Progressive Cas. Ins. Co. v. Ewart

2007 UT 52
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Progressive Casualty Insurance No. 20060055
Company,
Plaintiff and Appellee,
v.
Mitchell Ewart and Heather F I L E D
Ewart,
Defendants and Appellants. July 17, 2007
---
Third District, Salt Lake
The Honorable J. Dennis Frederick
No. 050903622
Attorneys: Joseph J. Joyce, Ryan J. Schriever, Salt Lake City,
for plaintiff
Roger H. Hoole, Salt Lake City, for defendants
---
DURRANT, Justice:
INTRODUCTION
¶1 In this case we are called upon to consider the
mandatory liability coverage obligations of automobile insurers
with respect to loss of consortium claims. Utah law mandates
minimum liability limits for bodily injuries sustained in motor
vehicle accidents. We acknowledge that loss of consortium is a
liability imposed by law, but hold that where a loss of
consortium claim is not a claim for a bodily injury, it is not
subject to the minimum liability limits imposed upon insurers for
bodily injury claims.
BACKGROUND
¶2 When we review a district court’s grant of summary
judgment, “we view the facts and all reasonable inferences drawn

1 Carrier v. Salt Lake County, 2004 UT 98, ¶ 3, 104 P.3d
1208.
No. 20060055 2
therefrom in the light most favorable to the nonmoving party.”1
We present the facts of this case accordingly.
¶3 In 2001 Mitchell Ewart was in an automobile collision
with Richard Kunz. Mr. Ewart sustained a back injury and
incurred medical expenses exceeding $25,000. Mr. Ewart’s injury
left him disabled, rendered him unable to perform the types of
jobs he performed prior to the accident, and significantly
changed his lifestyle.
¶4 At the time of the accident, Mr. Kunz was covered by
liability insurance under a policy issued by Progressive Casualty
Insurance Company (“Progressive”). This policy provided him with
liability coverage of $25,000 for bodily injuries to a single
person, and $50,000 for bodily injuries to more than one person.
Mr. Ewart filed a claim with Progressive for the injury he
sustained in the accident as a result of Mr. Kunz’s negligence.
Also, Mr. Ewart’s wife, Heather Ewart, who was not in the car at
the time of the accident, filed a claim for loss of consortium.
¶5 Progressive offered to settle Mr. Ewart’s claim for the
$25,000 single person policy limit. In so doing, however,
Progressive refused to cover Mrs. Ewart’s loss of consortium
claim and required her signature releasing that claim on
Mr. Ewart’s settlement agreement. Both Mr. and Mrs. Ewart
declined to sign the settlement agreement.
¶6 Progressive filed this action for declaratory relief,
asking the district court to declare that it had no duty to
provide an additional $25,000 of coverage for Mrs. Ewart’s loss
of consortium claim over and above the single person liability
limit of $25,000 for Mr. Ewart’s injury claim. Progressive
argued that the total limit of liability coverage for the Ewarts’
claims should be $25,000 because both claims arise out of a
bodily injury sustained by one person, Mr. Ewart. The Ewarts
contended that Progressive was required to provide Mr. Ewart with
a single person liability limit of $25,000 to cover his bodily
injury claim and a separate $25,000 liability limit to Mrs. Ewart
to cover her loss of consortium claim.
¶7 The parties filed cross-motions for summary judgment.
The district court granted summary judgment in favor of
Progressive, concluding that “the language in the Progressive
policy is unambiguous and provides a maximum of $25,000 for
bodily injuries sustained by one person, regardless of the number

