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Levine v. State Farm Mutual Automobile Insurance Co.3/8/2004
of $50,000. He was not, however, underinsured by the full $100,000. To the contrary, that $50,000 coverage was available to Levine. See Greenvall v. Me. Mut. Fire Ins. Co., 1998 ME 204, 8, 715 A.2d 949, 952-53 (joining jurisdictions that hold an insured may be "legally entitled to recover" without first obtaining a judgment against an uninsured motorist). Accordingly, the $50,000 available from Kruzynski's carrier cannot be considered an amount by which Kruzynski's vehicle was underinsured. See 24-A M.R.S.A. § 2902(1) (stating that an underinsured vehicle is one that has less coverage than the injured party's uninsured vehicle coverage).
Other states have reached similar conclusions. "Generally, [an underinsured vehicle coverage] carrier is entitled to offset the amount of the tortfeasor's liability limits." Farmers Ins. Co. of Wash. v. Lautenbach, 963 P.2d 965, 967 (Wash. Ct. App. 1998) (emphasis added). This is consistent with our conclusion that underinsured vehicle coverage "fills the gap left by an underinsured tortfeasor" and is designed 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.'" Tibbetts v. Me. Bonding & Cas. Co., 618 A.2d 731, 734 (Me. 1992) (emphasis added) (quoting Connolly v. Royal Globe Ins. Co., 455 A.2d 932, 935 (Me. 1983)).
We conclude, therefore, that State Farm is not responsible for the amount Levine could have obtained pursuant to Kruzynski's policy; rather, State Farm is responsible for paying $50,000--the extent to which Kruzynski's vehicle was underinsured. See 24-A M.R.S.A. § 2902(1); Tibbetts, 618 A.2d at 734. Nothing in the statute requires a contrary result.
Finally, if we were to accept Levine's argument that the underinsured vehicle coverage carrier may not offset from its responsibility the amount of insurance held by the tortfeasor, the economic risks of injury in motor vehicle accidents would shift entirely to the underinsured vehicle coverage carrier. The expense involved in providing uninsured/underinsured vehicle coverage would increase, the cost to consumers would increase, and an insurance product originally required by the Legislature to protect against those who fail to carry adequate insurance would be treated as if it were the primary source of coverage notwithstanding the tortfeasor's own coverage. The Legislature neither mandated nor intended such a result.
The entry is: Judgment vacated. Remanded to the Superior Court for entry of judgment against State Farm in the amount of $50,000, with interest and costs, if any, to be determined by the court.
RUDMAN, J., with whom CALKINS, J., joins, dissenting.
Because I disagree with the way the Court frames and resolves the issue before us today, I respectfully dissent. The issue is whether State Farm's uninsured/underinsured vehicle policy provides less coverage than is required by Maine's uninsured/underinsured vehicle law. The Court, focusing on legislative intent, holds that State Farm's policy does not impermissibly limit coverage. Upon review of the plain language of the statute, however, it is clear that the insurance contract provides less coverage than is required under the law.
The Court fairly recites the facts, however, I would add that Levine, being only fifteen years of age at the time of the accident, normally would be entitled to more time to bring her suit than an adult would have been. Moreover, because the tortfeasor did not die in Maine, and his death was not reported in Maine newspapers, there is no reason to believe that Levine was negligent in not bringing her suit earlier. Unawar
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