Dircks v. Travelers Indem. Co. of Am. ( 2017 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2017 UT 73IN THE
SUPREME COURT OF THE STATE OF UTAH
DEREK DIRCKS and VALERIE DIRCKS,
Appellants,
v.
THE TRAVELERS INDEMNITY COMPANY OF AMERICA,
Appellee.
No. 20160065
Filed October 17, 2017
On certification from the
United States District Court for the District of Utah
The Honorable Jill N. Parrish
No. 2:14-cv-00118
Attorneys:
Brian S. Coutts, Scott D. Brown, Tyler Brown, Midvale, for appellants
Beth E. Kennedy, Michael D. Zimmerman, Troy L. Booher, Nicholas E.
Dudoich, Paul M. Belnap, Salt Lake City, for appellee
ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
which CHIEF JUSTICE DURRANT, and JUSTICE DURHAM joined.
JUSTICE HIMONAS filed a dissenting opinion, in which JUSTICE PEARCE
joined.
ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
¶ 1 This case is before us on a certified question from the federal
district court. We are asked to examine the terms of Utah Code section
31A-22-305.3. The question presented is whether this provision requires
that all vehicles covered under the liability provisions of an automobile
insurance policy must also be covered under the underinsured motorist
provisions of that policy, and with equal coverage limits. We conclude
DIRCKS v. TRAVELERS
Opinion of the Court
that it does, unless a named insured waives the coverage by signing an
acknowledgment form meeting certain statutory requirements.
I
¶ 2 On July 11, 2012, Derek Dircks and Michael Riley suffered
injuries in a car accident caused by another driver. Both Dircks and
Riley were employees of Mid-State Consultants, Inc. They were in
Riley’s personal vehicle on an assignment for Mid-State at the time of
the accident.
¶ 3 To cover his resulting medical bills, Dircks and his wife
sought and received liability benefits under the third-party driver’s
automobile insurance policy, as well as underinsured motorist benefits
under Riley’s policy. But the amounts received were insufficient to
cover the bills. So Dircks sought additional underinsured motorist
benefits under Mid-State’s commercial insurance policy with Travelers
Indemnity Company of America. The policy included $1 million of
liability coverage for persons driving in either a Mid-State fleet vehicle
listed in the insurance policy or a vehicle owned by a Mid-State
employee when used for Mid-State business.1 The policy also included
$1 million of underinsured motorist coverage. And it purported to limit
this coverage to persons driving in Mid-State fleet vehicles.2
¶ 4 Travelers denied Dircks’ claim on the ground that Mid-State’s
policy did not provide underinsured motorist coverage for Riley’s
vehicle. Dircks subsequently filed suit. After the parties filed cross-
motions for summary judgment, the federal district court certified to us
the question of whether state law requires that all vehicles for which
1 The policy contains a chart listing the type of coverage in one
column, the associated “covered auto symbol” in the second column,
and the limits of insurance in a third column. For liability coverage, the
correlating auto symbol is “1,” which is described several pages later as
“any auto.” We do not here determine how broadly to interpret the
“any auto” language because the parties agree that it encompasses at
least listed Mid-State fleet vehicles and vehicles owned by Mid-State
employees when used for Mid-State business.
2 For underinsured motorist coverage, the correlating auto symbol
in the policy is “2,” signifying coverage for “Owned ‘Autos’ Only.”
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Mid-State had purchased liability coverage be covered to the same
extent under Mid-State’s underinsured motorist coverage.
II
¶ 5 The Utah code requires “every resident owner of a motor
vehicle” to “maintain owner’s or operator’s security in effect at any
time that the motor vehicle is operated on a highway or on a quasi-
public road or parking area within the state.” UTAH CODE § 41-12a-
301(2)(a). Proof of such security may be provided by a “certificate of
insurance under Section 41-12a-402 or 41-12a-403.” Id. § 41-12a-
401(1)(a). By statute, “[e]very policy of insurance or combination of
policies purchased to satisfy the owner’s or operator’s security
requirement” must include four specific types of insurance: “(a) motor
vehicle liability coverage under Sections 31A-22-303 and 31A-22-304;
(b) uninsured motorist coverage under Section 31A-22-305, unless
affirmatively waived under Subsection 31A-22-305(5); (c) underinsured
motorist coverage under Section 31A-22-305.3, unless affirmatively
waived under Subsection 31A-22-305.3(3); and (d) except as provided in
Subsection (2) and subject to Subsection (4), personal injury protection
under Sections 31A-22-306 through 31A-22-309.” Id. § 31A-22-302(1).
¶ 6 This case concerns the required terms and scope of
underinsured motorist coverage in a policy purchased to satisfy a
vehicle owner’s insurance requirements. The key operative provision is
Utah Code section 31A-22-305.3. Section 305.3 states that
“[u]nderinsured motorist coverage under Subsection 31A-22-302(1)(c)
provides coverage for a covered person who is legally entitled to recover
damages from an owner or operator of an underinsured motor vehicle
because of bodily injury, sickness, disease, or death.” Id. § 31A-22-
305.3(2)(a) (emphasis added). Covered person, in turn, is defined to
include “any person occupying or using a motor vehicle referred to in
the policy.” Id. § 31A-22-305(1)(d); id. § 31A-22-305.3(1)(a). And section
305.3 mandates that “the limits of underinsured motorist coverage shall
be equal to the lesser of the limits of the named insured’s motor vehicle
liability coverage or the maximum underinsured motorist coverage
limits available by the insurer under the named insured’s motor vehicle
policy” unless the named insured signs an acknowledgment electing
“coverage in a lesser amount.” Id. § 31A-22-305.3(3)(b).
