{ "id": 1449541, "name": "STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Dwight BEAVERS, Nan Beavers, and Carye Beavers", "name_abbreviation": "State Farm Mutual Automobile Insurance v. Beavers", "decision_date": "1995-07-10", "docket_number": "95-32", "first_page": "292", "last_page": "299", "citations": [ { "type": "official", "cite": "321 Ark. 292" }, { "type": "parallel", "cite": "901 S.W.2d 13" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "320 Ark. 177", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1451260 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/320/0177-01" ] }, { "cite": "Ark. Code Ann. \u00a7 23-79-208", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1992, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "312 Ark. 166", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1935117 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/312/0166-01" ] }, { "cite": "319 Ark. 702", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453680 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/319/0702-01" ] }, { "cite": "303 Ark. 116", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882808 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/303/0116-01" ] }, { "cite": "831 S.W.2d 133", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1906040 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/309/0283-02" ] }, { "cite": "309 Ark. 283", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906040, 1906037 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/309/0283-02", "/ark/309/0283-01" ] }, { "cite": "41 Ark. App. 215", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141142 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark-app/41/0215-01" ] }, { "cite": "316 Ark. 345", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907748 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/316/0345-01" ] }, { "cite": "417 N.W.2d 74", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10658873 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nw2d/417/0074-01" ] }, { "cite": "309 Ark. 107", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906049 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/309/0107-01" ] }, { "cite": "396 S.E.2d 28", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 669055 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ga-app/196/0424-01" ] }, { "cite": "370 S.E.2d 85", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 2178302 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/sc/295/0538-01" ] }, { "cite": "423 S.E.2d 530", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "359 N.W.2d 726", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10671826 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nw2d/359/0726-01" ] }, { "cite": "790 P.2d 910", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1990, "opinion_index": 0 }, { "cite": "679 P.2d 99", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 720005 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ariz/139/0453-01" ] }, { "cite": "24 U. Rich. L. Rev. 87", "category": "journals:journal", "reporter": "U. Rich. L. Rev.", "pin_cites": [ { "parenthetical": "Fall 1989" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 23-89-209", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1987, "opinion_index": 0 } ], "analysis": { "cardinality": 667, "char_count": 14099, "ocr_confidence": 0.886, "pagerank": { "raw": 4.2938311110630947e-07, "percentile": 0.9164872160500477 }, "sha256": "2fa37cfcaf8efa6d7ff3da7ba702971f5def928dbe09715779dcbc368ae86147", "simhash": "1:8d63d5a649269a5e", "word_count": 2262 }, "last_updated": "2023-07-14T20:21:00.559388+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Newbern, J., not participating." ], "parties": [ "STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Dwight BEAVERS, Nan Beavers, and Carye Beavers" ], "opinions": [ { "text": "Jack Holt, Jr., Chief Justice.\nThis case involves the interpretation of Arkansas\u2019s underinsured motorist statute. Appellee Carye Beavers, the daughter of appellees Dwight Beavers and Nan Beavers, was a passenger in her parents\u2019 vehicle on January 1, 1991 when it was struck by an uninsured motorist. At the time of the accident, the Beavers\u2019s vehicle was insured in a single policy issued by the appellant, State Farm Mutual Automobile Insurance Company (\u201cState Farm\u201d), under which the Beavers had paid separate premiums for uninsurance coverage up to $25,000, as well as underinsurance coverage up to a like amount.