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Bono v. State Farm Mutual Automobile Insurance Co.

United States District Court, D. Arizona

December 22, 2016

Nancy Bono, Plaintiff,
v.
State Farm Mutual Automobile Insurance Company, a foreign corporation, Defendant.

          REPORT AND RECOMMENDATION

          Leslie A. Bowman United States Magistrate Judge.

         Pending before the court are cross-motions for summary judgment filed on May 19, 2016. (Doc. 23); (Doc. 25)

         The plaintiff in this action, Nancy Bono, claims her insurer, State Farm, wrongly denied her claim for underinsured motorist (UIM) coverage. Bono argues UIM coverage applies to the wrongful death of her son, who was killed by an automobile while he was walking in a crosswalk. Her son was not insured under her policy, but she is statutorily entitled to bring an action against the tortfeasor for her son's wrongful death.

         Bono and State Farm both move for summary judgment based on the construction of the insurance policy and the Arizona UIM statute, A.R.S. 20-259.01.

         The case has been referred to Magistrate Judge Bowman for a report and recommendation pursuant to the Local Rules of Practice. LRCiv 72.2. A hearing on the motion was held on December 19, 2016.

         Background

         The parties stipulate to the following facts: Bono's son was struck and killed by a drunk driver while he was walking in a crosswalk. (Doc. 24, pp. 2, 5) The driver was insured by Farmers, which tendered the $50, 000 liability limit to Bono for her son's wrongful death, pursuant to A.R.S. § 12-612. (Doc. 24, p. 2) Bono's damages exceeded $50, 000; the driver was therefore “underinsured.” Id.

         Bono was insured by State Farm. Her auto insurance policy[1] contains underinsured motorist (UIM) coverage for $100, 000. (Doc. 24, p. 2) Bono's son did not live with her and was not a named insured on her automobile policy. That policy contains the following UIM provision:

Insuring Agreement
We will pay compensatory damages for bodily injury an insured is legally entitled to recover from the owner or driver of an underinsured motor vehicle.
The bodily injury must be:
1. sustained by an insured; and
2. caused by an accident that involves the operation, maintenance" or use of an underinsured motor vehicle as a motor vehicle.
Bodily Injury means bodily injury to a person and sickness; disease, or death that results from it.

(Doc. 24, p. 4) (emphasis in original)

         Bono submitted a claim for UIM benefits, but State Farm denied her claim because her son was not insured under the policy, and therefore an insured did not suffer a bodily injury. (Doc. 24, pp. 3-4)

         Bono filed suit in Arizona Superior Court on July 17, 2015. (Doc. 24, p. 4) State Farm removed the case to ...


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