AUTOMOBILE LAW COMMITTEE
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Oct. 21, 2002

49 P.3d 640
Supreme Court of Kansas.
Michael E. TYLER, Appellee,
v.
EMPLOYERS MUTUAL CASUALTY COMPANY, Appellant,
and
Farmers Casualty Insurance Company, Appellee.
No. 87,406.
July 12, 2002.

Deputy sheriff brought action against county's automobile insurer to recover uninsured motorist (UM) benefits. The District Court, Jefferson County, Gary L. Nafziger, J., entered summary judgment in favor of deputy sheriff. Insurer appealed. The Supreme Court, Six, J., held that: (1) patrol car titled in the name of county sheriff's department was owned by the county and, therefore, was a covered auto for purposes of UM coverage; (2) workers compensation coverage entitled insurer to setoff only for workers' compensation benefits actually awarded to the deputy; (3) policy provision excluding UM benefits for any element of loss, if the insured was entitled to receive payment for the same element of loss under any workers compensation law, was void and unenforceable to the extent contrary to the statute allowing a setoff only for duplicative workers compensation benefits; and (4) prejudgment interest began to run at time of nunc pro tunc order denying workers compensation award of future medical benefits, not when tort judgment was entered against the uninsured motorist.

Affirmed in part, reversed in part, and remanded with directions.

Supreme Court of Washington, En Banc.
Robert E. BESEL, Appellant,
v.
VIKING INSURANCE COMPANY OF WISCONSIN, doing business in Washington, Respondent.
No. 71071-6.
Argued Jan. 29, 2002.
Decided July 18, 2002.

Automobile accident victim brought action against liability insurer to recover as the insured's assignee for bad faith and violation of the Consumer Protection Act (CPA) in handling claim. The Superior Court, Spokane County, James Murphy, J., denied victim's summary judgment motion and limited damages to the policy limits. Victim appealed. The Court of Appeals, Kurtz, C.J., 21 P.3d 293, reversed and remanded. Review was granted. The Supreme Court, Johnson, J., held that: (1) covenant not to execute on judgment against insured did not preclude a showing of harm from liability insurer's bad faith failure to settle, and (2) the amount of the victim's settlement with the insured was the measure of damages for the insurer's bad faith

49 P.3d 1011
2002 WY 105
Supreme Court of Wyoming.
Kathy A. ANDERSEN, as Personal Representative of the Estates of Jared Steffen, Decedent, and Robert Dean Yates, Decedent; and Jody McCampbell, Individually and as Conservator for Caleb Steffen, a Minor Child, Appellants (Plaintiffs),
v.
TWO DOT RANCH, INC., a Wyoming corporation; and Maria Lopez Hernandez, Appellees (Defendants).
No. 00-67.
July 12, 2002.

Estates of automobile passengers killed in collision with cow brought action against owner of cow and driver of other vehicle. The District Court, Park County, Hunter Patrick, J., granted summary judgment for defendants, and plaintiffs appealed. The Supreme Court, Kite, J., held that: (1) owner of cow did not owe duty to passengers of vehicle that struck cow, and (2) fact issues as to whether driver of other vehicle that struck cow sent her child to warn oncoming traffic precluded summary judgment.

Affirmed in part, reversed in part, and remanded.

49 P.3d 623
Supreme Court of Montana.
Barbara J. BARTELL, Individually, and as Personal Representative of the Estate of Gordon L. Bartell, deceased, Plaintiff,
v.
AMERICAN HOME ASSURANCE COMPANY, a New York corporation, Defendant.
No. 01-575.
Argued and Submitted Jan. 29, 2002.
Decided June 27, 2002.

Estate of employee of tribal college killed in work-related accident brought action in the United States District Court, District of Montana, seeking uninsured motorist (UM) coverage. The District Court certified a question to the Supreme Court. Upon acceptance of certification, the Supreme Court, W. William Leaphart, J., held that exclusion for government-owned vehicles from definition of uninsured motor vehicle violated public policy.

566 S.E.2d 624
Supreme Court of Appeals of West Virginia.
Dorothy L. HAWKINS and Paul E. Hawkins, Plaintiffs Below, Appellants
v.
FORD MOTOR CO., A Delaware Corporation, Defendant Below, Appellee
No. 30357.
Submitted June 4, 2002.
Decided June 19, 2002.
Concurring Opinion of Justice McGraw July 3, 2002.

