Dr. Robbin Frost, a licensed podiatrist, was driving alone in her husband's Pontiac Bonneville when she was severely injured in a collision caused by an underinsured motorist. So far, she has collected $250,000 in insurance proceeds; she seeks further payment from Peerless Indemnity Insurance Co. and Peerless Insurance Co. (together, "Peerless"), who issued business owner's and excess/umbrella policies to Frost's podiatric practice, Lake Region Family Foot and Ankle Center, P.A. ("Lake Region"). Peerless sued in federal district court for a declaratory judgment that it had no duty to pay for any of Frost's injuries or damages. The district court granted summary judgment in favor of Peerless. Frost appeals.
We affirm the district court's decision on the ground that Maine's uninsured/underinsured motorist statute, Me.Rev.Stat. tit. 24-A, § 2902, does not apply to the Peerless policies issued to Lake Region.
On appeal from the district court's summary judgment order, we review the relevant facts in the light most favorable to the party against whom judgment was granted (here, Frost) and draw all reasonable inferences in her favor. Kelley v. Corr. Med. Servs., Inc., 707 F.3d 108, 110 (1st Cir.2013). The facts here are drawn from the pleadings and statements submitted by Frost to the district court, as well as the undisputed documentary evidence.
Frost is the sole stockholder and executive officer of Lake Region, a Maine professional association with a surgical practice office in Windham, Maine. On May 25, 2007, Frost set out from Lake Region's office in Windham to the Mercy Hospital in Portland, where she was scheduled to perform several podiatric surgical procedures. The car she was driving, a Pontiac Bonneville, was titled to her husband, but Frost was the primary user of the automobile and the vehicle registration showed both Frost and her husband as co-registrants.
While traveling east along Route 202, Frost brought the Pontiac to a stop at a traffic light in the town of Gray, Maine. The driver of a second vehicle stopped behind her. As Frost and the second driver waited at the traffic light, the driver of a third vehicle came from behind at an unsafe speed and failed to bring his vehicle to a halt, colliding with the second car and pushing it violently into the rear of the Pontiac Bonneville.
Frost suffered severe injuries as a result of the collision, including permanent disfigurement and near-total loss of her eyesight. The injuries have forced Frost to discontinue her podiatric practice. Frost has stated in her pleadings that her injuries and damages as a result of the collision are "well in excess" of $2.25 million. Peerless concedes that Frost's injuries and damages are at least in excess of $1.25 million.
Frost and the driver of the second vehicle both sought to recover damages from the driver of the third vehicle, whose negligence appears to have been the sole proximate cause of the collision. The driver of the third vehicle was covered under an automobile insurance policy issued by AIU Insurance Co. ("AIU"). That policy provided coverage for bodily injury and property damage of up to a maximum of $125,000 per accident. Frost herself was covered under an automobile insurance policy issued by Progressive Northwestern Insurance Co. ("Progressive"), which provided
AIU agreed to pay $99,745.98 to Frost in connection with the accident; this sum represented the full amount of coverage remaining under the negligent driver's liability policy after the second driver was compensated for his injuries. Meanwhile, Progressive agreed to pay Frost $150,254.02, which represented the maximum underinsured motorist coverage under the policy minus the amount Frost already had received from AIU.
Frost's podiatric practice, Lake Region, also had two insurance policies in effect at the time of the accident: a business owner's policy issued by Peerless Indemnity Insurance Co. and a commercial umbrella policy issued by Peerless Insurance Co. The business owner's policy provided coverage to Lake Region for liability and medical expenses of up to $1 million per occurrence; the umbrella policy provided additional coverage for up to $1 million.
Despite this explicit exclusion of automobile liability coverage, the business owner's policy was subject to an endorsement for "Hired Auto and Non-Owned Auto Liability," which applied to bodily injury and property damage arising out of the use of a "hired auto" or "non-owned auto" by an employee of Lake Region in the course of business. The endorsement explicitly deleted the exclusion of automobile liability coverage "[f]or insurance provided by this endorsement only."