\nAfter having their demand for both uninsured and underinsured coverage rejected, the Beavers filed suit against State Farm, which subsequently moved for partial summary judgment on the grounds that the Beavers were not entitled to underinsured motorist coverage, as the vehicle was struck by an uninsured motorist. The trial court denied the motion, ruling that Arkansas\u2019s under-insurance motorist statute, codified at Ark. Code Ann. \u00a7 23-89-209 (1987), and the case law interpreting the statute, allowed underinsured as well as uninsured motorist coverage to apply, and due to the fact that the Beavers had paid separate premiums for both coverages, the uninsured coverage would exist up to the applicable limit in the event that Carye\u2019s injuries exceeded $25,000, or the limit of the Beavers\u2019s family uninsured coverage.\nThe case proceeded to trial, and, at the close of the Beavers\u2019s case in chief, State Farm moved for directed verdict on the same grounds as previously asserted in its motion for partial summary judgment. The trial court denied the motion. State Farm presented no evidence, and the jury returned a verdict in favor of the Beavers against State Farm in the amount of $700,000. The trial court entered judgment against State Farm for its policy limits in the amount of $25,000 in uninsured motorist coverage, $25,000 in underinsured motorist coverage, a 12 percent penalty, or $6000, $15,000 in attorney\u2019s fees, prejudgment interest calculated at 6 percent from the date of demand, and post-judgment interest of 8.5 percent.\nOn appeal, State Farm claims: (1) that the trial court erred as a matter of law in denying their motion for directed verdict on the issue of underinsured motorist coverage; and (2) that the trial court erred in awarding a penalty and attorney\u2019s fees on the underinsured portion of the judgment. On cross appeal, the Beavers insist that the trial court erred in failing to award them a 12 percent penalty from the date of demand. We reverse and remand, as the trial court erred in refusing to direct a verdict in favor of State Farm on the issue of underinsured motorist coverage.\nI. Underinsured and uninsured motorist coverage\nThe Beavers originally entered into a contract to insure their vehicle with State Farm on May 30, 1990, which provided for both uninsured motorist coverage and underinsured motorist coverage, for which the Beavers paid separate premiums. This contract was renewed on November 30, 1990, with coverage to extend until May 30, 1991.\nInasmuch as the trial court found that the Beavers were entitled to insurance coverage under both its underinsured and uninsured schedules, State Farm asserts as its first allegation of error that the trial court erred in failing to direct a verdict in its favor on the issue of underinsurance motorist coverage, as the vehicle in which Carye Beavers was a passenger on January 1, 1991, was struck by an uninsured, not an underinsured motorist.\nIn analyzing this case of first impression, we subscribe to the method of review suggested in a related law review article that \u201cthe result in almost any stacking problem is best determined by a simple rule: Read the Statute and Read the Policy!\u201d Douglass and Telegadis, Stacking of Uninsured and Under-insured Motorist Vehicle Coverages, 24 U. Rich. L. Rev. 87 (Fall 1989). Accordingly, we examine both the Beavers\u2019s policy and Arkansas\u2019s underinsured motorist statute to reach our conclusions.\nThe policy purchased by the Beavers describes both an uninsured and an underinsured motor vehicle. An uninsured motor vehicle is defined in part as \u201ca land motor vehicle . . . which is not insured or bonded for injury liability at the time of the accident.\u201d Whereas, in contrast, an underinsured motor vehicle is defined as \u201ca land motor vehicle . . . which is insured or bonded for bodily injury liability at the time of the accident; but the limits of liability for bodily injury are less than the amount needed to compensate the insured\u2019s damages.\u201d Moreover, the policy specifically states that an underinsured motor vehicle \u201cdoes not include a land motor vehicle . . . defined as an uninsured motor vehicle in your policy.\u201d\nProfessor Alan I. Widiss, in a recent treatise, discusses this issue as follows:\nMany insurance policies set forth underinsured motorist insurance and uninsured motorist insurance as separate coverages. In some instances, an insured who sustained damages as a result of an accident with an uninsured motorist has sought the coverage afforded by the underinsured motorist insurance as well as the uninsured motorist insurance benefits. Although there are not many appellate court precedents addressing this issue, in virtually all circumstances an injured person will not be able to receive both uninsured motorist benefits and underinsured motorist benefits. Simply put, as defined in the standard coverage terms and as contemplated by legislative requirements, uninsured and underinsured are separate, distinct and mutually exclusive coverages in regard to any single motor vehicle which has been negligently operated.