In Nevada, in determining as to whether a claim of injury is covered by the uninsured provision of an insurance policy depends on the interpretation of the uninsured provision. The court will look at the insurance contract in determining what individuals are covered in the provision and what injuries the individual may recover. Further, unless an uninsured motorist provision specifies that punitive damages will be included, punitive damages are not covered in an uninsured motorist provision.
In Allstate, the court determined that the underinsured provision was unambiguous in that it only limited recovery to the injured insureds. Allstate Ins. Co. v. Fackett, 125 Nev. 132, 137; 206 P.3d 572, 575 (2009). Barbara Testa was a fault-free passenger in a vehicle and ultimately passed from her injuries. Id. at 135; 574. Respondent, Deborah Fackett, was Ms. Testa’s daughter. The insurance policy stated that Allstate would pay the damages an insured is entitled to recover from the owner or operator of an uninsured auto because of bodily injury sustained. Id. Ms. Fackett argued that she was entitled to a wrongful death action against the driver of the other vehicle; therefore, as the insured, she was entitled to the underinsured benefits for the death of her mother, Ms. Testa. Fackett agreed that she was not injured in the accident.
The court ruled in favor of Allstate. The court determined that the uninsured provision of the policy was unambiguous and comports with the plain language of Nevada’s uninsured statutory scheme, therefore it is enforceable. The insurance policy was unambiguous in that it provided coverage to the insured only for bodily injuries sustained as a result of an accident. Fackett was not entitled to damages for the death of her mother, because, the death of her mother was not “bodily injury” of the insured, Fackett.
Further, punitive damages are only included if set forth within the uninsured provision and in no way are punitive damages within the definition of bodily injury. In Siggelkow, the uninsured provision provided that the company “will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured highway vehicle because of bodily injury sustained by the insured.” Siggelkow v. Phoenix Ins. Co., 109 Nev. 42, 44, 846 P.2d 303, 304 (1993).Siggelkow argued that the provision sets forth that the company “will pay all sums” legally entitled to from the uninsured individual. Id. The court ruled that punitive damages are not covered in the uninsured motorist provision because: (a) requiring an innocent party (insurance company) to pay punitive damages circumvents the purpose of punitive damages; and (b) allowing punitive damages to be covered in an uninsured provision would “distort the plain meaning of the uninsured motorist provision limiting coverage to ‘bodily injury only'” because “under no construction can the language ‘for bodily injury’ be read to include punitive damages.” Id. (citing State Farm Mut. Ins. Co. v. Belvins, 49 Ohio St.3d 165, 551 N.E.2d 955, 959 (1990). As such, the only way an insured can obtain punitive damages through its carrier from an uninsured provision is if the uninsured provision sets forth that punitive damages are included.
Melissa Bright is an Associate with Kring & Chung, LLP‘s Las Vegas, NV office. She can be reached at (702) 260-9500 or [email protected].