The endorsement included a section entitled "Who Is An Insured," which read, in relevant part:
None of the following is an insured:
The terms "hired auto" and "non-owned auto" were defined by the policy as follows:
The umbrella policy defined "auto hazard" to mean "liability arising out of the ownership, maintenance, use or `loading or unloading' of any auto." The policy also stated that:
When Frost demanded payment from Peerless under the business owner's and umbrella policies for injuries and damages that resulted from the May 25, 2007 collision, Peerless refused on the ground that it had no obligation under either policy to pay uninsured/underinsured motorist benefits to Frost with respect to the accident. Peerless then filed a declaratory judgment complaint in federal district court in Maine, invoking the court's diversity jurisdiction under 28 U.S.C. § 1332(a) (2006).
We review the grant of a motion for summary judgment de novo. Cruz v. Bristol-Myers Squibb Co., 699 F.3d 563, 570 (1st Cir.2012). Peerless argues that the terms of Lake Region's business owner's and umbrella policies explicitly exclude coverage for automobiles owned by Frost's family members. Frost concedes that the business owner's and umbrella policies exclude liability coverage with respect to automobiles owned by her family members, but she argues that under Maine law the Peerless policies must be deemed to provide uninsured/underinsured motorist coverage to Frost. Frost's argument is based on a Maine statute, Me.Rev. Stat. tit. 24-A, § 2902, and the Maine case law construing that statute.
In 1967, the Maine Legislature first enacted a statute requiring automobile liability insurers to provide coverage in their policies for injuries caused by uninsured tortfeasors. See Connolly v. Royal Globe Ins. Co., 455 A.2d 932, 935 (Me. 1983) (citing Pub.L. No.1967, ch. 93, § 1 (effective Jan. 1, 1968)). In 1975, the Legislature extended the mandatory coverage provision so that it would apply to victims injured by underinsured as well as uninsured
Me.Rev.Stat. tit. 24-A, § 2902(1) (2013).
The statute reflects "a strong public policy in favor of the just compensation of accident victims." Beal v. Allstate Ins. Co., 989 A.2d 733, 743 (Me.2010) (quoting Wescott v. Allstate Ins., 397 A.2d 156, 167 (Me. 1979)) (internal quotation marks omitted). The "obvious design" of the statute is "to protect a responsible insured motorist against the hazards presented by the operation of motor vehicles where injuries are inflicted in an accident with an irresponsible operator who is ... financially unable to furnish adequate compensation for the injuries caused in the accident." Wescott, 397 A.2d at 166; see also Beal, 989 A.2d at 743 ("[T]he legislative purpose of section 2902 was to allow `an injured insured the same recovery which would have been available ... had the tortfeasor been insured to the same extent as the injured party.'" (second alteration in original) (emphasis omitted) (quoting Jipson v. Liberty Mut. Fire Ins. Co., 942 A.2d 1213, 1216 (Me.2008))).
Under the statute, every automobile insurance policy in Maine must provide uninsured/underinsured motorist coverage of at least $50,000 for injury to or death of one person and $100,000 per accident for injury to or death of more than one person. See Me.Rev.Stat. tit. 24-A, § 2902(2); id. tit. 29-A, § 1605(1)(C); see also Dairyland Ins. Co. v. Christensen, 740 A.2d 43, 44 n. 1 (Me. 1999). Stricter rules apply to automobile insurance policies "insuring a single individual or one or more related individuals resident in the same household, as named insured." Me.Rev.Stat. tit. 24-A, § 2912(1). These individual and household policies generally must provide uninsured/underinsured motorist coverage at least equal to "the amount of coverage for liability for bodily injury or death." Id. § 2902(2).