\nAlan I. Widiss, Uninsured and Underinsured Motorist Insurance, \u00a7 35.20, at 195 (2d ed. 1992) (Footnotes omitted). As recognized by Professor Widiss, virtually all states who have addressed this issue have concluded that duplicative recoveries are not permitted. See Evenchik v. State Farm Ins. Co., 679 P.2d 99 (Ariz. App. 1984); National Union Fire Ins. v. Ferreira, 790 P.2d 910 (Haw. 1990); Berg v. Western Nat. Mut. Ins. Co., 359 N.W.2d 726 (Minn. App. 1984); Monti v. United Services Auto Ass\u2019n, 423 S.E.2d 530 (N.C.App. 1992); Fireman\u2019s Ins. Co. v. State Farm Mut., 370 S.E.2d 85 (S.C. 1988). See also Jenkins v. Lanigan, 396 S.E.2d 28 (Ga. App. 1990). We have examined our cases for precedent and find that we have not delved into this particular issue; thus, we give weight to this backdrop of authority furnished by Widiss.\nAs cited by both parties in the present appeal, this court, has, however, recognized the difference between uninsured and underinsured motorist coverage in Clampit v. State Farm Mut. Auto. Ins. Co., 309 Ark. 107, 828 S.W.2d 593 (1992), as follows:\nWe concede the distinction between \u00ab\u00abinsured and underi nsured motorist coverage. Uninsured motorist coverage applies when a tortfeasor either has no insurance or has less than the amount required by law. Coverage is designed to guarantee a minimum recovery equal to that amount. Underi nsured coverage applies when the tortfeasor has at least the amount of insurance required by law, but not enough to fully compensate the victim. This coverage is designed to provide compensation to the extent of the injury, subject to the policy limit. See Kluiter v. State Farm Mutual Automobile Insurance, 417 N.W.2d 74 (Iowa 1987).\nConceivably, there are situations where the difference between uninsured and underinsured motorist coverage could affect recovery . . .\nStated another way, \u201cit is practical and pure common sense that underinsurance should not [apply] until it is determined whether the insured is in fact underinsured.\u201d State Farm Mut. Auto Ins. Co. v. Thomas, 316 Ark. 345, 871 S.W.2d 571 (1994).\nAs mentioned, the policy in question specifically provides that an uninsured motor vehicle \u201cdoes not include a land motor vehicle . . . defined as an underinsured motor vehicle in your policy.\u201d Granted, the fact that the exclusion of an uninsured motor vehicle from the definition of an underinsured motor vehicle may not, standing alone, pass muster in light of the strong public policy against exclusion of coverage. See McGarrah v. Southwestern Glass Co., 41 Ark. App. 215, 852 S.W.2d 328 (1993); Arkansas Farm Bureau Ins. Federation v. Ryman, 309 Ark. 283, 831 S.W.2d 133 (1992); Ark. Blue Cross & Blue Shield v. Long, 303 Ark. 116, 792 S.W.2d 602 (1990). Yet, in following the simple rule of considering this policy\u2019s language, including its definition and exclusions, together with the language of the statute, which clearly refers to the tortfeasor\u2019s insurance coverage, we must conclude that underinsured coverage does not apply when the insured is struck by an uninsured motorist.\nAt the time of the accident, the Arkansas underinsurance motorist statute, codified at Ark. Code Ann. \u00a7 23-89-209 (1987), provided in pertinent part as follows:\n(a) . . . Coverage of the insured pursuant to underinsured motorist coverage shall not be reduced by the tortfeasor\u2019s insurance coverage, except to the extent that the injured party would receive compensation in excess of his damages. (Emphasis added.)\nAs State Farm suggests in its brief, the underinsured motorist statute contemplated that the tortfeasor would in fact have insurance coverage, which would therefore exclude a tortfeasor who is uninsured. Later, Act 1180 of 1993, effective for new policies issued after July 1, 1993, and to existing policies from and after their first renewal on or after January 1, 1994, changed \u00a7 23-89-209, expounding on the definition of underinsured motorist coverage:\n(a)(3) The coverage shall enable the insured or the insured\u2019s legal representative to recover from the insurer the amount of damages for bodily injuries to or death of an insured, which the insured is legally entitled to recover from the owner or operator of another motor vehicle, whenever the liability insurance limits of such other owner or operator are less than the amount of damages incurred by the insured.