Bither v. Country Mutual (CA1 11/30/10)

The issue here was whether a wrongful-death statutory beneficiary can collect UM benefits from a policy that covered the deceased but not the beneficiary. There is a statute on point; this opinion basically points out that it means what it says.

The plaintiff’s daughter was a passenger killed in a two-car accident. The other driver was uninsured. The daughter’s driver had insurance which, the parties agreed, covered daughter (as an occupant of the insured vehicle) but not mother.   Mother filed this declaratory judgment seeking UM benefits under her daughter’s driver’s policy. She moved for summary judgment; the trial court granted it. Country Mutual appealed. The Court of Appeals reversed and ordered the entry of judgment for Country Mutual.

A.R.S. § 20-259.03 says that a person who is a wrongful-death beneficiary and an insured under the policy can claim UM/UIM benefits. Mother was one but not the other, therefore she has no UM claim.

The opinion doesn’t make clear how she tried to argue around this. Arguments against the court’s decision appear obliquely, mostly in the footnotes. She seems to have cited an old case saying that the predecessor of the current statute should be construed liberally. And she argued that the statute was somehow against public policy. The Superior Court had concluded that mother was merely trying to collect damages that her daughter would have been entitled to. This is a wild misunderstanding of wrongful death and the opinion seems to suggest that mother herself didn’t try too hard to defend that position – but, again, it’s hard to tell.

The statute also says that if no beneficiary is an insured then the estate can make the UM/UIM claim. One wonders why mother fought this case rather than set up an estate; perhaps there were big claims against it.

(link to opinion)