author: THORNE, Judge.

text:
    2002 UT App 176
    STATE of Utah, Plaintiff and Appellee, v. Todd R. VAIL, Defendant and Appellant.
    No. 20001001-CA.
    Court of Appeals of Utah.
    May 23, 2002.
    Kent R. Hart, Salt Lake Legal Defender Ass’n, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Attorney General and Christopher D. Ballard, Assistant Attorney General, Salt Lake City, for Appellee.
    Before Judges BENCH, ORME, and THORNE.
   OPINION

THORNE, Judge.

¶ 1 Appellant Todd Vail (Vail) appeals from convictions on two counts of Sexual Abuse of a Child, a second degree felony, in violation of Utah Code Ann. § 76-5-404.1 (1999). At issue is whether the trial court violated Rule 608 of the Utah Rules of Evidence, by allowing a witness to testify as to the truthfulness and veracity of other witnesses. Wé reverse and remand.

BACKGROUND

¶ 2 Vail and Tracy Ely (Ely) began living together in 1995, and were married in 1996. Ely had two young daughters, B.M. and K.E., both from previous relationships. B.M. and K.E. lived with Vail and Ely.

¶ 3 In 1999, Vail and Ely began having marital problems. While Vail and Ely attempted to work out their marital problems, Ely sent the girls to live with her mother, Sherrie Ely. In August of 1999, Vail and Ely agreed to divorce. At roughly the same time, B.M. and K.E. revealed to Sherrie Ely that Vail had sexually abused them. Sherrie told Ely, who then reported the abuse to child protective services.

¶ 4 Detective Stacey Braley (Braley) of the West Jordan Police Department investigated the allegations and interviewed both B.M. and K.E. Subsequently, Vail was charged with three counts of sexual abuse of a child. Counts one and two charged that Vail had sexually abused K.E. Count three charged that Vail had sexually abused B.M. The jury convicted Vail of sexually abusing K.E. and acquitted him on the charge that he sexually abused B.M.

¶ 5 At trial, the State called Braley to testify. On cross-examination, defense counsel questioned Braley about the factors an interviewer may rely upon to determine if a child sexual abuse victim had been coached, or was not telling the truth. Defense counsel posed the following questions to Braley regarding the general conduct of a child interview:

Defense Counsel: And you understand that there are factors that you also have to weigh in to determine whether a child has in fact been coached or is not telling something that may be true, correct?
Braley: Okay, yes.
Defense Counsel: And certainly divorce situations could raise eyebrows in certain circumstances, can’t they?
Braley: Yes.
Defense Counsel: Families where the children would be siding with one parent as opposed to the other, and trying to gain favor with that parent?
Braley: Correct.
Defense Counsel: Those are indicators from your training that would cause concern to any skilled investigator about the testimony; is that a fair statement?
Braley: I would say that’s a fair statement.
Defense Counsel: There are numerous other ones, too, correct?
Braley: Correct.
Defense Counsel: Including the age of the child, their experience, things like that? Braley: There’s a lot of factors, yes.

¶ 6 Defense counsel did not ask Braley whether any of the credibility indicators were present in her interview with either B.M. or K.E. On redirect examination, however, the prosecutor questioned Braley specifically about the interviews that she had conducted with B.M. and K.E. Braley’s testimony was as follows:

Prosecutor: [Defense counsel] has asked you a couple of questions about indicators that you [look] for when — to tell whether a child is fabricating something or making something up. What about indicators that the child is telling the truth? What kind of indicators do you look for there?
Braley: Body language, consistency. Prosecutor: Were you looking for these indicators with those girls?
Braley: Yes.
Prosecutor: Did you find them?
Defense Counsel: Your Honor, I’m going to object....
Prosecutor: Your Honor, he opened the door. He’s asked about this. He’s asked about the credibility of these girls.
The Court: Let me hear from [defense counsel] first....
Defense Counsel: The witness can’t assess the credibility of a witness.
Prosecutor: [0]n cross examination [defense counsel] asked her if she detected any indicators that would in his view indicate lack of trustworthiness, and I’m now asking her if she found indicators that would show a likelihood of honesty. It’s a topic that he opened.
The Court: Overruled, you may ask. Prosecutor: Did you see those indicators in this case?
Braley: I believe so.

The jury convicted Vail on two of the three sexual abuse counts. Vail appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 7 Vail argues the trial court erred by allowing Braley to testify as to B.M.’s and K.E.’s trustworthiness. In reviewing a trial court’s decision to admit evidence, “[w]e review the trial court’s factual findings underlying a decision to admit evidence for an abuse of discretion and the trial court’s legal conclusions for correctness.” State v. Widdison, 2000 UT App 185,¶ 45, 4 P.3d 100.

¶8 Next, Vail argues the trial court erred in ordering Vail to pay restitution to B.M., although the jury did not convict him of sexually abusing her. Because Vail failed to raise this claim to the trial court, we review it for plain error. See State v. Boyd, 2001 UT 30,¶ 21, 25 P.3d 985.

ANALYSIS

¶ 9 Vail argues the trial court committed reversible error by allowing Braley to opine as to B.M.’s and K.E.’s trustworthiness and honesty. Vail argues that Braky’s testimony, wherein she offered her assessment of B.M.’s and K.E.’s veracity as witnesses, violated Rule 608 of the Utah Rules of Evidence. Rule 608(a) states, “The credibility of a witness may be ... supported by evidence in the form of opinion ... only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.” Id.