Insurer brought subrogation action in name of its insureds against automobile manufacturer. After jury trial, the Circuit Court, Kanawha County, Paul Zakaib, Jr., J., entered judgment awarding plaintiffs $10,715.25 in damages. Plaintiffs appealed. The Supreme Court, Maynard, J., held that: (1) self- insured automobile manufacturer was not subject to provisions of Unfair Trade Practices Act, but (2) insureds were entitled to attorney fees under Magnuson- Moss Act.

2002 WL 1880376
United States Court of Appeals,First Circuit.
SEACO INSURANCE COMPANY, Plaintiff, Appellee,
v.
Laura DAVIS-IRISH, Defendant, Appellant.

No. 02-1143.
Heard July 31, 2002.
Decided Aug. 20, 2002.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. D. Brock Hornby, U.S. District Judge]

William D. Robitzek, with whom Paul F. Macri and Berman & Simmons, P.A. were on brief, for appellant.

John S. Whitman, with whom Richardson, Whitman, Large & Badger was on brief, for appellee.

Randall B. Weill and Preti, Flaherty, Beliveau, Pachios & Haley, LLC on brief for National Union Fire Insurance Company, amicus curiae.Before SELYA, Circuit Judge, GIBSON [FN*] and GREENBERG, [FN**] Senior Circuit Judges.

SELYA, Circuit Judge.

This appeal arises out of an automobile accident in which a vehicle operated by an uninsured motorist collided with a vehicle driven by Lorraine Wark. The negligence of the uninsured motorist was the principal cause of the accident. A passenger in Wark's vehicle, appellant Laura Davis-Irish, sustained serious injuries. At the time of the crash, Davis-Irish was in the course of her employment with Garrand & Company (Garrand).
Only the Westlaw citation is currently available.

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
2002 WL 1772961

Supreme Court of Alaska.
Cynthia WOLD, individually and as Personal Representative of the Estate of
Heidi Wold, Appellant,
v.
PROGRESSIVE PREFERRED INSURANCE COMPANY, Appellee.
No. S-9775.
Aug. 2, 2002.

Appeal from the Superior Court of the State of Alaska, Third Judicial District, Brian C. Shortell, Judge.
Laurel J. Peterson, Laurel J. Peterson, P.C., Anchorage, for Appellant.
Daniel T. Quinn, Richmond & Quinn, Anchorage, for Appellee.

Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, and BRYNER, Justices.
OPINION
BRYNER, Justice.

I. INTRODUCTION

Heidi Wold was killed while riding in a pick-up that rolled over after its driver, Koby Smith, swerved to avoid an on-coming car; the on-coming car kept driving and was never identified. Heidi's estate and her parents settled with Smith's insurer; Heidi's mother, Cynthia, then claimed benefits--both individually and as personal representative of Heidi's estate--from Progressive Preferred Insurance Company on Cynthia's own uninsured/underinsured motorists (UM/UIM) policy. Progressive refused to pay and sought a declaratory judgment, claiming that the unknown driver's conduct could not trigger UM/UIM coverage without a collision and that Smith's negligence could not trigger UM/UIM coverage because the Wolds had not exhausted his liability coverage. The superior court entered judgment for Progressive. We affirm in part and reverse in part, agreeing that Alaska law treats unidentified vehicles as uninsured only when there is a collision but holding that Heidi Wold's estate used up Smith's liability coverage and so may claim UM/UIM benefits from Progressive.

647 N.W.2d 223
Supreme Court of Wisconsin.
BADGER MUTUAL INSURANCE COMPANY, Plaintiff,
v.
Dennis SCHMITZ, Defendant-Respondent-Petitioner,
The American Hardware Insurance Group, Defendant-Appellant,
Valerie Schmitz and SCI Management Corp., Defendants.
No. 00-2682.
Argued March 6, 2002.
Decided July 10, 2002.

Insured filed a cross-claim against his underinsured motorist (UIM) carrier for a declaratory judgment that the reducing clause was invalid and that the insured was entitled to the UIM limits. The Circuit Court, Outagamie County, James T. Bayorgeon, J., entered summary judgment in favor of the insured. Carrier appealed. The Court of Appeals reversed and remanded in an unpublished opinion. Review was granted. The Supreme Court, David T. Prosser, J., held that: (1) an otherwise unambiguous and valid reducing clause was ambiguous and unenforceable in the context of the entire policy and rendered the UIM coverage illusory, and (2) finding that the clause was unambiguous did not end the inquiry over the validity, abrogating Sukala v. Heritage Mut. Ins. Co., 240 Wis.2d 65, 622 N.W.2d 457, and Dorschner v. State Farm Mut. Auto. Ins. Co., 244 Wis.2d 261, 628 N.W.2d 414.

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