¶ 7 The parties offer differing views of the implications of these
provisions. Dircks interprets them to mandate parallelism between
underinsured motorist coverage and liability coverage within the same
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Opinion of the Court
policy—both in terms of the persons and vehicles covered and the
liability limits. And Dircks claims that he is entitled to underinsured
coverage in the underlying case because Mid-State never signed an
acknowledgment limiting its underinsured motorist coverage.
¶ 8 Travelers offers two grounds for rejecting Dircks’ approach.
First it says that section 305.3 does not apply to vehicles that Mid-State
had no statutory obligation to insure (like those not owned by Mid-
State). And second Travelers asserts that the Mid-State policy properly
excludes the unowned vehicles in question from coverage for
underinsured motorist purposes.
¶ 9 We reject both of Travelers’ arguments and generally agree
with Dircks’ conception of the statutory scheme.
A
¶ 10 Travelers first seeks to avoid any application of section 305.3
to vehicles not owned by Mid-State. It notes that this provision is
addressed to “[u]nderinsured motorist coverage under Subsection 31A-
22-302(1)(c).” UTAH CODE § 31A-22-305.3(2)(a) (emphasis added). And it
indicates that section 302, in turn, speaks of insurance “purchased to
satisfy the owner’s or operator’s security requirement of Section 41-12a-
301.” Id. § 31A-22-302(1).
¶ 11 Travelers emphasizes that Mid-State did not own Riley’s
vehicle. And it insists that it accordingly had no obligation to insure
that vehicle under section 302. In Travelers’ view, it follows that section
305.3 does not apply to the underinsured motorist provisions of the
Mid-State policy because those provisions were not “purchased to
satisfy” a statutory “security requirement” under section 302.
¶ 12 We disagree. Travelers’ threshold point is correct. Mid-State
had no legal duty to purchase any insurance for unowned vehicles.3
But it does not follow that section 305.3 does not apply to the insurance
policy in question. Section 305.3 applies to any “policy . . . purchased to
satisfy the owner’s or operator’s security requirement.” Id. § 31A-22-
3 See UTAH CODE § 41-12a-301(2)(a) (stating that “every resident
owner of a motor vehicle shall maintain owner’s or operator’s security
in effect at any time that the motor vehicle is operated on a highway or
on a quasi-public road or parking area within the state”) (emphasis
added).
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302(1) (emphasis added). And the applicability of section 305.3
accordingly turns entirely on the scope of the term policy in section 302.
For Travelers to succeed, we must read the term narrowly to
encompass only the specific insurance coverage in a policy that is
purchased to satisfy the security obligation. But there is nothing in the
text that indicates the statute applies only to those portions of a policy.
¶ 13 A “policy” is “[a] document containing a contract of
insurance.” Policy, BLACK’S LAW DICTIONARY (9th ed. 2009). And the
insurance document at issue in this case is clearly identified as a single
policy. It is labeled with a single policy number throughout.4 There is
even a section in the document that allows the insurance provider to
list “supplemental policies,” which are each “a separate policy
containing its complete provisions.” (Emphasis added). But that section
was left entirely blank.
¶ 14 That indicates that the Travelers policy in question was a
“policy . . . purchased to satisfy the owner’s or operator’s security
requirement.” UTAH CODE § 31A-22-302(1). And that conclusion defeats
Travelers’ first argument. For that reason we conclude that section
305.3 applies to the entire insurance document understood as a “policy”
even if some of the provisions in the policy were not themselves
purchased to satisfy the insured’s statutory security requirement.
¶ 15 In so holding we also reject the dissent’s contrary arguments.
First, we see nothing “senseless” about the statutory scheme as
interpreted herein. See infra ¶ 40. This statutory framework promotes
transparency. It does so by requiring insurers to offer either two
separate insurance policies (one that satisfies the insurance
requirements and an additional policy for excess insurance) or a single
policy that includes an acknowledgement that excess coverage within
the policy does not get the full benefits of the insurance code. That
provides clarity for policyholders. And it protects consumers from
being misled or confused by insurance companies—who stand in a
position of great power because consumers have no choice but to come
to them to purchase a policy to satisfy the requirements articulated in
section 41-12a-301.
4 The insurance contract identifies the document as “A Custom
Insurance Policy Prepared for: Mid-State Consultants Inc.”
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Opinion of the Court
¶ 16 Perhaps it is true that “sophisticated consumers” are those
most likely to be protected by the statute as structured. See infra ¶ 51.
But we see no reason to deem such consumers to fall beyond the
legislature’s reach. Even sophisticated consumers are at the mercy of
insurance providers. And these consumers—like insurance companies
themselves—are entitled to a fair construction of our statutory scheme.
¶ 17 Second, unlike the dissent we do not find ambiguity in the
terms of the statute. Justice Himonas asserts that the reference to a
“policy or combination of policies purchased to satisfy the owner’s or
operator’s security requirement,” UTAH CODE § 31A-22-302, could be
understood to mean either of two things: (a) a “policy or combination
of policies [in whole or in part] purchased to satisfy the owner’s or
operator’s security requirement”; or (b) a “policy or combination of
policies [to the extent they are] purchased to satisfy the owner’s or
operator’s security requirement.” Infra ¶ 48. And the dissent insists that
either of these readings would add a “substantive term[]” to the statute.
Infra ¶ 50.
¶ 18 But that is not correct. The “in whole or in part” formulation
doesn’t add a substantive term. It reinforces the plain language of the
statute. A policy that is purchased “in part” to satisfy an owner’s or
operator’s security requirement is one that is “purchased to satisfy” the
security requirement. The same goes for a policy that is purchased “in
whole” to do so. The “purchased to satisfy” modifier, in other words,
encompasses any and all policies that are purchased even in part to
satisfy the security requirement.
