This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Atlantic Mutual Companies,
Filed December 24, 2002
Hennepin County District Court
File No. PI01005985
Frederick H. Pritzker, Peter H. Berge, Pritzker & Associates, 33 South Sixth Street, Suite 4520, Minneapolis, MN 55402 (for appellant),
Susan D. Thurmer, Cousineau, McGuire & Anderson, Chartered, 600 Travelers Express Tower, 1550 Utica Avenue South, Minneapolis, MN 55416-5318; and
Melinda S. Kollross, Amy Rich Paulus, Peter R. Ryndak, Ann C. Chalstrom, Clausen Miller P.C., 10 South LaSalle Street, Chicago, IL 60603 (for respondent).
Considered and decided by Anderson, Presiding Judge, Stoneburner, Judge, and Wright, Judge.
G. BARRY ANDERSON, Judge
This is an appeal from an order granting summary judgment in favor of respondent insurance company. Appellant claims to have met the burden of showing that the policy, which contained an umbrella endorsement, extended underinsured motorists’ coverage to appellant. The district court disagreed and granted respondent’s motion for summary judgment, concluding that the umbrella provision applies only to liability and not to underinsured motorists’ coverage. We affirm.
Appellant suffered serious injuries when struck by a car driven by an unrelated third-party. Appellant settled his personal injury claim against that third-party for $30,000, the liability limit of that individual’s insurance policy.
Appellant is an Atlantic Mutual policyholder, insured under the Atlantic Mutual Master Plan (“the policy”), a package containing several different coverages, including property, liability, and an umbrella endorsement. The policy’s terms include $300,000 for automobile liability, $300,000 for underinsured motorist (“UIM”) coverage, and $2,000,000 in umbrella coverage. Because the third party involved in the accident with appellant was an underinsured motorist, appellant received the full underinsured-motorist benefits of $300,000 from respondent.
The dispute here is whether the policy’s $2,000,000 umbrella endorsement applies to, and increases, the coverage limit of the underlying UIM coverage. Appellant filed a declaratory judgment action arguing that the umbrella endorsement provides $2,000,000 in UIM coverage above the $300,000 primary underinsured coverage already disbursed by respondent.
The parties filed cross motions for summary judgment. The district court granted respondent’s motion for summary judgment and denied appellant’s motion for partial summary judgment. This appeal followed.
The main issue before us is whether the district court correctly construed the insurance policy. On appeal from a summary judgment, we determine whether there are any genuine issues of material fact and whether the trial court erred in its application of the law. Betlach v. Wayzata Condominium, 281 N.W.2d 328, 330 (Minn. 1979). Because the parties do not dispute the material facts, this court will review the legal questions de novo and give no deference to the district court’s interpretation. See A.J. Chromy Const. Co. v. Commercial Mechanical Services, Inc., 260 N.W.2d 579, 582 (Minn. 1977). “Insurance coverage issues are questions of law for the court.” State Farm Ins. Co. v. Seefeld, 481 N.W.2d 62, 64 (Minn. 1992) (citation omitted).
Appellant has the initial burden of demonstrating that the umbrella endorsement provides coverage for his asserted claim. Domtar Inc. v. Niagara Fire Ins. Co., 563 N.W.2d 724, 736 (Minn. 1997). Appellant first argues that the express language of the Minnesota Umbrella Coverage Endorsement page indicates that respondent intended a broad extension of the existing UIM coverage. The endorsement that explains the scope of the umbrella states:
PERSONAL UMBRELLA COVERAGE
Your Personal Umbrella Coverage gives you and your family extra coverage against liability stemming from a disaster or other major accident. We call it your “umbrella” because it provides higher and wider protection than your regular liability coverage does. Your Personal Umbrella Coverage increases your insurance in two different ways:
· We add $ 1,000,000 or whatever is shown on the Coverages Page for Personal Umbrella Coverage to your liability coverage limit; and
· We provide coverage against more kinds of accidents no matter where they occur.
This coverage is over and above your other insurance. On your Coverages Page, you’ll find a Schedule of Underlying Insurance that describes your other liability policies. Any policy named on that schedule is considered underlying insurance.
Relying on language such as “more kinds of accidents” and “[t]his coverage is above and beyond your other insurance,” appellant argues that this endorsement grants additional umbrella coverage for UIM claims.
Appellant’s broad reading of this section fails to focus on the most important elements of the umbrella endorsement. The language in the umbrella endorsement is unambiguous. Read in context, the language simply describes the function of umbrella coverage. Thus, language such as “[the umbrella] provides higher and wider protection than your regular liability coverage does” and “coverage over and above your other insurance” (italics in original, bold emphasis added) does not establish or even hint that the umbrella language also extends UIM coverage. The umbrella endorsement further states that it provides “coverage against liability,” and that the coverage “provides higher and wider protection than your regular liability coverage does.” The coverage also directs insureds to “a Schedule of Underlying Insurance that describes your other liability policies.” (bold emphasis added). The repeated references to “liability,” combined with the absence of any mention of UIM, unambiguously demonstrates that the parties intended the umbrella endorsement to cover only liability claims.
