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Day v. Allstate Ins. Co.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 278
Docket:	Pis-98-223
Submitted
on Briefs:	November 17, 1998
Decided:	December 24, 1998

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.

FRANK DAY et al.

v.

ALLSTATE INSURANCE COMPANY

DANA, J.

	[¶1]  Frank and Mary Day appeal from a summary judgment entered in
the Superior Court (Piscataquis County, Mead, J.) contending that the court
erred when it held that William McLaughlin was not an underinsured
operator pursuant to 24-A M.R.S.A. § 2902 (1990 & Supp. 1998).{1}  We
disagree and affirm the judgment. 
	[¶2]  The Days suffered serious injuries when their car was struck by a
truck driven by McLaughlin.  McLaughlin died in the accident, and his wife,
a passenger in his truck, was injured.  York Mutual Insurance Group (York)
insured McLaughlin pursuant to a combined single limit policy of $100,000. 
Allstate insured the Days pursuant to a policy with uninsured vehicle
coverage with limits of $50,000 per person and $100,000 per accident. 
Pursuant to a settlement agreement, York agreed to pay each of the Days
$42,260, plus $10,000 for damage to their car.  York also paid McLaughlin's
wife $5,400 for her injuries. 
	[¶3]  The Days brought a complaint against Allstate for underinsured
motorist benefits, and both parties moved for a summary judgment.  The
court granted a summary judgment in favor of Allstate, concluding that
McLaughlin was not underinsured because the Days' per accident coverage
of $100,000 was equal to McLaughlin's combined single limit of $100,000. 
The Days appealed.  
	[¶4]  The trial court shall enter a summary judgment "if the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, referred to in the statements required by [M.R. Civ.
P.] 7(d) show that there is no genuine issue as to any material fact set forth
in those statements and that any party is entitled to a judgment as a matter
of law."  M.R. Civ. P. 56(c).  "On appeal from a grant of summary judgment,
we view the evidence in the light most favorable to the nonprevailing party,
and review the trial court decision for errors of law."  Greenvall v. Maine
Mutual Fire Ins. Co., 1998 ME 204, ¶ 5, 715 A.2d 949, 951.
	[¶5]  Maine law requires every motor vehicle policy to provide
coverage for persons insured pursuant to the policy for personal injuries
caused by an uninsured, underinsured, or hit-and-run motor vehicle
operator.  24-A M.R.S.A. § 2902(1) (1990 & Supp. 1998); Botting v. Allstate
Ins. Co., 1998 ME 58, ¶ 4, 707 A.2d 1319, 1321.  The statute defines an
"underinsured motor vehicle" as "a motor vehicle for which coverage is
provided, but in amounts less than the minimum limits for bodily injury
liability insurance provided for pursuant to the motorist's financial
responsibility laws of this State{2} or less than the limits of the injured party's
uninsured vehicle coverage."  24-A M.R.S.A. § 2902(1) (1990 & Supp.
1998).  The statute permits "the insured injured person the same recovery
which would have been available to him had the tortfeasor been insured to
the same extent as the injured party."  Botting, 1998 ME 58, ¶ 6, 707 A.2d
at 1321.  Where, as here, an insured has a split limit policy that provides for
a per person limit and a per accident limit, the court compares the face
amount of the per accident limit of the insured's policy with the face
amount of the tortfeasor's policy to determine if the tortfeasor is
underinsured.  See id.; McGillivray v. Royal Ins. Co., 675 A.2d 524, 526 (Me.
1996); Mullen v. Liberty Mutual Ins. Co., 589 A.2d 1275, 1277 (Me. 1991).
	[¶6]  The Days argue that the court must subtract the property damage
coverage required pursuant to 29-A M.R.S.A. § 1605 when determining if a
party is underinsured.  See 29-A M.R.S.A. § 1605(1)(C) (1996), amended by
P.L. 1997, ch. 176, § 5.  Because section 1605 provided that a motor vehicle
insurance policy must provide at least $10,000 for damage to property, the
Days argue that this reduces McLaughlin's combined single limit policy to
$90,000, thereby making McLaughlin "underinsured" and triggering
Allstate's duty to pay underinsured motorist benefits.  We disagree.
	[¶7]  To determine if a tortfeasor is underinsured, the court compares
the relevant face amounts recited on the insurance policies without
considering such factors as the amount of the insured's recovery from the
tortfeasor, the insured's actual damages, the number of other claimants, or
their recoveries.  See Botting, 1998 ME 58, ¶ 7, 707 A.2d at 1321-22;
Mullen, 589 A.2d at 1277.  In addition, there is nothing in the language of
section 2902 to support the Days' claim that the determination regarding
underinsurance must be made with reference to property damage coverage
required by section 1605.  See 24-A M.R.S.A. § 2902(2) (1990 & Supp.
1998); 29-A M.R.S.A. § 1605(1)(C) (1996), amended by P.L. 1997, ch. 176,
§ 5.  Accordingly, the required property damage coverage pursuant to
section 1605 should not be considered when determining if a tortfeasor is
underinsured.  The court, therefore, did not commit error when it held that
McLaughlin was not an underinsured motorist.
	The entry is:
					Judgment affirmed.
                                             
Attorney for plaintiffs:

Laurie Ann Miller, Esq.
Downeast Law Associates, P.A.
P O Box 190
Orrington, ME 04474

Attorney for defendant:

David P. Very, Esq.
Norman, Hanson & DeTroy
P O Box 4600
Portland, ME 04112-4600