"SIMILAR"
INSURANCE IN UM COVERAGE REFERS TO TYPE, NOT AMOUNT
In a case where the insured is injured by an
uninsured motorist while driving a car owned by another person with
$50,000 of UM coverage, and the insured has his own $100,000 of UM
coverage, the insured may recover up to $100,000 in UM benefits and his
own insurer’s share of the benefits would be two thirds of the $100,000
if its policy limited its contribution to a pro-rata share of all UM
benefits available. This is
because the insured has his own $100,000 in UM coverage out of a total
$150,000 from all UM benefits available.
However, if the insured’s own UM policy does not
contain a pro-rata limitation, insurers have long argued that the insured
would not have any UM coverage under his own policy because under
Insurance Code section 11580.2(c)(2), his own UM coverage was
“similar” to that available under the owner’s UM coverage, so as to
prevent the insured from obtaining a double recovery from both UM
insurers.
On January 30, 2001, the Third Appellate District of
the Court of Appeal held that the owner’s lower UM coverage was not
“similar” to the insured’s own higher UM coverage, and the
insured’s own UM coverage would be applicable.
In Cal Farm Ins. Co. v. Wolf (2001) 01 CDOS 904, an insured
was injured by an uninsured motorist while riding in a car owned by
another person with only $30,000 in UM coverage.
The insured had $100,000 of UM coverage under his own policy.
The insured suffered $120,000 in damages.
The court held that the owner’s UM policy was not “similar”
insurance to the insured’s own $100,000 in UM coverage, making the
insured’s own UM coverage responsible for a pro-rata share of the UM
benefits to be recovered by the insured.
The court held that the Insurance Code
requirement of “similar” insurance referred to the type of coverage
rather than the amount of UM coverage.