At issue in this case is whether Lake Region's Peerless policies count as "polic[ies] insuring against liability arising out of the ownership, maintenance or use of any motor vehicle ... with respect to any such vehicle registered or principally garaged in this State" for the purposes of Maine's uninsured/underinsured motorist statute. Me.Rev.Stat. tit. 24-A, § 2902(1). Since the umbrella policy is parasitic on the underlying business owner's policy, whether the umbrella policy is covered by the statute depends on whether the business owner's policy is. For the following reasons, we conclude that the business owner's policy is not covered by the statute.
The issue in this case is one of Maine law. The Maine Law Court has never definitively ruled on whether Maine's uninsured/underinsured motorist statute applies to policies such as those Peerless issued to Lake Region. When a state's highest court has yet to rule definitively on a question of state law, our task is to predict how that court likely would decide the issue. Rosciti v. Ins. Co. of Pa., 659 F.3d 92, 98 (1st Cir.2011).
"In carrying out that task, our first step is to consult pertinent statutory language...." González-Figueroa v. J.C. Penney P.R., Inc., 568 F.3d 313, 318 (1st Cir.2009). On its face, Maine's uninsured/underinsured motorist statute applies to "polic[ies] insuring against liability arising out of the ownership, maintenance or use of any motor vehicle ... with respect to any such vehicle registered or principally garaged in this State." Me. Rev.Stat. tit. 24-A, § 2902(1). Given that
Frost argues that the phrase "with respect to any such vehicle registered or principally garaged in this State" is intended simply to describe the limits of state authority to regulate insurance policies — not to confine the reach of the statute to particular types of policies. Frost offers no support for that assertion, but even if she is correct, her reading does not alter the meaning of the limiting phrase. The statute is worded as a conditional prohibition on the delivery and issuance of insurance policies. Me.Rev.Stat. tit. 24-A, § 2902(1) ("A policy ... may not be delivered or issued ..., unless [certain conditions are met]...."). The phrase "with respect to" circumscribes that conditional prohibition, limiting it to "[a] policy insuring against liability arising out of the ownership, maintenance or use of any motor vehicle ... registered or principally garaged in this State." Id. Whatever the purpose of the "with respect to" language (and it seems likely that it is intended, in part, to delimit the state's authority), that language still describes an insurance policy issued for specific vehicles.
That the uninsured/underinsured motorist statute applies to insurance policies issued for specific motor vehicles is further supported by the next subsection of the statute, which establishes the amount of uninsured/underinsured motorist coverage that must be provided. See id. § 2902(2). In setting out the requirements, this section divides the universe of policies covered by the uninsured/underinsured motorist statute between "motor vehicle insurance policies subject to [other sections of the Maine Insurance Code]" and "motor vehicle insurance policies not subject to [those other sections]." Id. (emphases added). In other words, the statute itself contemplates that it will apply only to "motor vehicle insurance policies." Even if the business owner's policy might theoretically be characterized as "[a] policy insuring against liability arising out of the ownership, maintenance or use of any motor vehicle," it is difficult to characterize the business owner's policy as a "motor vehicle insurance policy."
In predicting how the Maine Law Court would decide this issue, we also look to analogous decisions of that court. See Barton v. Clancy, 632 F.3d 9, 17 (1st Cir. 2011). Though the Law Court has never explicitly deemed the uninsured/underinsured motorist statute inapplicable outside the context of motor vehicle insurance policies, the court has repeatedly employed language to that effect. E.g., Molleur v. Dairyland Ins. Co., 942 A.2d 1197, 1200 (Me.2008) ("The Legislature requires that any motor vehicle policy written in Maine provide UM/UIM coverage." (emphasis added)); Connolly, 455 A.2d at 935 ("In 1967, the Legislature originally enacted the uninsured vehicle coverage to require automobile liability insurers to provide uninsured vehicle coverage in the policies." (emphasis added)); Dufour v. Metro. Prop. & Liab. Ins. Co., 438 A.2d 1290, 1291-92 (Me. 1982) ("24-A M.R.S.A. § 2902 (1980)... provides that any automobile liability insurance policy delivered in Maine and
Furthermore, we may consult decisions of the state's lower courts, even those that express "considered dicta." Rosciti, 659 F.3d at 98; see also DiBella v. Hopkins, 403 F.3d 102, 113 (2d Cir.2005) (statements by state's lower courts, even if dicta, can be "helpful indicators of state law"). A Maine trial court has suggested in dicta that an "umbrella policy would not constitute a policy `with respect to [a] vehicle registered or principally [garaged] in this State' within the meaning of [section] 2902(1)." Outram v. Onebeacon Ins. Grp. LLC, No. CV-06-319, 2007 WL 4693286, 2007 Me.Super. LEXIS 206, at *6 n. 3 (Me.Super.Ct. Oct. 5, 2007) (first alteration in original).
