Reading a Justice Lopez opinion is a struggle. His opinion for the court in Franklin v. CSAA Gen. Ins. Co. begins with conclusions, and he then defends these conclusions with a rulist-textualist interpretation whether he is considering a statute, a prior case, or an insurance policy. He throws punches but they do not land because his writing style is weak. Using a dictionary, he interprets the word “purchased,” and of course we find an obligatory reference to Scalia and Garner’s bible on statutory interpretation. Scalia penned the trite chiasmus: “the rule of law is a law of rules.” Keep this in mind while reading Justice Lopez’s opinion or any opinion from this court.

Where a single automobile insurance policy insures multiple vehicles, the Arizona Supreme Court holds the insured can collect underinsured motorist coverage (UIM) for each separate vehicle listed and stack the limits unless an insured strictly complies with ARS 20-259.01 (H).  This intra-policy stacking has never been the law in Arizona.  One may thus question the court pronouncing it is considering the statute’s context, history, and purpose. One may also question whether insurers are using creative policy drafting intended to evade statutory requirements since insurers do not appear to be type 4 personalities. Subpart H is simple enough: “If multiple policies or coverages purchased by one insured on different vehicles apply to an accident or claim, the insurer may limit the coverage so that only one policy or coverage, selected by the insured, shall be applicable to any one accident.” There is no need for an insurer to be creative. The next sentence in subpart H includes a cure if the selection right is not spelled out in the policy: “If the policy does not contain a statement that informs the insured of the insured’s right to select one policy or coverage as required by this subsection, within thirty days after the insurer receives notice of an accident, the insurer shall notify the insured in writing of the insured’s right to select one policy or coverage.”  This cure, the court determines, alters the policy after the fact and allowing this violates contract law. We’re confused. If we look at the contract, the coverage limit applies whether there is one or ten vehicles — but that’s being creative. If we are deciding how we read the UMA today, a larger question looms: Giving a rulist/textualist interpretation, where does one find the notion of portability upon which all of this depends?

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