Second, appellant argues that, later in this same section, the policy establishes that the umbrella endorsement extends to all “liability coverages” and implies that this is beyond what umbrella policies normally cover:
Your Personal Umbrella Coverage applies to accidents covered by another liability policy, whether or not it’s named on your Schedule of Underlying Insurance. We’ll pay the difference between your retained limit and an insured person’s total liability for:
· bodily injury;
· nonbodily injury; and
· property damage.
Your Personal Umbrella Coverage applies to additional kinds of accidents other than your regular liability coverage does. None of the exclusions described in any other part of your Atlantic Master Plan apply to this coverage. Your Personal Umbrella Coverage applies to any kind of accident.
(italics in original). Appellant claims if the policy classifies UIM as “liability coverage,” the UIM coverage is effectively extended by this language.
“Liability coverage” is an undefined term in the policy. Appellant argues that this absence naturally leads insureds to look at the structure of the policy to determine if the policy characterizes UIM as “liability coverage.” The Minnesota endorsement and Part III of the policy, for example, are set out as follows:
PART III:YOUR LIABILITY COVERAGE
UNINSURED/UNDERINSURED MOTORISTS’ COVERAGE
Appellant argues that the placement of “UNINSURED/UNDERINSURED MOTORISTS’ COVERAGE” directly below “YOUR LIABILITY COVERAGE,” reflects respondent’s intent to include UIM as “liability coverage” and, thus, within the scope of the umbrella. But creative arguments about the appearance of the policy are no substitute for the actual language of the insurance contract. The repeated references to liability throughout the policy, and the absence of any direct language clearly placing UIM coverage within the umbrella endorsement, leads inevitably to the conclusion that appellant’s argument about the structure of the policy fails.
We also agree with respondent that the policy, when read as a whole, distinguishes between UIM and liability coverages. Liability coverage provides protection where the insurer pays damages to a third-party who the insured has injured. Although “liability” is undefined in the policy, it is explained under “PART III: YOUR LIABILITY COVERAGE.” In that section, the policy states:
[t]his part of your Atlantic Master Plan covers you and your family against financial loss if any of you accidentally hurts someone or damages their property * * * we’ll pay damages for which you are legally liable for * * * We’ll pay money an insured person is legally obligated to pay as damages * * * .
(bold emphasis added).
In contrast, UIM coverage compensates insureds for damages suffered as a result of the actions of an underinsured third-party tortfeasor. UIM coverage is described by the “Uninsured/Underinsured Motorists’ Coverage” section of the policy. This provision states:
[w]e will pay compensatory damages which an insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle or underinsured motor vehicle because of bodily injury.
Respondent correctly asserts that liability and UIM coverage are not synonymous in the Atlantic Mutual policy and the umbrella endorsement. Minnesota law also recognizes the general differences between liability and UIM insurance. In State Farm Mut. Auto. Ins. Co. v. Levinson, 438 N.W.2d 110 (Minn. App. 1989), this court found that a personal umbrella policy did not provide UIM coverage. Id. at 115-16. Furthermore, Levinson held that an umbrella policy is a third-party insurance contract that does not include UIM coverage unless the parties expressly contract for it or anticipate that it would be included. Id.
Here, we conclude the umbrella endorsement did not expressly include UIM coverage. The unambiguous manner in which the policy and umbrella endorsement discuss liability coverage and UIM emphasizes that the parties intended different coverages. The cases cited by respondent and the district court are not directly relevant to the precise language at issue here. Like those cases, however, the language of the umbrella endorsement here unambiguously extends coverage only to liability claims.
 Numerous cases from other jurisdictions also demonstrate the differences between UIM and liability coverages—that umbrella coverages usually do not supplement UM/UIM policies. See, e.g., O’Hanlon v. Hartford Accident and Indemnity Co., 639 F.2d 1019 (3d. Cir. 1981) (umbrella policies are not within Delaware uninsured motorist statute); Trinity Universal Ins. Co. v. Metzger, 360 So.2d 961 (Ala. 1978) (umbrella policy is intended as “excess insurance to protect against catastrophic judgments”); Freese v. Bituminous Casualty Corp., 549 N.W.2d 525 (Ia. 1996) (umbrella coverage, unlike uninsured motorist coverage, applies to “amounts of damages for which the insured is legally liable”); Moser v. Liberty Mut. Ins. Co., 731 P.2d 406 (Okla. 1987) (mandatory uninsured motorist coverage did not apply to umbrella policy designed to provide excess liability coverage to the insured); Muelenbein v. West Bend Mut. Ins. Co., 499 N.W.2d 233 (Wis. Ct. App. 1993) (underinsured motorist claim was not covered by umbrella policy).
 We recognize that the parties could contract for UIM coverage under the umbrella provision. Indeed, respondent provides umbrella coverage for both liability and UI/UIM if the Coverages Page explicitly notes it and the insured has requested such coverage. There is no evidence here that appellant requested UIM umbrella coverage or that respondent wrote such a policy.