Smith v. Illinois Farmers Insurance Co. , 1990 Minn. App. LEXIS 463 ( 1990 )

PARKER, Judge

(dissenting).

I respectfully dissent on the ground that the majority opinion is contrary to explicit statutory language and has reversed 180 degrees a fundamental tenet of statutory construction.

Mandatory coverages may contain restrictions and exceptions only as authorized by statute; Minn.Stat. § 65B.49, subd. 8 (1988), states:

[A]ny coverage issued * * * shall comply with the provisions of this section, any provisions of law or of the contract notwithstanding.

I

These policies contain territorial limitations on three coverages; only two are explicitly authorized by statute:

1.Residual liability, a third-party coverage which follows the vehicle rather than the person, is specifically authorized to be limited territorially in its application by Minn.Stat. § 65B.49, subd. 3(2):

Under residual liability insurance the reparation obligor shall be liable to pay, on behalf of the insured, sums which the insured is legally obligated to pay as damages because of bodily injury and property damage arising out of the ownership, maintenance or use of a motor vehicle if the injury or damage occurs within this state, the United States of America, its territories or possessions, or Canada. * * *

2. No-fault basic economic loss benefits are similarly subject to territorial limitations by specific statutory authorization:

If the accident or injury occurs outside this state in the United States, United States possessions, or Canada, the following persons and their surviving dependents suffering loss from injury arising out of maintenance or use of a motor vehicle or as a result of being struck as a pedestrian by a motorcycle have a right to basic economic loss benefits * * *.

Minn.Stat. § 65B.46, subd. 2 (1988).

3. Uninsured motorist (UM) coverage is also restricted territorially by the policy. There is no statutory authorization for this limitation.

The question then becomes: can such a statutory authorization be implied? I submit that respondents’ argument assumes its conclusion by the assertion that “the uninsured motorist provision of the No-Fault Act is territorially neutral.”

Minn.Stat. § 65B.49, subd. 3a (1988), requires, as mandatory UM coverage:

The coverages * * * must provide limits of $25,000 because of injury to * * * one person in any accident and $50,000 because of injury to * * * two or more persons in any accident.

(Emphasis supplied). To call such broadly inclusive language “territorially neutral” in the context of a statutory scheme containing specific authorization for territorial restrictions as to the other two major coverages is of dubious logic.

II

A basic maxim of statutory construction is expressed in the ancient phrase, “inclusio unius est exclusio alterius,” which Black’s Law Dictionary (5th Ed.1979) translates as “[t]he inclusion of one is the exclusion of another.” This has been codified in Minn. Stat. § 645.19:

Exceptions expressed in a law shall be construed to exclude all others.

(Emphasis supplied).

The majority has turned statutory construction on its head. Recognizing that the aforementioned sections of the statute allow geographical limitations to mandated PIP and liability coverage, they, by implication, in elude another.

Minn.Stat. § 65B.49, subd. 3 (1988), defines the scope of mandatory UM coverage in seven numbered paragraphs explicitly identifying exceptions and limitations to that coverage allowed to be imposed on policies. Authorization for territorial limitation is conspicuous by its absence.

No territorial limitations on first-party coverage were initially authorized by the Minnesota no-fault scheme. Minn.Stat. § 65B.46(2) (1974). They have been imposed by amendment:

* In 1980 an amendment allowed geographic limitation on basic economic loss benefits (which did not include UM benefits. See Minn.Stat. § 65B.43, subd. 10).

* In 1985 an amendment allowed a “geographic” limitation on UM benefits as to this first party coverage following the party to an owned, uninsured motor vehicle.

Respondents argue that there is no rational basis for distinguishing between UM protection and other coverages provided under the No-Fault Act. The short answer is that a distinction must have been evident to the legislature, for it took legislative action over several sessions to set territorial and geographic restrictions as we presently find them, and this process involved a comprehensive overhaul of uninsured/underinsured motorist coverage requirements at the 1985 session.

This brings us to what I regard as the most telling error of the majority opinion: it undertakes a task which has received vast legislative attention and which is the prerogative of that body. The entire vehicular insurance field can, realistically, be said to be today the creature of the legislature. Contending interests argue out every “minor” amendment on grounds of public policy and private interest. Virtually every session since enactment of the No-Fault Act has seen it “fine-tuned.” Legislative bodies, with their representative character and hearing procedures, are admirably suited for such a task. I am at a loss to understand why courts should, at this late date, allow themselves to be used to imply amendments to allow limitations or exceptions to statutorily mandated coverages. I would reverse the trial court.