Primary carrier pays nothing because primary carrier, not the excess carrier, gets to offset the full amount of the tortfeasor’s liability payment. Humphrey v. Vermont Mutual and State Farm, 2009 VT 53 (mem.)
Humphrey was injured when the car in which she was a passenger was struck by another car. State Farm insured the driver of the car in which Humphrey was a passenger. Humphrey had an automobile insurance policy with Vermont Mutual. She brought suit to enforce uninsured/underinsured motorist (UM/UIM) provisions in both the Vermont Mutual and the State Farm policies, because her damages exceeded the tortfeasor’s liability coverage. The superior court granted summary judgment to State Farm, ruling that the tortfeasor’s $100,000 liability payment nullifies State Farm’s primary UIM coverage of $50,000. We affirm.
State Farm Mutual Auto Insurance Co. v. Powers, 169 Vt. 230, 732 A.2d 730 (1999) endorsed the majority view that the offset applies first to the primary coverage. Id. at 240-41, 732 A.2d at 737-38. Vermont Mutual urges us instead to prorate the $100,000 credit. By their proposed allocation method, they would receive the proportion of the credit that their UIM coverage bears to the total UIM coverage, or roughly $86,000 of the $100,000 offset in this case. Vermont Mutual argues that our decision in Powers does not control and that public policy considerations favor pro rata allocation. We reject these arguments.
Powers decided that the insurer providing primary UM/UIM coverage is entitled to offset its coverage with any payment obtained from the tortfeasor. Vermont Mutual’s fairness argument—that it should be rewarded with a greater portion of the offset because it assumed a higher risk in issuing a higher limit policy—is without merit. The denial of any offset to the excess insurer is a logical corollary to the lack of risk it faces until the primary policy is exhausted.
In order to be fair, in this context, we need only be consistent. Consistency allows insurers to accurately assess the risk associated with the policies they issue. Our decision that the insurer who stands first in line to pay should also stand first in line to collect is consistent with Powers and with the majority of jurisdictions that have addressed the issue.
We explicitly hold today that primary UM/UIM insurers are entitled to offset their coverage by the full amount of a tortfeasor’s liability payment. Any remaining offset inures to the excess insurer’s benefit.
Thursday, May 28, 2009
Friday, May 8, 2009
Wrongful death of a cat: no damages for lost companionship or emotional distress.
Goodby v. Vetpharm, 2009 VT 52 (Burgess, J.)
This case presents two questions: first, whether noneconomic damages are available when a pet dies due to negligent or wanton acts of veterinarians and a pharmaceutical company; second, whether a claim for negligent infliction of emotional distress lies for the death of a pet when its human companion was not within any so-called zone of danger at the time of the mishap. We answer both questions in the negative and affirm the superior court’s order of dismissal.
Plaintiffs recognize that the common law generally treats animals as personal property. We have said that the measure governing damages to personal property is the property’s “fair market value before the injury less fair market value after the injury.” That there may be a different or more appropriate measure of damages for the tangible loss of pets due to the negligence of others—a measure based on the particular pet’s value to its owner, not simply its value to a stranger in the market—need not be considered here, since plaintiffs effectively waived that claim by dismissing all claims for general damages in favor of preserving only claims for their lost companionship and emotional distress resulting from the death of their pets.
Plaintiffs and amicus Animal Legal Defense Fund urge us to adopt the view that companion animals are more properly considered as family members than personal property, so that recovery for noneconomic damage occasioned by their loss should be similarly available as for the wrongful death of next of kin. Plaintiffs fail to demonstrate a compelling reason why, as a matter of public policy, the law should offer broader compensation for the loss of a pet than would be available for the loss of a friend, relative, work animal, heirloom, or memento—all of which can be prized beyond measure, but for which this state’s law does not recognize recovery for sentimental loss. We are not persuaded that a special exception to recover noneconomic damages for the loss of companion animals occasioned by negligence should be undertaken outside of the legislative arena.
To be in the “zone of danger,” the plaintiff must be within the zone of an act negligently directed at him by defendant. Further, recovery for negligent infliction of emotional distress is precluded where the claimant does not allege “any reasonable fear for [his or her] own safety. The facts alleged in this case do not satisfy these standards. Administering the pills to the cats placed plaintiffs in no fear for their own safety, and were not acts “directed at” plaintiffs, but rather at their pets. Therefore, we also affirm the trial court’s decision to dismiss the negligent infliction of emotional distress claim.
Affirmed.
This case presents two questions: first, whether noneconomic damages are available when a pet dies due to negligent or wanton acts of veterinarians and a pharmaceutical company; second, whether a claim for negligent infliction of emotional distress lies for the death of a pet when its human companion was not within any so-called zone of danger at the time of the mishap. We answer both questions in the negative and affirm the superior court’s order of dismissal.
Plaintiffs recognize that the common law generally treats animals as personal property. We have said that the measure governing damages to personal property is the property’s “fair market value before the injury less fair market value after the injury.” That there may be a different or more appropriate measure of damages for the tangible loss of pets due to the negligence of others—a measure based on the particular pet’s value to its owner, not simply its value to a stranger in the market—need not be considered here, since plaintiffs effectively waived that claim by dismissing all claims for general damages in favor of preserving only claims for their lost companionship and emotional distress resulting from the death of their pets.
Plaintiffs and amicus Animal Legal Defense Fund urge us to adopt the view that companion animals are more properly considered as family members than personal property, so that recovery for noneconomic damage occasioned by their loss should be similarly available as for the wrongful death of next of kin. Plaintiffs fail to demonstrate a compelling reason why, as a matter of public policy, the law should offer broader compensation for the loss of a pet than would be available for the loss of a friend, relative, work animal, heirloom, or memento—all of which can be prized beyond measure, but for which this state’s law does not recognize recovery for sentimental loss. We are not persuaded that a special exception to recover noneconomic damages for the loss of companion animals occasioned by negligence should be undertaken outside of the legislative arena.
To be in the “zone of danger,” the plaintiff must be within the zone of an act negligently directed at him by defendant. Further, recovery for negligent infliction of emotional distress is precluded where the claimant does not allege “any reasonable fear for [his or her] own safety. The facts alleged in this case do not satisfy these standards. Administering the pills to the cats placed plaintiffs in no fear for their own safety, and were not acts “directed at” plaintiffs, but rather at their pets. Therefore, we also affirm the trial court’s decision to dismiss the negligent infliction of emotional distress claim.
Affirmed.
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