This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Mary Arlene Pagel,
individually and as trustee for the next
of kin of Nicole Margaret Pagel, deceased,


State Farm Insurance Companies,


Filed August 12, 2003


Stoneburner, Judge


Washington County District Court

File No. C0021086


William D. Harper, Paul D. Peterson, Harper & Peterson, P.L.L.C., Suite 370, 6043 Hudson Road, Woodbury, MN 55125 (for appellant)


Kay Nord Hunt, Reid R. Lindquist, Lommen, Nelson, Cole & Stageberg, P.A., 1800 IDS Center, 80 South 8th Street, Minneapolis, MN 55402 (for respondent)


            Considered and decided by Minge, Presiding Judge, Harten, Judge, and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N


            Appellant challenges summary judgment granted to respondent State Farm Insurance Companies, insurer of decedent, declaring that underinsured-motorist coverage (UIM) under State Farm’s policy is not available to appellant because the UIM limits of that policy do not exceed UIM limits available to appellant under the insurance policy that covered the vehicle in which decedent was a passenger.  Because the district court did not err in this determination, we affirm.


Nicole Pagel (decedent) was a passenger in a vehicle driven by Jeffrey Johnson when it collided with a vehicle driven by Melanie Thurstin.  Decedent was fatally injured in the accident.  It was stipulated that both drivers were at fault.

The policy covering Johnson’s vehicle provided underinsured motorist (UIM) limits of up to $100,000 per person and $300,000 per occurrence.  The policy covering Thurstin’s vehicle did not provide UIM coverage.  The decedent was an insured under her parent’s policy with respondent, State Farm, which also had $100,000/$300,000 UIM limits.

            Appellant Mary Arlene Pagel, individually and as trustee for the next of kin for decedent, sued Jeffrey Johnson, Stanley Johnson, Melanie Thurstin, and James Thurstin for wrongful death.  The case was settled with Johnson’s insurer paying its $100,000 liability limits plus $5,000 in UIM coverage based on the fault of the Thurstin vehicle.  Thurstin’s liability carrier paid $38,000 of its $100,000 liability limits under Thurstin’s policy.  Appellant contends that her claim exceeds her recovery of $143,000, entitling her to UIM benefits under the State Farm policy that insured decedent.  State Farm declined to preserve its subrogation rights after receiving appropriate notice of the settlement.  Appellant made formal demand on State Farm for the $100,000 UIM limits.  

            Both parties moved for summary judgment.  The district court denied appellant’s summary-judgment motion and granted summary judgment for respondent.  This appeal followed.



            On appeal from a grant of summary judgment, we consider whether any genuine issue of material fact exists and whether the district court erred in applying the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  The parties agree that the facts in this case are undisputed, and the only issue is the correct application of the law.  Application of a statute to the undisputed facts of a case involves a question of law, and the district court’s decision is not binding on this court.  O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn. 1996).

Minn. Stat. § 65B.49, subd. 3a(5) (2002), sets out the order in which an injured party may seek underinsured motorist (UIM) coverage from relevant policies.  Thommen v. Ill. Farmers Ins. Co., 437 N.W.2d 651, 653 (Minn. 1989). 

If at the time of the accident the injured person is occupying a motor vehicle, the limit of liability for uninsured and underinsured motorist coverages available to the injured person is the limit specified for that motor vehicle.  However, if the injured person is occupying a motor vehicle of which the injured person is not an insured, the injured person may be entitled to excess insurance protection afforded by a policy in which the injured party is otherwise insured.  The excess insurance protection is limited to the extent of covered damages sustained, and further is available only to the extent by which the limit of liability for like coverage applicable to any one motor vehicle listed on the automobile insurance policy of which the injured person is an insured exceeds the limit of liability of the coverage available to the injured person from the occupied motor vehicle. 


Minn. Stat. § 65B.49, subd. 3a(5).  This statute requires that occupants of motor vehicles first look to the insurance coverage afforded by the policy insuring the host vehicle.  Davis v. Am. Family Mut. Ins. Co., 521 N.W.2d 366, 368-69 (Minn. App. 1994).  If the injured person is not an insured under that policy, and his or her damages are not fully compensated by the UIM coverage on the occupied vehicle, the injured person may be entitled to “excess” insurance protection under the injured person’s own insurance policies, only if the injured person’s UIM limits are greater than the UIM limits on the occupied vehicle. 

            The Minnesota Supreme Court analyzed the application of Minn. Stat. § 65B.49, subd. 3a(5), in Schons v. State Farm Mut. Auto. Ins. Co., 621 N.W.2d 743, 748 (Minn. 2001).  In that case, Schons was injured while a passenger in a vehicle and was not an insured under the policy covering the host vehicle.  Id. at 744-45.  The supreme court held that Minn. Stat. § 65B.49, subd. 3a(5), precluded recovery of UIM benefits under Schons’s insurance policy because her UIM limits did not exceed the limit of UIM benefits available from the host driver’s policy.  Id. at 747.  The court stated that the goal of subdivision 3a(5) is to connect a passenger’s recoverable UIM benefits to the host vehicle’s policy “unless the passenger’s pre-selected level of UIM coverage exceeds the host vehicle’s UIM limits.”  Id. at 748.  This court has interpreted the language “limit on liability of the coverage available” in the same way.  See LaFave v. State Farm Mut. Auto. Ins. Co., 510 N.W.2d 16, 19 (Minn. App. 1993) (stating that because the passenger’s policy does not exceed the limit of available coverage provided by the host policy, the passenger is not entitled to excess coverage).

            It is undisputed that decedent was not an insured under the policy covering the Johnson vehicle.  It is also undisputed that the UIM limits on the Johnson vehicle were not available to appellant for Johnson’s part in the accident because Johnson’s vehicle was not underinsured, by policy definition.  But the UIM coverage on the Johnson vehicle was available to appellant for Thurstin’s part in the accident. 

            Appellant agrees that the full $100,000 UIM limit under Johnson’s policy was available to her for Thurstin’s status as underinsured.  See LaFave, 510 N.W.2d at 19 (holding that under Minn. Stat. § 65B.49, subd. 3a(5), the court looks to the amount available (policy limits) not the amount received to determine whether excess coverage is available).  The statute therefore precludes appellant’s claim against State Farm because the UIM limits in the State Farm policy are not greater than the UIM limits that were available under the policy on Johnson’s vehicle.

We recognize the result required by the supreme court’s analysis of Minn. Stat.     § 65B.49, subd. 3a(5), could appear unfair in a case such as this, because, but for the involvement of Thurstin’s vehicle, appellant would have been entitled to pursue her UIM claim against State Farm.  See Davis, 521 N.W.2d at 369-70 (holding that injured passenger can recover UIM benefits under own policy, even though UIM limits under that policy do not exceed host vehicle’s UIM limits because host vehicle’s UIM limits not available to injured passenger).  Appellant candidly concedes that it would be necessary to carve out an exception to, or rewrite, the Schons opinion to reach the result appellant seeks.  But modification of the law is the prerogative of the supreme court and the legislature, not this error-correcting court.  Because the district court did not err, we affirm.