2 Johnson v. Hermes Assocs., Ltd., 2005 UT 82, ¶ 12, 128
P.3d 1151.
3 Utah Code Ann. § 30-2-11(2) (2005).
4 Id. § 30-2-11(1)(a).
3 No. 20060055
of separate claims being made.” In addition, the district court
stated that “Utah law does not require an insured to provide
separate policy limits for loss of consortium claims.”
¶8 The Ewarts appeal the district court’s decision. We
have jurisdiction pursuant to Utah Code section 78-2-2(3)(j).
STANDARD OF REVIEW
¶9 This case comes to us on a challenge to a summary
judgment. We therefore review the district court’s ruling for
correctness without according deference to its legal
conclusions.2
ANALYSIS
¶10 In 1997 the Utah Legislature enacted Utah Code section
30-2-11 (“Loss of Consortium Act” or the “Act”). The Loss of
Consortium Act provides that “[t]he spouse of a person injured by
a third party . . . may maintain an action against the third
party to recover for loss of consortium.”3 For purposes of the
Act,
“injury” or “injured” means a significant
permanent injury to a person that
substantially changes that person’s lifestyle
and includes the following:
(i) a partial or complete paralysis of
one or more of the extremities;
(ii) significant disfigurement; or
(iii) incapability of the person of
performing the types of jobs the person
performed before the injury.4
The Act further provides that “[t]he spouse’s action for loss of
consortium: (a) shall be derivative from the cause of action in

5 Id. § 30-2-11(5).
6 Farmers Ins. Exch. v. Versaw, 2004 UT 73, ¶ 16, 99 P.3d
796.
No. 20060055 4
behalf of the injured person; and (b) may not exist in cases
where the injured person would not have a cause of action.”5
¶11 In the case at hand, Mrs. Ewart’s loss of consortium
claim stems from the injury her husband sustained in the accident
with Mr. Kunz. She characterizes her claim as a loss of
financial support because her husband’s injury left him incapable
of performing the types of jobs he performed prior to the
accident. The parties do not dispute that the Loss of Consortium
Act creates a liability imposed by law for damages or that
Mrs. Ewart has a claim for loss of consortium against Mr. Kunz.
They dispute, however, whether a minimum amount of coverage is
mandated for that claim under the motor vehicle insurance
provisions of Utah’s Insurance Code.
¶12 While the first step in an analysis involving an
insurance policy is generally to look for ambiguity in the
policy, the parties here have stipulated that the policy is
unambiguous. The question for our determination, then, is not
what the policy provides, but what coverage is statutorily
mandated. Because the Ewarts concede that, under the terms of
the policy, Mrs. Ewart’s loss of consortium claim falls under the
single person limit applicable to Mr. Ewart, the specific issue
before us is whether Utah law imposes an obligation on insurers
to provide a separate liability limit for loss of consortium
claims. We first describe the relevant statutes and explore the
parties’ arguments with respect to them. Next, we engage in a
plain language analysis of the statutory language in dispute and
find that the language specifies minimum liability coverage
limits based on the number of bodily injuries or deaths arising
from an accident, not the number of claims. As such, we conclude
that Mrs. Ewart’s loss of consortium claim does not have its own
liability limit separate from the limit applicable to her
husband’s bodily injury claim.
I. UTAH LAW REQUIRES INSURANCE COMPANIES TO PROVIDE MOTOR
VEHICLE LIABILITY COVERAGE WITH MINIMUM MANDATORY LIMITS
¶13 We have previously noted the “labyrinthine framework of
our laws relating to automobile insurance”;6 the statutory
provisions at issue in this case involve that very labyrinth.
Utah law requires that “every resident owner of a motor vehicle
shall maintain owner’s or operator’s security in effect at any

