Bither v. Country Mutual Insurance Company – 11/30/2010

December 8, 2010

Arizona Court of Appeals Division One Holds That Statutory Beneficiaries Who Are Not an “Insured” on the Applicable Policy May Not Recover Uninsured Motorist Benefits for a Wrongful Death Claim.

A fifteen-year-old girl was a passenger in a vehicle involved in a collision with an uninsured motorist.  She died as a result of the collision.  As a passenger in the vehicle, the girl was listed “insured” under a policy providing uninsured motorist coverage.  The mother of the girl brought an action against the insurer seeking a declaration that the mother and other statutory beneficiaries were entitled to recover uninsured motorist benefits pursuant to Arizona’s wrongful death statute, A.R.S. § 12-612.

 The trial court granted summary judgment in favor of the mother.  The insurer appealed.  The Court of Appeals reversed and directed entry of summary judgment for the insurer. 

Wrongful death claims in Arizona are governed by statute.  Under A.R.S. § 20-259.03, recovery for a wrongful death claim on an uninsured motorist policy “is limited to any party who is qualified to bring a wrongful death action pursuant to § 12-612 and who is also a surviving insured under the same coverages of the policy.”  Because the mother and other statutory beneficiaries did not qualify as an “insured” under the policy, coverage for any wrongful death claim was precluded by § 20-259.03.

Wrongful death actions compensate statutory beneficiaries for damages suffered because of the decedent’s death but do not compensate for injuries suffered by the decedent.  A survival action, in contrast, carries on the decedent’s claims for her injuries.  Although the decedent’s estate could assert a claim for uninsured motorist benefits pursuant to a survival action, the mother’s declaratory action was brought solely on behalf of the wrongful death statutory beneficiaries and not on behalf of the estate.

Finally, the policy itself did not permit the recovery.  The policy provided for uninsured motorist benefits, if the insured is deceased, to the insured’s surviving spouse or to another person authorized by law to receive such payment or to recover damages which the payment represents.  In light of A.R.S. § 20-259.03, however, the wrongful death statutory beneficiaries did not qualify.

 Judge Downie authored the opinion; Judges Portley and Orozco concurred.