Moreover, we "may consider ... any other reliable data tending convincingly to show how the highest court in the state would decide the issue at hand." Michelin Tires (Can.) Ltd. v. First Nat. Bank of Bos., 666 F.2d 673, 682 (1st Cir. 1981) (citations and internal quotation marks omitted). Several pieces of legislative history reinforce the understanding that the statute applies only to motor vehicle policies. See, e.g., Letter from Alessandro A. Iuppa, Superintendent, State of Me. Dep't of Prof'l & Fin. Reg., Bureau of Ins., to Sen. Lloyd LaFountain, Rep. Jane Saxl & Joint Standing Comm. on Banking & Ins. 1 (Apr. 12, 1999) ("Current law ... requires every motor vehicle policy issued in this state to include uninsured and underinsured motor vehicle coverage." (emphasis added)); H.R. 122-L.D.2021, 2d Sess., at H-1354 (Me.2006) (statement of Rep. Lisa Marraché) ("The intent of the [uninsured/underinsured motorist] law when it was first passed was for car insurance for the person who was driving or those who were in the car and not necessarily other people to make claims against their own car insurance...." (emphasis added)).
Additionally, we consider how other state courts have resolved the question. See Rosciti, 659 F.3d at 98. Courts in other states have held that uninsured/underinsured motorist statutes with language similar to Maine's do not apply to commercial general liability policies such as those at issue here. See, e.g., Trinity Universal Ins. Co. v. Metzger, 360 So.2d 960, 962 (Ala.1978) (similarly worded Alabama statute applies only to policies that "insure against the risk of loss through the operation of specific automobiles"). One useful example is Hodge v. Raab, 116 Wn.App. 303, 65 P.3d 679 (2003). Hodge, an employee at an auto garage, was working on a customer's truck when, through the customer's fault, the truck lurched forward, injuring Hodge. Id. at 680. The customer had no liability insurance. Id. Hodge's employer maintained a commercial general liability policy for injury caused by garage operations, incidentally including injury caused by unspecified customer vehicles. Id. at 680, 682. Hodge argued that this liability coverage for customers' cars brought the policy within the ambit of Washington's uninsured/underinsured motorist statute. Id. at 681. The court rejected that argument, explaining:
Id. at 681-82.
Frost attempts to distinguish Hodge. She argues that the policy in Hodge — which "provided liability coverage for garage accidents, specifically excluding those caused by autos," subject to an exception for accidents caused by "any customer vehicle," id. at 682 — "obviously provides significantly narrower coverage for autos than the [business owner's policy] with the Hired Auto and Non-Owned Auto Liability endorsement." It is far from obvious to us, however, that the sliver of auto insurance in Hodge was narrower than the sliver of auto insurance in the business owner's policy here. Indeed, Frost overstates the amount of auto insurance bound up in Lake Region's business owner's policy. She argues, erroneously, that the policy's initial explicit exclusion of auto liability coverage "is completely removed and replaced by the `Hired Auto and Non-Owned Auto Liability' endorsement." In fact, by its own terms, as already noted, the endorsement deletes that exclusion "[f]or insurance provided by this endorsement only" (emphasis added). Outside of the narrow context of hired and non-owned autos, the exclusion of auto liability coverage retains full force, reinforcing the notion that the business owner's policy is not the type of auto policy to which the Maine statute applies.