7 Utah Code Ann. § 41-12a-301(2)(a) (2005).
8 Id. § 31A-22-302(1)(a).
9 Id. § 31A-22-303(1)(a)(ii)(A).
5 No. 20060055
time that the motor vehicle is operated.”7 And the insurance
policy purchased by an owner to satisfy this requirement must
include “motor vehicle liability coverage under Sections
31A-22-303 and 31A-22-304.”8 Section 31A-22-303 requires a
policy to “insure . . . against loss from the liability imposed
by law for damages arising out of the . . . use of . . . motor
vehicles.”9 Section 31A-22-304, in turn, mandates minimum limits
for a motor vehicle policy:
Policies containing motor vehicle liability
coverage may not limit the insurer’s
liability under that coverage below the
following:
(1)(a) $25,000 because of liability for
bodily injury to or death of one person,
arising out of the use of a motor
vehicle in any one accident;
(b) subject to the limit for one
person in Subsection (a), in the amount
of $50,000 because of liability for
bodily injury to or death of two or more
persons arising out of the use of a
motor vehicle in any one accident; and
(c) in the amount of $15,000 because
of liability for injury to, or
destruction of, property of others
arising out of the use of a motor
vehicle in any one accident; or
(2) $65,000 in any one accident whether
arising from bodily injury to or the
death of others, or from destruction of,
or damage to, the property of others.
¶14 Section 31A-22-304 is at the heart of the dispute. The
Ewarts argue that loss of consortium is a liability imposed by
law that is necessarily covered by section 31A-22-303. As a
result, they urge that Mrs. Ewart’s loss of consortium claim must
be covered by its own liability limit of $25,000 over and above

10 Li v. Enter. Rent-A-Car Co., 2006 UT 80, ¶ 9, 150 P.3d
471.
11 Id.
12 Fla. Asset Fin. Corp. v. Utah Labor Comm’n, 2006 UT 58,
¶ 9, 147 P.3d 1189.
No. 20060055 6
the $25,000 liability limit covering Mr. Ewart’s bodily injury
claim. They argue that the term “bodily injury” in section
31A-22-304 should be broadly construed such that it provides
minimal coverage for all injuries, including loss of consortium,
that arise out of motor vehicle accidents. Otherwise limiting
the definition of “bodily injury,” they contend, would have the
absurd result of excluding certain types of injuries, such as
emotional and psychological injuries, from liability coverage.
¶15 In contrast, Progressive argues for a plain language
reading of section 31A-22-304. Under the plain language of the
statute, it contends, the minimum mandatory liability limits are
defined relative to the number of bodily injuries that result
from a motor vehicle accident, not the number of claims that
arise from it. Progressive argues that a loss of consortium
claim is not a claim for a “bodily injury”; as such, it is not
subject to the minimum mandatory liability limits imposed by the
statute, and Progressive need not provide a separate liability
limit for Mrs. Ewart’s loss of consortium claim.
II. UTAH’S MINIMUM MANDATORY LIMITS FOR LIABILITY COVERAGE ARE
TIED TO THE NUMBER OF BODILY INJURIES OR DEATHS SUSTAINED IN A
MOTOR VEHICLE ACCIDENT, NOT THE NUMBER OF CLAIMS THAT ARISE FROM
IT
¶16 When interpreting a statute, we turn to standard canons
of statutory construction. In so doing, our primary goal is to
give effect to the legislature’s intent.10 We first look to the
plain language of the statute and give effect to that language
unless it is ambiguous.11 Only where that language is ambiguous
do we consult other sources for its meaning.12
¶17 The plain language of Utah Code section 31A-22-304 ties
the mandatory liability coverage obligation of insurers to the
number of persons who sustain a bodily injury or die in an
accident involving a motor vehicle. When that number is one, the
statute mandates liability coverage of at least $25,000; when

