Christensen v. Wausau Insurance Companies

WEANT, Judge. Appellant, Wayne Christensen, alleges that on 5 March 1984 he was seriously injured when hit by a vehicle driven by Gerd W. Herrmann. The Maryland Automobile Insurance Fund (MAIF), Herrmann’s insurer, paid Christensen $20,000 in settlement, the maximum available under Herrmann’s policy. ⁶⁹⁸ Christensen, alleging that his damages exceed the amount paid to him by MAIF, turned to his insurer, appellee (Wausau), to make up the difference. In appellant’s policy is the mandatory “uninsured motorist” (UM) coverage along with another endorsement called “underinsured motorist” (UIM) coverage.

Appellant’s policy declarations page shows, among other things, these coverages: Coverages Limits of Liability Premium UNINSURED MOTORIST (BI) $20,000 EA. PERSON $40,000 EA. ACC PROPERTY DAMAGE $10,000 LESS $100 DEDUCTIBLE UNDERINSURED MOTORIST $20,000 EA. PERSON $40,000 EA.

ACC $6.00 Appellant contends that Herrmann was an UIM and therefore appellant has a right to try to recover damages against his own insurer. He sued Wausau for declaratory relief in the Circuit Court for Baltimore County relying on the UIM coverage in his policy. All of the facts necessary to establish the liability of Herrmann were stipulated at the hearing so that the court could address the narrow issue: “... whether there can be any recovery of an amount against Wausau on the theory that Herrmann was an Underinsured Motorist, which is mentioned on the policy declaration page, but is nowhere interpreted or referred to anywhere else in the policy____” The trial court held that appellant has no right to recover against his insurance company based on the UIM endorsement. From that decision this appeal was taken.

Appellant frames his one issue in this fashion: Whether the trial judge erred in holding that Wausau was not liable for Underinsured Motorist coverage under the terms of Christensen’s liability insurance policy. Neither in the policy, nor in Maryland statutory or case law, is UIM defined. Appellant urges us to interpret UIM coverage to mean that Wausau will make up the difference in damages to its ⁶⁹⁹ insured (up to the amount of UIM coverage bought by the insured) when the tortfeasor’s liability insurance limits are inadequate to compensate the insured fully. Appellee wants us to adopt a definition that would prevent appellant from recovering anything by way of the UIM endorsement.

Appellee’s proposed definition involves calculating the payment that it might owe appellant by subtracting the amount of the tortfeasor’s liability coverage (in this case $20,000) from the limits of appellant’s UIM coverage ($20,000). Appellee directs us to the case of Elovich v. Nationwide Insurance Co., 104 Wash.2d 543 , 707 P.2d 1319, 1323 (1985), which describes this method of defining the term as a “decreasing layer coverage as against the floating layer coverage” urged upon us by appellant. Appellee seems to argue that under the Maryland law UM and UIM have the same meaning. As the Court said in Simonette v. Great American Insurance Co., 165 Conn. 466 , 338 A.2d 453, 455 (1973), however, “ ‘Uninsured’ clearly is not the same as ‘underinsured’ and ‘[a] court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity, and words do not become ambiguous simply because lawyers or laymen contended for different meanings’ ’’ (quoting Marcolini v. Allstate Ins.

Co., 160 Conn. 280 , 278 A.2d 796 (1971)). The adoption of appellee’s contention would appear to make Wausau’s inclusion of both terms in the coverages, manifested by the policy declarations page of the insurance contract, an exercise in futility. It appears obvious to us that the tortfeasor is underinsured when his automobile liability insurance coverage fails to cover the actual amount of damages sustained by the insured, in this instance, Wayne Christensen. In the case sub judice, the use of the terms UM and UIM on