There are cases from other states, however, in which commercial general liability policies similar to the business owner's policy, containing similar auto liability endorsements, were held subject to those states' uninsured/underinsured motorist statutes. For instance, Illinois's intermediate appellate court has held that the state's uninsured/underinsured motorist statute-which is worded similarly to Maine's — applies to commercial general liability policies that, like the business owner's policy issued to Lake Region, include hired and non-owned auto liability endorsements. Harrington v. Am. Family Mut. Ins. Co., 332 Ill.App.3d 385, 265 Ill.Dec. 736, 773 N.E.2d 98, 100 (2002) (sole proprietor of landscaping business who was injured by underinsured motorist while riding his bicycle can claim underinsured motorist benefits from his commercial general liability insurer); see also W. Bend Mut. v. Keaton, 755 N.E.2d 652, 654 (Ind.Ct.App.2001); Selander v. Erie Ins. Grp., 85 Ohio St.3d 541, 709 N.E.2d 1161
The courts that decided these cases were willing to interpret broadly language similar to "[a] policy insuring against liability arising out of the ownership, maintenance or use of any motor vehicle ... with respect to any such vehicle registered or principally garaged in this State." But in our opinion, such interpretations do violence to the plain meaning of the text. And we find it notable that, after the Ohio Supreme Court decided Selander, the Ohio Legislature amended its uninsured/underinsured motorist statute to preclude its application to commercial general liability policies such as those at issue in Selander and here. See Bowling v. St. Paul Fire & Marine Ins. Co., 149 Ohio App.3d 290, 776 N.E.2d 1175, 1177, 1179 (2002) (stating that Selander was superseded by statute). This amendment suggests that the Ohio Legislature appreciated the negative policy consequences of interpreting an uninsured/underinsured motorist statute unduly broadly. Indeed, "`[i]t should be recognized that the generosity of the courts confers no favor upon the insuring public. Such decisions result either in such coverage being withdrawn from potential insureds or in premium rates being raised so substantially that they will become priced out of the range of most buyers.'" Hodge, 65 P.3d at 682 (quoting 8C J. Appleman, Insurance Law and Practice § 5071.65, at 108 (1981)).
Frost argues that not applying the uninsured/underinsured motorist statute to the Peerless policies is at odds with Maine's clearly articulated public policy of providing broad uninsured/underinsured motorist coverage. See, e.g., Greenvall v. Me. Mut. Fire Ins. Co., 715 A.2d 949, 952 (Me.1998) ("To effectuate [its] intent, we construe section 2902 liberally in favor of the insured victim and strictly against the insurer. Any ambiguity in the phrase `legally entitled to recover' must be construed in favor of the insured." (citations and internal quotation marks omitted)). Indeed, Maine adheres to the rule that "[u]ninsured and underinsured insurance ... is personal and portable, following the insured, rather than the vehicle." 16 Williston on Contracts § 49:35 (4th ed.2013); see also Pease v. State Farm Mut. Auto. Ins. Co., 931 A.2d 1072, 1077 (Me.2007) (Silver, J., concurring) ("UM coverage inures to the person, not the vehicle.... Maine precedent has ensured that UM coverage extends to pedestrians, bicyclists, and other insured who are injured while not in their owned-insured vehicle. Construing the UM statute broadly to prohibit... exclusions follows the legislative intent to close coverage gaps rather than endorse patchwork policies that leave responsible, insured consumers without the protection they have paid for." (citations and internal quotation marks omitted)); Skidgell v. Universal Underwriters Ins. Co., 697 A.2d 831, 834 (Me.1997) (allowing passenger on another's motorcycle to claim benefits under uninsured/underinsured motorist coverage of passenger's own automobile policy, and reasoning that limitations on scope of uninsured motorist coverage in insurance policy were "contrary to the public policy embodied in [section] 2902").