13 Utah Code Ann. § 31A-22-304(1) (2005).
14 “Bodily” is defined as “of or relating to the body,” and
“body” is defined as “the material part or nature of a human
being.” Merriam-Webster’s Collegiate Dictionary 128 (10th ed.
1998). Black’s Law Dictionary defines “bodily injury” as
“[p]hysical damage to a person’s body.” Black’s Law Dictionary
801 (8th ed. 2004).
15 The question of whether claims for emotional or
psychological injuries, such as a claim for the infliction of
emotional distress, are claims for a “bodily injury” is not
before us. Therefore, we decline to consider whether the
Legislature intended to require mandatory coverage for such
injuries in its statutory scheme. We note, however, that
(continued...)
7 No. 20060055
that number is two or more, the statute mandates minimum coverage
of at least $50,000.13
¶18 Because the Ewarts concede that Mr. Kunz’s “policy
provides him the protection of only a single person policy
limit,” Mrs. Ewart is entitled to her own policy limit only if
the statute requires separate coverage for loss of consortium,
which it clearly does not. Mrs. Ewart’s claim is not one for
bodily injury but one for loss of consortium characterized as a
loss of financial support; this is not a claim for which a
separate minimum liability limit is required under section
31A-22-304. Any damages that flow to Mrs. Ewart from her
husband’s bodily injury fall under the limit applicable to her
husband--the person who sustained the bodily injury.
Mrs. Ewart’s claim is therefore included within the $25,000
liability coverage for bodily injury to one person, and it does
not have a separate limit of its own.
¶19 “Bodily injury” should not be construed broadly enough
to encompass a loss of consortium claim as the Ewarts would have
us conclude. First, “bodily” is commonly understood to refer to,
simply, the “body,”14 and Mrs. Ewart’s loss of consortium claim
in no way involves a bodily injury to her. Second, construing
“bodily injury” broadly enough to include a loss of consortium
claim would, essentially, require us to read the term “bodily”
out of the statute altogether. The fact is, the Legislature
imposed minimum liability coverage obligations in section
31A-22-304 with respect to bodily injury and property injury.
The statute does not speak of other categories of injury, and we
will not deem the Legislature’s use of the modifier “bodily” in
section 31A-22-304 inadvertent.15 Should the Legislature wish to

15 (...continued)
Progressive acknowledged during oral argument that its practice
is to cover claims for the infliction of emotional distress with
a separate liability limit under section 31A-22-304.
No. 20060055 8
extend the minimum mandatory coverage limits to include claims
for nonbodily injuries such as loss of consortium, it is, of
course, free to do so.
CONCLUSION
¶20 We hold that the mandatory liability coverage
obligation in Utah Code section 31A-22-304 is tied to the number
of persons who sustain a bodily injury or die in an accident
involving a motor vehicle, not the number of claims that arise
from that accident. Because Mrs. Ewart’s loss of consortium
claim arises from the injury suffered by her husband and does not
involve a bodily injury to her, her claim is subject to a single
$25,000 limit and does not have its own $25,000 limit over and
above that covering her husband’s claim. Affirmed.
---
¶21 Associate Chief Justice Wilkins and Justice Nehring
concur in Justice Durrant’s opinion.
---
DURHAM, Chief Justice, dissenting:
¶22 I respectfully dissent. I believe that the legislature
imposed an obligation on insurers to provide minimum mandatory
coverage for a spouse’s separate loss of consortium claim. Thus,
I disagree with the majority’s holding that the single person
mandatory limit of $25,000 is all the coverage that is required
for both Mr. Ewart’s claims and Mrs. Ewart’s separate loss of
consortium claim.
¶23 The legislature has specifically provided for a
separate loss of consortium claim by the spouse of a person
suffering a “significant permanent injury.” Utah Code Ann.
§ 30-2-11(1)(a) (Supp. 2006). In statutorily creating a cause of
action for loss of consortium, the legislature recognized that
when a person suffers a significant permanent injury, the spouse
of that injured person has a separate and distinct injury due to
the loss of marital benefits. See Hackford v. Utah Power & Light
Co., 740 P.2d 1281, 1290, 1292 (Utah 1987) (Durham, J.,
dissenting).