¶ 19 This is not “ipse dixit.” See infra ¶ 45. It is a conclusion that
follows from the natural meaning of the statutory text as we
understand it. Section 302 regulates at the “policy” level (not the
insurance coverage level).5 And it applies to any “policy . . . purchased
to satisfy the owner’s or operator’s security requirement.” UTAH CODE
§ 31A-22-302 (emphasis added). The operative question, then, is
whether the particular policy in question is one that was “purchased to
5 Justice Himonas correctly notes that section 302 “regulates at the
level of any ‘policy or combination of policies.’” Infra ¶ 48. But this is
still not the regulation of insurance coverage but of policies. And the
extension to the plural—policies—is of no use to the dissent (or to
Travelers) in any event because Mid-State purchased a single policy
and not a combination of policies.
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satisfy” the statutory requirement. This is a binary question. Either the
policy was purchased to satisfy a security requirement or it was not.
And we see no way to classify a policy that is necessary to satisfy
statutory security requirements as one that was not purchased to satisfy
those requirements. The fact that the policy does more than just satisfy
those requirements does not mean that it was not “purchased to satisfy
the owner’s or operator’s security requirement.” It just means that it
was also purchased for other reasons.6
¶ 20 That conclusion is reinforced by our analysis in Arredondo v.
Avis Rent A Car System, Inc., 2001 UT 29, 24 P.3d 928. In Arredondo we
interpreted parallel language in Utah Code section 31A-22-302, which
required “personal injury protection” for “[e]very policy of insurance
. . . purchased to satisfy the owner’s or operator’s security requirement
of Section 41-12a-301.” Id. ¶ 9. The question in Arredondo was whether
this provision was limited only to the “primary” policy expressly
fulfilling statutory security requirements or also applied to a separate
policy providing “excess” or “additional” coverage. Id. ¶ 16. We held
that “excess” or “additional” coverage policies were not properly
understood as “purchased to satisfy” statutory security requirements—
only “primary” policies counted. Id. And we based that holding on an
inquiry into whether the policy was necessary to fulfill the statutory
requirements.
¶ 21 Under Arredondo a “primary” policy is understood as being
“purchased to satisfy” statutory security requirements because the
policy is “designed to meet the statutory security requirement.” Id.
¶ 15. An “excess” policy, on the other hand, is not “purchased to
satisfy” the statute because it is “unnecessary” to fulfill “those
requirements.” Id. ¶ 16. The key question, then, is whether the policy in
question is “necessary” to fulfill the requirements of the statute. If a
policy is necessary to meet the requirements of the code then it was
6 The dissent’s cited cases are distinguishable on this basis. Some
statutory references to “purpose” may well leave an ambiguity as to the
scope of this term. See infra ¶ 46 n.11. But section 302 does not speak of
“purpose” in so many words; and it leaves no ambiguity as to its
operative terms: A policy that is necessary to satisfy statutory security
requirements was surely “purchased” to satisfy those requirements—
even if it was also “purchased” to fulfill other needs.
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Opinion of the Court
purchased to satisfy those legal requirements. If not, the policy was not
purchased to satisfy the statute.
¶ 22 That forecloses the dissent’s alternative reading of the statute.
The policy in question is one that was “purchased to satisfy” statutory
security requirements because it was necessary to satisfy those
requirements. The policy, moreover, did not cease to be “purchased to
satisfy” the statutory requirements merely because it also furthered
other purposes.
¶ 23 For that reason the dissent’s first formulation does not add a
substantive term to the statute. A policy that is necessary to fulfill
statutory security requirements is already understood to have been
“purchased to satisfy” those requirements—the “in whole or in part”
qualifier is unnecessary. The dissent’s second formulation does add a
substantive term, however. There is no way to read the statutory text,
without more, to apply only “to the extent” that a policy is purchased
to satisfy statutory security requirements. And we reject the dissent’s
approach on that basis—reiterating our reluctance to infer substantive
terms that are not set forth on the face of a statute.
B
¶ 24 Travelers’ second argument accepts the general applicability
of section 305.3 but claims that the unowned vehicles in question were
properly excluded from underinsured motorist coverage in this policy.
In Travelers’ view, a vehicle is eligible for underinsured motorist
coverage only if it is referred to in the underinsured motorist provisions of
an insurance policy. Because the underinsured motorist provisions of
its policy do not refer to employee-owned vehicles (but only Mid-State-
owned fleet vehicles), Travelers says that persons who use or occupy
those vehicles are not eligible for underinsured motorist coverage
under the policy.
¶ 25 Again we disagree. By statute any person occupying or using
a motor vehicle “referred to in the [automobile insurance] policy” is a
“covered person” for underinsured motorist purposes. UTAH CODE
§ 31A-22-305(1)(d)(i); id. § 31A-22-305.3(1)(a);. There is no question,
moreover, that the vehicle in question is “referred to” in the Travelers
“policy”—in the portions of the policy providing for liability coverage.
And that is sufficient to trigger the coverage terms of section 305.3.
¶ 26 Section 305.3 sweeps broadly. It regulates underinsured
motorist coverage for any vehicle “referred to in the policy.” Id. § 31A-
22-305(1)(d)(i) (emphasis added); id. § 31A-22-305.3(1)(a). And there is
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no question that unowned vehicles are referred to in the Travelers
policy. See supra ¶¶ 11–14 (noting that “policy” means the entire
insurance document).
¶ 27 The reference to unowned vehicles, granted, is not in the
underinsured motorist coverage provisions of the policy. But coverage
for purposes of section 305.3 is triggered by a reference in the policy.
And we would be altering the statutory terms of coverage if we read
that to require a reference in the underinsured motorist provisions of the
policy. See Arredondo, 2001 UT 29, ¶ 12 (refusing to read “substantive
terms into the text that are not already there”) (citation omitted).
