured motor vehicle because of bodily injury sustained by an insured
and caused by an occurrence.” 1 In this case, tragically, Mrs. Eisenman died shortly after the


1
    Boldface words and phrases are defined in the Policy.

                                                            10
accident. At the moment she died, she lost not only her right to recover against the underinsured
motorist in tort, see Bishop v. Owens, 152 Idaho 616, 272 P.3d 1247, 1250 (2012), but also the
coterminous right to recover against Farm Bureau under Coverage P-1.
       Farm Bureau could have worded Coverage P-1 differently to move it into the second
category of indemnity. For example, it could have promised: “In the event of the death of an
insured, we will pay damages which, but for the death of the insured, the insured would be
legally entitled to recover from the owner or operator of an underinsured motor vehicle because
of bodily injury sustained by an insured and caused by an occurrence.” This phrasing would
have extended Coverage P-1 to situations in which the insured died, notwithstanding the fact that
she could not have recovered anything against the underinsured motorist; however, this is not the
policy that Farm Bureau wrote and that Mrs. Eisenman purchased.
       An example of the second category of indemnity that does appear in the Policy is
“COVERAGE Q—MEDICAL PAYMENTS.” It provides: “We will pay the reasonable and
necessary medical and funeral expenses incurred within 3 years from the date of occurrence to
each insured who sustains bodily injury caused by an occurrence.”                Similarly, under
“SECTION III ENDORSEMENTS” Farm Bureau agreed “to pay $5,000 if an insured dies
solely as a result of bodily injury caused by an occurrence while occupying or struck by a
motor vehicle.     Death of the insured must occur within 90 days after the date of the
occurrence.”     Neither of these provisions is limited by what Mrs. Eisenman could have
recovered in tort, and her death did not abate her contractual right to indemnification under them.
       With this distinction in mind, it is clear that Farm Bureau’s payment of medical and
funeral expenses could not estop it from refusing to pay wrongful death damages, as
Respondents argue.     Upon Mrs. Eisenman’s death, the sums due under Coverage Q were
properly payable, whereas nothing was due under Coverage P-1.
       Finally, I must note my disagreement in one respect with Justice Jim Jones’ concurrence.
He states: “had the insured lingered on for weeks or months and sustained pain and suffering or
loss of income, those elements of damage would also be recoverable under the Policy.” There is
no basis for such a conclusion in the Policy. Coverage P-1 would have indemnified Mrs.
Eisenman for these damages only if she survived until she won a judgment against the
underinsured motorist. This is so because a judgment, unlike a mere tort chose in action, does
not abate when the decedent dies, but instead remains enforceable by the decedent’s estate

                                                11
through her personal representative upon application. See I.C. § 11-106(1). Without a judgment
against the underinsured motorist, we would not be at liberty to disregard the fact that Mrs.
Eisenman’s death extinguished her tort claims, regardless of whether she survived for a week, a
month, or a year.
       Justice Jim Jones omits the critical language of the Policy stating that Mrs. Eisenman can
recover for what she could recover “from the owner or operator of an underinsured motor
vehicle.” As previously noted, Mrs. Eisenman could not recover anything from the owner or
operator once she was dead. Mrs. Eisenman would have been entitled to recover those damages
against the underinsured motorist had she lived, but once she died, that right disappeared because
the only theory upon which she could recover any damages from the underinsured motorist is a
tort theory and torts abate upon death. Castorena v. Gen. Elec., 149 Idaho 609, 614, 238 P.3d
209, 214 (2010) (recognizing the generally accepted common law rule that “where a person was
injured by the wrongful act or omission of another any right for civil relief ended with the
injured party’s death.”); Steele v. Kootenai Med. Ctr., 142 Idaho 919, 920, 136 P.3d 905, 906
(2006) (recognizing the Idaho Legislature has adopted the common law of England providing a
personal injury action abates with the death of the victim); Hayward v. Vally Vista Care Corp.,
136 Idaho 342, 351 n.2, 33 P.3d 816, 825 n.2 (2001) (“[A]n action for personal injuries does not
survive the death of the victim of the tort.”); Evans v. Twin Falls Cnty., 118 Idaho 210, 217, 796
P.2d 87, 94 (1990) (“[T]he common law has not been modified or changed in Idaho either by
statute or the Constitution, and therefore the general common law rule that personal causes of
action do not survive the death of the injured party is the rule in Idaho.”); Vulk v. Haley, 112
Idaho 855, 858–59, 736 P.2dd 1309, 1312–13 (1987) (holding that pain and suffering does not
survive the death of the injured); Craig v. Gellings, 148 Idaho 192, 219 P.3d 1208 (Ct. App.
2009) (affirming district court’s order dismissing plaintiff’s personal injury action on the ground
her claims abated when she died during the pendency of the action). Mrs. Eisenman obviously
had no contractual basis on which to recover any damages against the underinsured motorist.
There is nothing in the Policy providing damages for pain and suffering or an insured’s lost
income after the death of the insured. As noted above, only reasonable and necessary medical
and funeral expenses incurred within three years from the date of the accident and a death benefit
of $5,000 are payable pursuant to the Policy because those damages are a matter of contract
between the insured and the insurer.

                                                12
       The bottom line is that Coverage P-1 only provides for payment of damages Mrs.
Eisenman could legally recover from the underinsured driver and it is clear that once she died
she could not recover anything from him.




                                             13
