United States District Court, D. Arizona
K. Jorgenson United States District Judge
December 22, 2016, Magistrate Judge Leslie A. Bowman issued a
Report and Recommendation (Doc. 31) in which she recommended
the Motion for Summary Judgment (Doc. 23) filed by Plaintiff
Nancy Bono (“Bono”) be denied and the Motion for
Summary Judgment (Doc. 25) filed by State Farm Mutual
Automobile Insurance Company (“State Farm”) be
granted. Bono has filed an objection (Doc. 32) and State Farm
has filed a response (Doc. 33). Bono has requested oral
argument. The Court finds it would not be assisted by oral
argument and declines to set this matter for hearing.
standard of review that is applied to a magistrate
judge's report and recommendation is dependent upon
whether a party files objections - the Court need not review
portions of a report to which a party does not object.
Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466,
472-73, 88 L.Ed.2d 435 (1985). However, the Court must
“determine de novo any part of the magistrate
judge's disposition that has been properly objected to.
The district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return
the matter to the magistrate judge with instruction.”
Fed.R.Civ.P. 72(b)(3); see also 288 U.S.C. §
636(b)(1) (“A judge of the court shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
and Recommendation - Background and Standard of Review:
parties stipulated to the facts summarized in the Report and
Recommendation (“R&R”). See also
Stipulated Statement of Facts RE Motions for Summary Judgment
(Doc. 24). The Court adopts the facts stated by the
the Court adopts that portion of the R&R that states the
standard of review when the Court considers a motion for
objects to the magistrate judge's conclusion that the
applicable Arizona statutes defines Underinsured Motorist
(“UIM”) “coverage, in pertinent part, as
‘coverage for a person' for ‘bodily injury .
. . resulting from the accident' where ‘total
damages' exceed the liability limits. It does not
explicitly state whether bodily injury must be suffered by
the covered person. ‘[T]he statute's language is
subject to different interpretations . . . . ” (Doc. 31
at 5) (citations omitted). Bono asserts there is no need to
analyze the legislative intent, as the magistrate judge did,
because the statute is clear and unambiguous. Indeed, Bono
asserts the statute only requires an injury and damages and
the “broad language does not contain exceptions.”
Taylor v. Travelers Indem. Co. of Am., 198 Ariz.
310, 314, 9 P.3d 1049, 1053 (2000).
the Court agrees with the magistrate judge's reliance on
Lowing v. Allstate Ins. Co., 176 Ariz. 101, 859 P.2d
724 (1993). Lowing stated that “[e]xceptions
to coverage are not generally permitted unless expressly
allowed by statute.” 176 Ariz. At 106. As pointed out
by the magistrate judge, “the Lowing court did
not limit itself to analyzing the language of the
statute.” (R&R, p. 6). The Lowing court
recognized that the statute defines UIM “coverage for a
person” for “bodily injury . . . resulting from
the accident” where “total damages” exceed
the liability limits. 176 Ariz. At 103-04 (citation omitted).
However, as stated by the magistrate judge, the statute
“does not explicitly state whether the bodily injury
must be suffered by the covered person. (R&R, p. 5). The
Court agrees with the magistrate judge that the language of
the statute is not clear and unambiguous and, therefore,
interpretation is not limited to the language of the statute.
“every provision of a statute must be read in
conjunction with the other provisions, giving meaning, if
possible, to ‘each word, clause or sentence, considered
in the light of the entire act itself and the purpose for
which it was enacted into law.'” Doty-Perez v.
Doty-Perez, 241 P.3d 372, 376-77, 388 P.3d 9, 13-14
(App. 2016) (citation omitted). In other words, the
definition of UIM coverage, as stated in A.R.S. §
20-259.01(G), must be read in conjunction with A.R.S. §
20-259.01(B), which requires UIM to extend to and cover all
persons insured under a policy. While § 20-259.01(G)
does not include exceptions, the reading of §§
20-259.01(B) and (G) together arguably does limit the
coverage. It is not clear if § 20-259.01(B) is intended
to limit the coverage for bodily injury to a covered person.
Indeed, it is arguably § 20-259.01(B) that covers the
parameters of the coverage while § 20-259.01(G) simply
provides a definition. The Court agrees with the magistrate
judge, therefore, that the statute is subject to different
Supplemental Coverage - Bodily Injury
objects to the magistrate judge's inference that, because
UIM coverage does not provide protection if the tortfeasor
merely damages property, UIM coverage is not required where
bodily injury is suffered by a non-insured, but where there
is a pecuniary loss to the insured. Bono asserts this
inference is illogical because A.R.S. § 28-4009 requires
different liability coverage for bodily injury and property
damage (i.e., liability vs. property damage portions of
policies). Bono asserts, “It does not follow from the
fact UIM coverage does not apply to property damage, payable
under the property-damage limit of the liability policy, that
wrongful-death damages, payable from the injury-liability
limit of the liability policy, would not be included in UIM
coverage.” (Doc. 32 at 3).
Court agrees with the magistrate judge that an inference can
be made that Arizona's UIM coverage is designed to
protect an insured's bodily integrity, rather than a
pecuniary loss. See e.g. State Farm Mut. Auto. Ins. Co.
v. Wilson, 162 Ariz. 251, 255, 782 P.2d 727, 731 (1989)
(UIM coverage is required for bodily injury or death; it does
“not even compensate the victim for the total loss
(property as well as personal injury) suffered). (1989).
Although Bono argues this does not mean that coverage does
not apply to property damage, the Court finds there is no
legislative intent to expand the coverage. Rather, the
Arizona statutes provide protection “for each person
actually injured or killed and not for each person with a
damage claim.” Herring v. Lumbermen's Mut. Cas.
Co., 144 Ariz. 254, 256, 697 P.2d 337, 339 ...