¶ 28 That conclusion is reinforced by a distinction between the
statutory coverage provisions for the two types of insurance at issue
(underinsured motorist coverage and liability coverage). Underinsured
motorist coverage, as noted, extends to any person occupying or using
a vehicle “referred to in the policy.” UTAH CODE § 31A-22-305(1)(d)(i);
id. § 31A-22-305.3(1)(a). Yet liability coverage is different. By statute, “a
policy of motor vehicle liability coverage under Subsection 31A-22-
302(1)(a)” must “designate by appropriate reference all the motor
vehicles on which [liability] coverage is granted.” Id. § 31A-22-
303(1)(a)(ii)(A). Thus, liability insurance extends only to vehicles
“designate[d]” for liability “coverage,” id., while underinsured motorist
insurance extends to any vehicle “referred to in the policy,” id. § 31A-
22-305.3(1)(a). And we cannot ignore the difference in statutory
coverage terms.
¶ 29 Where two statutory provisions regulate the same subject
matter but use different language, the implication is that the language
difference is material. ANTONIN SCALIA & BRYAN A GARNER, READING
LAW: THE INTERPRETATION OF LEGAL TEXTS 170 (2012) (“[A] material
variation in terms suggests a variation in meaning.”). That canon
defeats Travelers’ argument. The code requires an express
“designat[ion]” of a vehicle meant for liability coverage, UTAH CODE
§ 31A-22-303(1)(a)(ii)(A), but imposes no such requirement for
underinsured motorist coverage. From that we can infer that there is no
requirement of express designation of a vehicle for underinsured
motorist purposes.
¶ 30 For these reasons we read section 305.3 to call for
underinsured motorist coverage for any person occupying or using a
vehicle “referred to” in the policy—even if that vehicle is not expressly
designated as subject to underinsured motorist coverage. Under our
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DIRCKS v. TRAVELERS
Opinion of the Court
reading of the statute, a person using or occupying a vehicle covered by
the liability provisions of a policy is also entitled to underinsured
motorist coverage.7 And she is entitled to equal limits for both types of
coverage unless she signs a formal acknowledgment waiving that right.
Id. § 31A-22-305.3(3)(b) (“[T]he limits of underinsured motorist
coverage shall be equal to . . . the limits of the named insured’s motor
vehicle liability coverage . . . unless a named insured rejects or
purchases coverage in a lesser amount by signing an acknowledgment
form.”).
III
¶ 31 For the above reasons we answer the certified question in the
affirmative. We conclude that any vehicle—whether owned by the
policyholder or not—that is covered by a policy’s liability insurance is
also subject to underinsured motorist coverage under section 305.3.
Thus, we hold that section 305.3 requires that any person occupying or
using such a vehicle must also be covered by underinsured motorist
insurance (and to the same policy limits) unless the coverage is waived
by a formal acknowledgment.
7 This is not to say that the terms of liability coverage will be
identical to the terms of underinsured motorist coverage. Liability
coverage extends universally to the named insured driving any vehicle.
UTAH CODE § 31A-22-303(1)(a). Yet section 305.3 forbids underinsured
motorist coverage for a named insured who is “occupying or using a
motor vehicle owned, leased, or furnished” to the insured, unless “the
motor vehicle is described in the policy under which a claim is made.”
Id.. § 31A-22-305.3(2)(b). So where a named insured owns two vehicles
and purchases insurance to satisfy her security requirements for just
one of those vehicles, she would be entitled to liability coverage under
the policy if she were to cause an accident while driving the second
(unlisted) vehicle. But she would not be entitled to underinsured
motorist coverage if, while using the second vehicle, she were injured
by another driver. In that sense, a person may be covered by an
automobile insurance policy for liability purposes but not for
underinsured motorist purposes.
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HIMONAS, J., dissenting
JUSTICE HIMONAS, dissenting:
INTRODUCTION
¶ 32 The legislature has established a comprehensive statutory
framework requiring every car on the road to be adequately insured.
To accomplish the end of insuring every car, the statutory provisions
require vehicle owners to maintain automobile insurance on the cars
they own. See UTAH CODE § 41-12a-301(2)(a) (“[E]very resident owner
of a motor vehicle shall maintain owner’s or operator’s security in effect
at any time that the motor vehicle is operated on a highway or on a
quasi-public road or parking area within the state[.]”). And to make
sure that every car is adequately insured, it provides for default
coverage—some of it (such as liability insurance) mandatory and some
of it (such as underinsured motorist coverage) waivable—that must be
included in any insurance “policy . . . purchased to satisfy the owner’s
or operator’s security requirement.” Id. § 31A-22-302(1). Of particular
relevance to this case, the legislature has provided that when a vehicle
owner purchases liability insurance with a particular policy limit, the
vehicle owner’s automobile insurance policy will, by operation of law,
also include the same dollar amount of underinsured motorist
insurance unless the purchaser takes affirmative steps to validly waive
that coverage. Id. § 31A-22-305.3(3)(b).
¶ 33 The members of this court all agree that when you purchase
an insurance policy for vehicles you own—i.e., when you purchase a
policy “to satisfy the owner’s or operator’s security requirement”—that
insurance must comply with the default coverage requirements
contained in chapter 22 of title 31A of the automobile insurance code.
Id. § 31A-22-302(1) (setting forth the coverage requirements for “[e]very
policy of insurance or combination of policies purchased to satisfy the
owner’s or operator’s security requirement”). And the court is also of
one mind that if you purchase an automobile insurance policy only for
vehicles you do not own, that insurance need not comply with the
automobile insurance law’s default coverage requirements. See
Arredondo v. Avis Rent A Car Sys., Inc., 2001 UT 29, ¶ 14, 24 P.3d 928(“Whether a policy or combination of policies was ‘purchased to satisfy
the owner’s or operator’s security requirement’ . . . hinges not on
whether it actually satisfies the statutory security requirement, but
rather whether it was purchased for the purpose of satisfying the statutory
security requirement.” (emphases in original) (citation omitted)).
