CONCORD GENERAL MUTUAL INSURANCE COMPANY v. ESTATE OF LAWTON (2003)

Supreme Court of Vermont.

CONCORD GENERAL MUTUAL INSURANCE COMPANY v. ESTATE OF Michael S. LAWTON.

No. 01-239.

Decided: January 31, 2003

Before AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

ENTRY ORDER

¶ 1. In light of this Court's recent decision in Colwell v. Allstate Insurance Co., 2003 Vt. 5, 819 A.2d 727, which controls the outcome of this dispute, we reverse the superior court's grant of summary judgment in favor of defendant, Michael Lawton, and order that summary judgment be entered for plaintiff, Concord General Mutual Insurance Company.   In Colwell, this Court determined that 23 V.S.A. § 941(f) entitles an injured insured to underinsured motorist coverage (UIM) only when the total limits of liability laid out in the tortfeasor's policy are less than the uninsured/underinsured motorist coverage stated in the insured's policy, not when the injured insured's awarded share is less than his UIM coverage.  Id. Here, the tortfeasor's liability coverage exceeded the UIM coverage provided to the injured insured by plaintiff.   As such, he did not fall into the statutory definition of underinsured.   Despite the fact that defendant actually recovered less than the limit of UIM coverage provided by plaintiff, he is not entitled to UIM benefits.

Reversed.