The Alabama Supreme Court recently held that an insured was barred from maintianing a claim for uninsured/underinsured motorist benefits because she had not proven that she was “legally entitled to recover damages” from the underinsured motorist. In Kendall v. United Services Automobile Association, ___So.2d___ (Ala. 2009), the plaintiff’s vehicle was struck by a vehicle operated by Angelia Mercer, an employee of the Elmore County District Attorney’s office, who was acting within the line and scope of her duty at the time of the accident.
The plaintiff filed suit against the County and her UIM carrier, USAA, alleging injuries which were undisputedly greater that $100,000.00. The County, pursuant to Alabama law, is subject to a cap in the amount of “$100,000.00 for bodily injury or death for one person in any single occurrence.” Code of Alabama, 1975, §11-93-2. The County settled the claim in that amount, and the plaintiff proceeded against USAA for her UIM limits of $75,000.00.
The Alabama UM/UIM statute provides for the payment of benefits to insureds under motor vehicle liability policies “for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom….” Code of Alabama, 1975, §32-7-23(a).
In affirming summary judgment for the carrier, the Court held that because of the $100,000.00 cap, the plaintiff was not “legally entitled to recover” any amount in excesss of that amount from the county, and therefore that USAA was not liable under the policy.