9 No. 20060055
¶24 The legislature has mandated motor vehicle insurance
coverage “against loss from the liability imposed by law for
damages arising out of the . . . use of . . . motor vehicles.”
Utah Code Ann. § 31A-22-303(1)(a)(ii)(A) (2005). It is
uncontested that loss of consortium is a “liability imposed by
law.” Farmers Ins. Exch. v. Versaw, 2004 UT 73, ¶ 19, 99 P.3d
796. Thus, I conclude that by providing for the loss of
consortium cause of action and by mandating insurance coverage
for liabilities imposed by law, the legislature intended separate
coverage by insurers for loss of consortium claims. I do not
believe the legislature intended to require a person with
significant permanent injury to share a single person policy
limit with his or her spouse suffering loss of consortium.
¶25 The legislature, in enacting the loss of consortium
statute, evidenced its ability to limit the available recovery as
the majority does today. However, the legislature did not limit
loss of consortium claims to a single person policy limit in the
motor vehicle insurance arena as it did in other fields. First,
the legislature explicitly provided for single person coverage
limits to apply against governmental entities. Utah Code Ann.
§ 30-2-11(8) (Supp. 2006) (limiting damage awards against
“governmental entit[ies]” to “not exceed the liability limit for
one person in any one occurrence”). Second, the legislature
clearly limited coverage for loss of consortium claims to that
coverage available to the injured spouse for general damages.
The legislature required that the separate claims of the injured
party for general damages and the spouse’s loss of consortium
claim be combined in order to “not exceed any applicable
statutory limit on noneconomic damages, including [noneconomic
damages in malpractice actions].” Id. § 30-2-11(7). Thus, the
legislature has limited coverage of a loss of consortium claim to
the minimum mandatory coverage available to the injured spouse
when it sees fit. It has not done so in the motor vehicle
insurance arena.
¶26 Further, Utah Code section 31A-22-304(1)(a) requires
minimum mandatory coverage of “$25,000 because of liability for
bodily injury to or death of one person, arising out of the use
of a motor vehicle in any one accident.” When there is “bodily
injury to . . . two or more persons,” minimum mandatory coverage
of $50,000 is required. Id. § 31A-22-304(1)(b) (2005). In my
opinion, the plain language of these provisions requires separate
coverage for the spouse’s loss of consortium claim. “Bodily
injury” should be construed broadly in the overall statutory
scheme and relates to causes of action for injuries arising from
the accident; it was not, in my view, intended to limit coverage
to only physical injuries, as opposed to “liabilit[ies] imposed

No. 20060055 10
by law.” Mrs. Ewart’s loss of consortium claim is a separate and
distinct injury. As noted previously, the legislature has not
attempted to limit coverage for loss of consortium claims in this
field. Progressive itself acknowledged in oral argument that it
routinely provides separate coverage under the “bodily injury”
provisions for claims for infliction of emotional distress, which
may not result in physical injury to the claimant. I believe
that the legislature did not intend to disregard injuries that
are liabilities imposed by law that may not result in actual
physical injury. The specific term “bodily injury,” in my view,
encompasses claims for loss of consortium, just as it would
include infliction of emotional distress. Minimum mandatory
coverage of $50,000 is required because of the distinct injuries
to two persons--Mr. Ewart and Mrs. Ewart. Mrs. Ewart has
suffered her own distinct injury, and I believe that the
structure of the statute is intended to cover all claims arising
out of the accident, including pain and suffering, infliction of
emotional distress, loss of consortium, and other nonphysical
injuries.
¶27 In creating a separate cause of action for loss of
consortium and requiring insurance coverage for liabilities
imposed by law, I believe the legislature intended the minimum
mandatory coverage amounts to encompass nonphysical injuries. We
have recognized that the public policy reflected in the
legislature’s enactment of minimum mandatory coverage is “‘to
protect innocent victims of automobile accidents.’” Li v. Enter.
Rent-A-Car Co., 2006 UT 80, ¶ 13, 150 P.3d 471 (quoting Speros v.
Fricke, 2004 UT 69, ¶ 42, 98 P.3d 28). Mrs. Ewart, whose spouse
was significantly injured in this case, is one such innocent
victim of the accident, and the legislature intended to protect
her with minimum mandatory coverage. In sum, I believe the
legislature has imposed an obligation on insurers to provide
separate minimum mandatory coverage for the loss of consortium
claim of the spouse of an injured person.
---
¶28 Justice Parrish concurs in Chief Justice Durham’s
dissenting opinion.