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HIMONAS, J., dissenting
¶ 34 This appeal presents a middle case: What happens if you are
one of those few insurance purchasers who purchase insurance for
vehicles you own and at the same time, and in the same policy document,
also purchase insurance for certain vehicles you do not own (vehicles
that, because they are owned by somebody else, must already have
basic insurance)? These insurance purchasers will almost invariably be
sophisticated businesses purchasing liability insurance on additional
vehicles in order to minimize their vicarious liability. But the majority
thinks this is the anomalous circumstance in which the automobile
insurance law’s default coverage requirements apply to insurance
policies purchased for vehicles not owned by the purchaser. Because
this contravenes the relevant statutory provisions and makes no sense, I
respectfully dissent.
BACKGROUND
¶ 35 On November 30, 2011, The Travelers Indemnity Company of
America issued automobile insurance to Mid-State Consultants, Inc. so
that Mid-State could “satisfy [its] owner’s or operator’s security
requirement” for company-owned vehicles. UTAH CODE § 31A-22-
302(1). In addition to this owner’s insurance, however, Travelers also
sold Mid-State liability insurance for certain vehicles it did not own—
personal vehicles of its employees when those vehicles were being used
for company business. The policy Mid-State purchased for its own
vehicles included (1) $1 million of liability coverage and (2) $1 million
of underinsured motorist coverage. But the policy Mid-State purchased
for employee-owned vehicles—a policy that came in the form of an
“endorsement” to the policy for Mid-State’s own vehicles—only
provided $1 million liability coverage for employee-owned vehicles.
Mid-State did not purchase underinsured motorist coverage for the
employee-owned vehicles.
¶ 36 After Derek Dircks was injured, he filed an underinsured-
motorist claim with Travelers contending that, because Mid-State did
not waive underinsured motorist coverage for employee-owned cars,
Mid-State’s policy included that coverage by operation of law. The
majority agrees. It acknowledges that Mid-State “had no legal duty to
purchase any insurance for unowned vehicles.” Supra ¶ 12. And it does
not dispute that, if Mid-State had purchased insurance for unowned
vehicles in a separate policy document from the document containing
insurance for the vehicles it did own, Utah Code section 31A-22-305.3
would not apply to that insurance. It nonetheless concludes that section
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HIMONAS, J., dissenting
305.3 applies to the endorsement Mid-State purchased to cover
employee-owned cars.
¶ 37 The majority hangs its hat on the word “policy” in Utah Code
section 31A-22-302. According to section 302, the majority reasons,
section 305.3 applies to any “policy . . . purchased to satisfy the owner’s
or operator’s security requirement.” Supra ¶ 12 (emphasis in original)
(quoting UTAH CODE § 31A-22-302(1)). And when Mid-State purchased
insurance for both company-owned and employee-owned cars, it
purchased that insurance in a single “insurance document”—one that
was “labeled with a single policy number throughout.” Supra ¶ 13 (“A
‘policy’ is ‘[a] document containing a contract of insurance.’” (alteration
in original) (quoting policy, BLACK’S LAW DICTIONARY (9th ed. 2009))).
Accordingly, the insurance for both the company-owned cars and the
employee-owned cars was part of the same “policy . . . purchased to
satisfy the owner’s or operator’s security requirement.” Supra ¶ 14
(quoting UTAH CODE § 31A-22-302(1)). To be sure, only the company-
owned car insurance was actually “purchased to satisfy the owner’s or
operator’s security requirement.” But they were both in that same
“policy.” Per the majority, section 305.3 therefore applied to the
insurance for both company-owned cars and the employee-owned cars.
Supra ¶ 14. And section 305.3 provides that the employee-owned car
insurance must include underinsured motorist coverage unless Mid-
State validly waived that coverage—which it did not do. The fly in the
majority’s ointment is that its interpretation of “policy” does not square
with a cohesive reading of all of the relevant provisions of our
automobile insurance law.
ANALYSIS
¶ 38 The point of our “owner’s or operator’s” vehicle insurance
law is to make sure that every car on the road is adequately insured. To
this end, it requires all automobile insurance owners to maintain
“owner’s or operator’s security” on their automobiles. UTAH CODE § 41-
12a-301(2)(a). It then sets forth some mandatory and default coverage
provisions that must be included in all policies “purchased to satisfy
the owner’s or operator’s security requirement” in this state. Id. § 31A-
22-302(1). Sections 31A-22-303 and 304 state the required liability
coverage contents and limits for a policy of motor vehicle liability
coverage purchased to satisfy the owner’s or operator’s security
requirement; section 305 sets forth the default uninsured motorist
coverage terms that a policy purchased to satisfy the owner’s or
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HIMONAS, J., dissenting
operator’s security requirement must include (unless waived); and
section 305.3 sets forth the default underinsured motorist coverage
terms that owner’s or operator’s insurance must contain (again, unless
waived). I read this scheme to prescribe terms only for insurance you
purchase on cars that you own. When you buy coverage for cars you do
not own, the law governing terms for “owner’s or operator’s” insurance
does not apply.
¶ 39 The majority rejects this reading. It concludes that when a
company purchases insurance both to satisfy its “owner’s or operator’s
security requirement” and to provide some coverage for employee-
owned vehicles, whether the “owner’s or operator’s” insurance law
prescribes terms of coverage for employee-owned vehicles depends on
whether that insurance is included in a document with the same
“policy number” as the document providing insurance for the
company-owned cars. Supra ¶ 13.