\n(Emphasis added.) We have long stated that the basic rule of statutory construction is to give effect to the intent of the legislature, and when a statute is clear, it is given its plain meaning. Hercules, Inc. v. Pledger, 319 Ark. 702, 894 S.W.2d 576 (1995). We can look to changes to statutes made by subsequent amendments to determine legislative intent. See American Casualty Co. v. Mason, 312 Ark. 166, 848 S.W.2d 392 (1993). Obviously, both the statute in effect at the time of the accident and its 1993 amendment refer to the \u201cthe tortfeasor\u2019s insurance coverage\u201d and the insurance limits \u201cof such other owner or operator,\u201d respectively. In short, the statute is clear that underinsured motorist coverage is triggered when the tortfeasor\u2019s insurance, not that of the insured, is less than the amount of damages incurred by the insured.\nUnder these circumstances, we hold that the trial court erred in refusing to direct a verdict in State Farm\u2019s favor on the issue of the application of underinsured motorist coverage on the grounds that the policy excluded the definition of an uninsured motor vehicle from an underinsured vehicle, and, in particular, on the plain meaning of the statute in effect at the time of the accident, which clearly referred to \u201cthe tortfeasor\u2019s insurance coverage.\u201d\nII. Penalty and attorney\u2019s fee\nFor its second allegation of error, State Farm asserts that the trial court erred in awarding a penalty and attorney\u2019s fee on the underinsured portion of the judgment, which is an extension of State Farm\u2019s first point on appeal.\nArkansas Code Annotated \u00a7 23-89-208(f) provides for payment of a penalty and attorneys\u2019 fees when the insurer is ordered to pay overdue benefits:\nIn the event the insurer is required to pay the overdue benefits, the insurer shall, in addition to the benefits received, be required to pay the reasonable attorneys\u2019 fees incurred by the other party, plus twelve percent (12%) penalty, plus interest thereon from the date these sums become overdue.\nAs the penalty and attorney\u2019s fees were calculated on the basis of both uninsured and underinsured coverage, we remand so that the 12-percent penalty and attorney\u2019s fees can be recalculated commensurate with the recovery of uninsured benefits only.\nIII. 12-percent penalty\nOn cross-appeal, the Beavers assert that the trial court erred in failing to award them a 12-percent penalty per annum from the date of demand pursuant to Ark. Code Ann. \u00a7 23-79-208(a) (Repl. 1992). The provision provides, in pertinent part, as follows:\nIn all cases, where loss occurs and the . . . insurance company . . . liable therefore shall fail to pay the losses within the time specified in the policy, after demand made therefor, the person, firm, corporation, or association shall be liable to pay the holder of the policy or his assigns, in addition to the amount of the loss, twelve percent (12%) damages upon the amount of the loss, together with all reasonable attorneys\u2019 fees for the prosecution and collection of the loss.\nWhile the Beavers argue that the 12-percent penalty should have been awarded per annum from March 14, 1991, the date they filed their complaint, they concede in their brief that the statute itself speaks of a flat 12-percent damages upon on the amount of the loss, and cite no authority in support of their position that this penalty be awarded per annum. We have stated that, where an appellant cites no authority, nor makes a convincing argument, and where it is not apparent without further research that the point is well taken, we will affirm the decision of the trial court. Quinney v. Pittman, 320 Ark. 177, 895 S.W.2d 538 (1995).\nReversed and remanded on direct appeal and affirmed on cross-appeal.\nNewbern, J., not participating.", "type": "majority", "author": "Jack Holt, Jr., Chief Justice." } ], "attorneys": [ "Boswell, Tucker & Brewster, by: W. Lee Tucker, for appellant.", "Tim A. Womack, Esq., for appellees." ], "corrections": "", "head_matter": "STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Dwight BEAVERS, Nan Beavers, and Carye Beavers\n95-32\n901 S.W.2d 13\nSupreme Court of Arkansas\nOpinion delivered July 10, 1995\nBoswell, Tucker & Brewster, by: W. Lee Tucker, for appellant.\nTim A. Womack, Esq., for appellees." }, "file_name": "0292-01", "first_page_order": 342, "last_page_order": 349 }