Frost is correct to note that the Maine Law Court has expressed a general unwillingness to allow insurers to circumscribe uninsured/underinsured motorist coverage. But Frost overlooks the fact that the decisions reflecting this unwillingness involve automobile liability policies that either explicitly provide uninsured/underinsured
In addition, Frost also overlooks the fact that the rationale underlying the well-established owned-but-not-insured exception to the broad, portable nature of uninsured/underinsured motorist coverage confirms that the uninsured/underinsured motorist statute should not apply in this case. Under the owned-but-not-ensured exception, a person who owns multiple vehicles but only purchases automobile liability insurance on some of those vehicles cannot rely on section 2902 to confer uninsured/underinsured motorist coverage with respect to injuries sustained while riding in the owned-but-not-insured vehicles. See Hare v. Lumbermens Mut. Cas. Co., 471 A.2d 1041, 1043 (Me.1984) ("[U]ninsured motorist coverage on one of a number of vehicles owned by an insured does not extend the benefits of such coverage, for no premium, to all other vehicles owned by that insured."); see also Gross v. Green Mountain Ins. Co., 506 A.2d 1139, 1142 (Me.1986); Brackett v. Middlesex Ins. Co., 486 A.2d 1188, 1191 (Me.1985). As courts elsewhere have noted, the owned-but-not-insured exception avoids "`the inequity of allowing a person who insures one vehicle with an insurance carrier to obtain a "free ride" by thereby obtaining coverage by that same carrier on one, two, or a fleet of vehicles upon which he has paid no premium to the carrier.'" Nationwide Mut. Ins. Co. v. Hampton, 935 F.2d 578, 586-87 (3d Cir.1991) (quoting Dullenty v. Rocky Mountain Fire & Cas. Co., 111 Idaho 98, 721 P.2d 198, 204 (1986), abrogated by Colonial Penn Franklin Ins. Co. v. Welch, 119 Idaho 913, 811 P.2d 838 (1991)). Moreover, if the uninsured/underinsured motorist statute provided coverage for persons injured while riding in cars that they owned but that they excluded from their insurance policies, then "multi-car owners would be acquiring insurance at rates subsidized by single-car owners," a result that some courts have found to be "neither desirable nor compatible with public policy." Clampit v. State Farm Mut. Auto. Ins. Co., 309 Ark. 107, 828 S.W.2d 593, 597 (1992); see also Lefler v. General Cas. Co. of Wis., 260 F.3d 942, 945 (8th Cir.2001) ("`If an insurer is required to insure against a risk of an undesignated but owned vehicle, or a different and more dangerous type of vehicle of which it has no knowledge, it is thereby required to insure against risks of which it is unaware, unable to underwrite, and unable to charge a premium therefor.'" (quoting Dessel v. Farm & City Ins. Co., 494 N.W.2d 662, 664 (Iowa 1993))).
The rationale underlying the owned-but-not-insured exception — that it would be unfair for a person insured with respect to one or more vehicles to claim uninsured/underinsured motorist coverage for a vehicle he owns that is not identified and for which no premium has been paid — applies with full force to this case. Through Lake Region (an entity that Frost wholly owns and completely controls), she purchased liability coverage for
In summary, given the legislative text, structure, history, and policy, as well as relevant case law from both within and without Maine, we predict that the Maine Law Court would hold that section 2902 does not apply to the Peerless policies at issue in this case.
For the reasons stated, the Maine uninsured/underinsured motorist statute does not apply to the business owner's and umbrella policies issued by Peerless to Lake Region, precluding Frost's recovery from Peerless. Therefore, the district court properly issued a declaratory judgment that Peerless had no duty under either policy to pay Frost for the injuries and damages that she suffered in the May 25, 2007 accident.
Affirmed.