¶ 40 I cannot countenance this interpretation. As counsel for the
Dirckses admitted at oral argument, the majority’s position means that
whether Mid-State needs to affirmatively waive underinsured motorist
coverage turns entirely on how Travelers chooses to label its policy
documents. According to the majority’s view, because Mid-State
purchased insurance for company-owned and employee-owned cars in
a document labeled with a single policy number, Mid-State needed to
affirmatively waive underinsured motorist coverage. But had Mid-State
gone to Travelers and purchased the same exact insurance contracts,
except with the “endorsement” for employee-owned cars relabeled a
“policy,” the majority would conclude that it did not need to
affirmatively waive underinsured motorist coverage. This contravenes
the whole thrust of the statutory scheme—which is concerned not with
regulating the labels an insurance company affixes to its policy
documents, but rather with getting vehicle owners to adequately insure
their cars. The majority’s view does not even serve a general consumer
protection purpose—such as protecting those insurance purchasers
who buy two different kinds of automobile insurance at the same
time—because insurance companies can circumvent the protections
simply by relabeling a single form from an “endorsement” to a
“policy.” This is a task they could conceivably accomplish by simply
assigning different policy numbers to different documents. It borders
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HIMONAS, J., dissenting
on the senseless to let the outcome in this case be determined by how
Travelers labeled its insurance instruments.8
¶ 41 I also reject the majority’s interpretation because it seeds
analytical confusion. Picture this: Mid-State buys liability coverage with
$1 million limits for company-owned vehicles and with $500,000 limits
for employee-owned vehicles. Then there would be two liability
coverage limits in the same policy document. Under the majority’s
interpretation, to which one of these should we refer in determining the
underinsured motorist coverage limits on employee-owned vehicles?
The liability coverage policy with $500,000 limits—i.e., the one that, by
the terms of the policy document, covers employee-owned vehicles?
But that would mean that a set of statutes that only refers to liability
coverage purchased to satisfy the owner’s or operator’s security
requirement would ignore that liability coverage (i.e., the $1 million
limit coverage), and their operation would instead turn on liability
coverage of a kind that the automobile insurance statutes never
mention or purport to govern. But if we were to decide that the $1
million liability coverage set the default limits for underinsured
motorist coverage for employee-owned vehicles, then we would have
to hold that the inclusion of liability coverage for employee-owned
vehicles with $500,000 limits magically operates to cause different
liability coverage that is concerned with a completely different set of
cars to dictate the limits of underinsured motorist coverage on those
8 The majority’s response to this analysis is that the statute will
“promote[] transparency” by “requiring insurers to offer either two
separate insurance policies (one that satisfies the insurance
requirements and an additional policy for excess insurance) or a single
policy that includes an acknowledgment that excess coverage within
the policy does not get the full benefits of the insurance code.” Supra ¶
15. But this is simply to restate a point I have just given reasons for
rejecting. My conclusion remains untouched: where the distinction
between “two separate insurance policies” and “a single policy” could
be as subtle as the distinction between a document labeled (say) “BA-
7511L495-12-GRP” and one labeled “BA-7511I495-12-GRP,” the
requirement that the majority reads into the statute will do little to
promote transparency.
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DIRCKS v. TRAVELERS
HIMONAS, J., dissenting
vehicles to which the $500,000 policy applies. Which is, if anything,
even more outlandish.
¶ 42 The majority’s opinion relies, in significant part, on the notion
that when a particular statutory provision speaks clearly, we may not
read “substantive terms into the text that are not already there.” Supra
¶¶ 23, 27 (quoting Arredondo v. Avis Rent A Car Sys., Inc., 2001 UT 29, ¶
12, 24 P.3d 928). And it concludes that here we have a statute that could
not be clearer: under Utah Code section 31A-22-302, section 305.3
applies to any policy purchased to satisfy the owner’s or operator’s
security requirement—and it applies even “to those portions of a policy”
that are entirely unrelated to the purpose of “satisfy[ing] the security
obligation.” Supra ¶ 12. When—as here—owner’s or operator’s
insurance is in the same policy as insurance for unowned cars, section
305.3 therefore applies to the entire policy—no matter that the result
distorts the statutory scheme and confuses the law.
¶ 43 I share the majority’s general impulse against reading
“substantive terms into the text that are not already there.” Supra ¶ 27
(quoting Arredondo, 2001 UT 29, ¶ 12). I am concerned, however, that
neither the Arredondo canon nor a wooden reliance on legal dictionaries
helps solve the statutory problem in this case. Here, the legislature has
told us that any policy “purchased to satisfy the owner’s or operator’s
security requirement”—that is, any policy “purchased for the purpose of
satisfying the statutory security requirement,” Arredondo, 2001 UT 29, ¶
14 (emphasis in original)—must include certain terms. UTAH CODE §
31A-22-302(1). And, by negative implication, it has told us that a policy
need not include those provisions when it is not purchased for the
purpose of satisfying the owner’s or operator’s security requirement.
See Masich v. U.S. Smelting, Ref. & Mining Co., 191 P.2d 612, 622 (Utah
1948) (“[B]y making compensation payable only in the event of total
disability, [our law] clearly indicates an intent on the part of the
legislature not to make compensation payable for partial disability.”).
But it has not told us what to do with a policy purchased in part “to
satisfy the owner’s or operator’s security requirement,” even though,
sometimes, it tells us exactly how to classify something done in part to
accomplish one goal and in part another. See UTAH CODE § 13-41-102(7)
(“‘Service’ means any activity that is performed in whole or in part for
the purpose of financial gain[.]”); see also id. § 20A-11-1501(1) (“‘Labor
organization’ means a lawful organization of any kind that . . . exists for
the purpose, in whole or in part, of dealing with employers concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
or other terms and conditions of employment.”); id. § 4-5-103(1)(c) (“A
16
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HIMONAS, J., dissenting
food is adulterated . . . if it consists in whole or in part of a diseased,
contaminated, filthy, putrid, or decomposed substance, or if it is
otherwise unfit for food[.]”).
¶ 44 Indeed, on a proper understanding of the interpretive
problem this case presents, the canon cautioning against reading
“substantive terms into the text that are not already there” is
inapposite. Arredondo, 2001 UT 29, ¶ 12 (citation omitted). It does not
solve the real interpretive problem before us. Nor does a plain meaning
analysis of the word “policy.” Cf. supra ¶¶ 12–14. The interpretive
problem before us is not what a “policy” is. The problem is whether
section 305.3 applies to a policy (or combination of policies) that is
purchased in part to satisfy the owner’s or operator’s security
requirement and in part for a different purpose—insuring employee-
owned cars. The statutory language does not precisely speak to this
issue. It says only that section 305.3 applies to any “policy of insurance
or combination of policies purchased to satisfy the owner’s or
operator’s security requirement.” UTAH CODE § 31A-22-302(1). To reach
the majority’s result—that section 305.3 applies to a policy purchased in
part to satisfy Mid-State’s owner’s or operator’s security requirement
and in part to cover employee-owned cars—we must conclude that
section 302 applies section 305.3 to any “policy . . . or combination of
policies purchased [in whole or in part] to satisfy the owner’s or
operator’s security requirement.” Id. This is, to be sure, one possible
resolution of the statute’s imprecision. But it is not the only possible
resolution. Another possibility—the one I favor—holds that section 302
applies section 305.3 to any “policy . . . or combination of policies [to the
extent they are] purchased to satisfy the owner’s or operator’s security
requirement.” Id.
¶ 45 In a paragraph of ipse dixit, the majority denies that the
imprecision I have identified exists. According to the majority, these
two sentences are equivalent: (1) “The statute applies to a policy or
combination of policies purchased to satisfy the owner’s or operator’s
security requirement” and (2) ”The statute applies to a policy or
combination of policies purchased in whole or in part to satisfy the
owner’s or operator’s security requirement.” Supra ¶ 18. In the
majority’s view, “[a] policy that is purchased ‘in part’ to satisfy an
owner’s or operator’s security requirement is one that is ‘purchased to
17
DIRCKS v. TRAVELERS
HIMONAS, J., dissenting
satisfy’ the security requirement. The same goes for a policy that is
purchased ‘in whole’ to do so.” Supra ¶ 18.9
¶ 46 Of course, when a majority invokes the venerable Draughon-
Dumpty doctrine—baldly declaring that an interpretation is beyond the
linguistic pale—there is little the losing side can do.10 I note, however,
that many other courts would not have invoked that doctrine in this
case.11 If some of Utah sees no ambiguity and the rest of Utah (along
9 The majority tells us that “[t]his is not ipse dixit,” but is, instead, “a
conclusion that follows from the natural meaning of the statutory text
as we understand it.” Supra ¶ 19. There is little distinction, and even
less difference, between “it means x because I say so” and “x is its
natural meaning as I understand it.” “The majority deems its
construction ‘natural’ . . . [b]ut that is just the majority judges’ intuition
speaking.” Oliver v. Utah Labor Comm’n, 2017 UT 39, ¶ 68, —P.3d—
(Lee, A.C.J., concurring in the judgment) (citation omitted).
10 See Draughon v. Dep’t of Fin. Insts, 1999 UT App 42, ¶ 11 n.4, 975
P.2d 935 (“‘When I use a word,’ Humpty Dumpty said in a rather
scornful tone, ‘it means just what I choose it to mean—nothing more
nor less.’ ‘The question is,’ said Alice, ‘whether you can make words
mean different things.’ ‘The question is,’ said Humpty Dumpty, ‘which
is to be master—that’s all.’” (quoting LEWIS CARROLL, THROUGH THE
LOOKING GLASS AND WHAT ALICE FOUND THERE 123 (1941))).
11 Many courts think “the purpose” is ambiguous between, for
example, “the primary purpose” or “the sole purpose” or simply “a
purpose”—an ambiguity that simply does not exist if “purchased for
the purpose of satisfying the owner’s or operator’s security
requirement” is equivalent to “purchased in whole or in part” for that
purpose. See, e.g., United States v. LaRouche Campaign, 695 F. Supp. 1265,
1272 (D. Mass. 1988) (Keeton, J.) (“If a statute is interpreted as requiring
proof of purpose . . . that an act contribute to bringing about a defined
event, a[n] . . . ambiguity remains. Does ‘purpose’ mean ‘sole purpose,’
or ‘primary purpose,’ or instead is the ‘purpose’ element satisfied if . . .
[the purpose is] included as at least one of the . . . purposes (even if not
the primary or dominant one) . . . ?”); Waldie v. Schlesinger, 509 F.2d 508,
510 n.1 (D.C. Cir. 1974) (“[W]hen affiants declare that the purpose of the
Academies is to prepare men for combat, it is unclear whether they
mean it is the sole purpose, the primary purpose, or merely a purpose.
Plaintiffs’ case hangs on resolution of such ambiguities, and plaintiffs
(cont.)
18
Cite as: 2017 UT
HIMONAS, J., dissenting
with Massachusetts, D.C. and Nevada) think otherwise, that
disagreement itself is strong evidence that the ambiguity exists.
¶ 47 The majority has a couple of responses. First, it insists that
there is no ambiguity because “[s]ection 302 regulates at the ‘policy’
level (not the insurance coverage level).” Supra ¶ 19. Thus, the majority
argues, when a policy contains terms that are “necessary to satisfy the
statutory security requirements,” section 302 must apply to the entire
policy. Supra ¶ 19.
¶ 48 This is not correct. Section 302 does not regulate at the “policy
level”; it regulates at the level of any “policy or combination of policies
purchased to satisfy the owner’s or operator’s security requirement.”
That is, therefore, the phrase we are tasked with interpreting. And to
interpret that phrase, we need to ask ourselves which of the following
two constructions makes better sense of our automobile insurance law:
(1) section 302 regulates any policy or combination of policies
purchased in whole or in part to satisfy the owner’s or operator’s security
requirement or (2) section 302 regulates any policy or combination of
policies to the extent purchased to satisfy the owner’s or operator’s
security requirement.
¶ 49 Second, the majority suggests that Arredondo, 2001 UT 29,
“forecloses [my] alternative reading of the statute.” Supra ¶ 22; see also
supra ¶¶ 20-21. I cannot for the life of me see how. In Arredondo, we
explained that whether a policy or combination of policies was
purchased to satisfy the owner’s or operator’s security requirement
depends on the purpose for which the policy or combination of policies
should have the opportunity to resolve them in court.”); Nev. Tax
Comm’n v. Nev. Cement Co., 36 P.3d 418, 422 (Nev. 2001) (“NRS 372.050’s
language, defining a taxable ‘retail sale’ as a sale of property for any
purpose other than resale, could suggest a primary-purpose test as well
a sole-purpose test. Similarly, NRS 372.080, exempting from taxation
the keeping, retaining, or exercising power over property for the purpose
of being processed, fabricated or manufactured into, attached to, or
incorporated into, other tangible personal property, could suggest a
sole-purpose test, a primary-purpose test, or a physical-ingredient test.
Thus, these statutes are ambiguous, and we look to the legislature’s
intent, and construe them in line with what reason and public policy
indicate.” (emphases in original)).
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DIRCKS v. TRAVELERS
HIMONAS, J., dissenting
was purchased, and that the automobile insurance law only operates to
imply terms for policies purchased for the purpose of obtaining
owner’s or operator’s security. See Arredondo, 2001 UT 29, ¶ 14
(“Whether a policy or combination of policies was ‘purchased to satisfy
the owner’s or operator’s security requirement of [s]ection 41-12a-301’
hinges not on whether it actually satisfies the statutory security
requirement, but rather whether it was purchased for the purpose of
satisfying the statutory security requirement.”(citation omitted)). This
case presents a related scenario: Mid-State purchased (1) a policy that
satisfied its owner’s or operator’s security requirement and (2) an
endorsement that has a separate purpose—providing liability coverage
for certain vehicles Mid-State did not own. Arredondo tells us to focus
on the purpose of these instruments. To the extent their purpose is to
satisfy the owner’s or operator’s security requirement, Arredondo tells
us that section 302 applies section 305.3 to them. Arredondo does not
directly speak to whether section 302 applies section 305.3 to an
endorsement to a policy whose purpose is not to satisfy the owner’s or
operator’s security requirement, but it is certainly in keeping with
Arredondo’s basic approach to conclude that it does not. Arredondo does
not foreclose my alternative reading.
¶ 50 The upshot of this is that the phrase “section 302 applies
section 305.3 to any ‘policy or combination of policies purchased to
satisfy the owner’s or operator’s security requirement” is, at minimum,
ambiguous between (1) “section 302 applies section 305.3 to any ‘policy
or combination of policies purchased [in whole or in part] to satisfy the
owner’s or operator’s security requirement’” and (2) “section 302
applies section 305.3 to any ‘policy or combination of policies [to the
extent they are] purchased to satisfy the owner’s or operator’s security
requirement.’” Supra ¶¶ 44, 48. Properly framed, therefore, the
interpretive problem is which of these two possible interpretations of
section 302 is better. This question cannot be answered by recourse to
the canon against reading substantive terms into the statutory text
because both possible interpretations necessarily interpolate terms into
that text. Instead, we must recur to the broader “linguistic, structural,
and statutory context” in which this interpretive problem arises. State v.
Rushton, 2017 UT 21, ¶ 11, 395 P.3d 92 (citation omitted).
¶ 51 For the reasons I have explained, I think my interpretation is
the better one. It is supported by the statutory scheme as a whole—a
scheme that is plainly aimed at regulating the contents of owner’s or
operator’s insurance (not insurance on cars you don’t own). See supra ¶
38. It also avoids the mismatch between means and ends to which the
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HIMONAS, J., dissenting
majority’s interpretation gives rise—that is, it does not create a form of
“consumer protection” (1) that applies only to those few, sophisticated
consumers who purchase liability coverage on both their own cars and
other people’s cars at the same time and (2) that the insurance company
can effortlessly circumvent by relabeling its insurance policy
documents. See supra ¶ 40. And, finally, it avoids the analytical
confusion that would flow from the majority’s preferred interpretation.
See supra ¶ 41.
CONCLUSION
¶ 52 I am unpersuaded by the majority’s interpretation. It
misconstrues—and underestimates—the interpretive problem before
us. It grafts ineffectual protections for a small sliver of the most
sophisticated insurance consumers onto a statutory scheme that is
otherwise effective at regulating the insurance that automobile owners
must purchase for their own cars. And it unsettles the law by creating a
situation in which an important legal question—which of two different
liability policy limits should serve as the benchmark for underinsured
motorist coverage limits—has no determinate answer.
¶ 53 I would hold that the automobile insurance laws at issue in
this case govern only the terms of insurance policies purchased to
satisfy the owner’s or operator’s security requirement. Because Mid-
State did not purchase liability insurance on employee-owned cars in
order to satisfy the owner’s or operator’s security requirement, section
305.3 does not apply to that insurance. Mid-State’s Travelers insurance
policy therefore did not include $1 million of underinsured motorist
coverage for employee-owned cars, notwithstanding the fact that Mid-
State did not affirmatively waive that coverage.
21