¶ 10 In State v. Stefaniak, 900 P.2d 1094, 1095-96 (Utah Ct.App.1995), this court conducted a two-part analysis to determine if testimony concerning a victim’s credibility was sufficiently prejudicial to warrant a reversal and a new trial. The defendant in Stefaniak was charged with lewdness involving a child. See id. at 1094. At trial, the prosecutor sought the testimony of the social worker who had interviewed the victim. See id. at 10951 The prosecutor asked the social worker “to comment on [the victim’s] demeanor during the interview.” Id. The social worker testified that the victim was

a fairly normal child for her age. She was pretty open in her responses to my questions. She volunteered information readily. She seemed to be quite candid about what she was telling me.

Id.

¶ 11 On appeal, this court reversed the defendant’s conviction. We concluded that the prosecutor had “improperly elicited” comments about the victim’s candor, suggesting that the victim was an “open, honest, and credible witness.” Id. We explained that the testimony was inadmissible because it had the potential to “ ‘usurp the fact-finding function of judge or jury.’ ” Id. at 1096 (quoting State v. Rimmasch, 775 P.2d 388, 392 (Utah 1989)).

¶ 12 “Having determined that the court erred in admitting the testimony bolstering the victim’s credibility,” we then sought to determine “whether the error was prejudicial” to the defendant’s case. Id. at 1096. We explained that the error would be prejudicial if “ ‘there is a reasonable likelihood that, absent the error, there would have been a more favorable result for the defendant.’ ” Id. (quoting State v. Iorg, 801 P.2d 938, 941 (Utah Ct.App.1990)).

¶ 13 We concluded in Stefaniak that the State’s case against the defendant “hinged entirely on the credibility of the victim.” Id. The State offered no physical evidence nor any corroborating testimony to support its case against the defendant. See id. Accordingly, we explained that the ease against the defendant “ ‘depended on the jury’s assessment of the victim’s credibility versus the defendant’s, and there is not “other evidence [to support] the defendant’s conviction” ... beyond that which is tainted by ... improper testimony.’ ” Id. (quoting Iorg, 801 P.2d at 942 (citation omitted)).

¶ 14 Initially, we address the State’s argument that defense counsel “opened the door” to the prosecutor’s questioning of Bra-ley regarding B.M.’s and K.E.’s credibility as witnesses. We disagree. Defense counsel carefully inquired whether “there are factors that [an investigator] ha[s] to weigh in to determine whether a child has in fact been coached or is not telling something that may be true.” Defense counsel did not inquire as to whether those factors were present in the interviews with either B.M. or K.E. Simply put, mere mention of credibility assessment factors, without a request for a personal or professional assessment of whether those factors are present in a specific interview, does not “open the door.” Accordingly, we conclude that defense counsel did not “open the door,” or attack the credibility of B.M. and K.E., as required under rule 608(a).

¶ 15 We therefore conclude that the prosecutor “improperly elicited [Braley’s] com-merits” concerning B.M.’s and K.E.’s trustworthiness and credibility as witnesses. Id. at 1095. In “[allowing [Braley] to testify as [s]he did, over the objection of [defense] counsel, ... [there was] the potential to ‘usurp the fact-finding function of the judge or jury.’” Id. at 1096 (citation omitted). Braley’s testimony as to whether the girls exhibited those indicators that Braley equates with trustworthiness is therefore inadmissible.

¶ 16 Finally, we address whether the error was prejudicial to Vail’s case. We conclude that it was. At trial, the State offered the testimony of B.M., K.E., Ely, Sherrie Ely, and Braley. Ely testified that she never “ask[ed] the girls about inappropriate touching or anything of that nature,” because she “believed in [Van].” Ely testified that she first learned of the allegations of sexual abuse from Sherrie Ely. Both Ely and Sherrie Ely testified that Ely’s parents did not approve of her marriage to Vail. Moreover, Ely testified that the sexual abuse allegations arose after B.M. and K.E. learned that Vail had moved from the home and that Vail and Ely were going to divorce. In all, the State’s case was largely dependent on B.M. and K.E.’s testimony.

¶ 17 Ultimately, this matter, as in Stefan-iak, “ ‘depended on the jury’s assessment of the victimfs’] credibility versus the defendant’s, and there is not “other evidence [to support] the defendant’s conviction” ... beyond that which is tainted by ... [Braley’s] improper testimony.’ ” Id. Prior to opining as to the girls’ trustworthiness and honesty, Braley testified that she had conducted over 1000 interviews with child victims. Braley then clearly and unequivocally testified that both girls exhibited the indicators that she equated with trustworthiness. Accordingly, we cannot say that absent Braley’s testimony bolstering B.M.’s and K.E.’s credibility as witnesses, “ ‘there is not a reasonable likelihood of a more favorable result to [Vail].’ ” Id. (citation omitted).

CONCLUSION

¶ 18 We conclude that the police officer’s assessment of credibility was improperly presented to the jury. We must therefore reverse Vail’s conviction and remand for a new trial. Accordingly, based on our decision, we do not address Vail’s argument concerning restitution.

¶ 19 I CONCUR: GREGORY K. ORME, Judge.

¶ 20 I DISSENT: RUSSELL W. BENCH, Judge.


source: Caselaw Access Project

author: BILLINGS, Associate Presiding Judge:

license: Public Domain

text:
    2002 UT App 221
    TRAVELERS/AETNA INSURANCE COMPANY, Plaintiff and Appellee, v. Keith WILSON and Trisha Wilson, Defendants and Appellants. Keith Wilson and Carlene Wilson, Guardians Ad Litem for Trisha Wilson, a minor, Counter Plaintiffs, v. Travelers/Aetna Insurance Company, Counter Defendant.
    No. 20000227-CA.
    Court of Appeals of Utah.
    June 27, 2002.

      Steve S. Christensen, Henriod & Nielsen, Salt Lake City, for Appellants.
    Terry M. Plant and H. Justin Hitt, Plant, Wallace, Christensen & Kanell, Salt Lake City, for Appellee.
    Before Judges BILLINGS, ORME, and THORNE.
   OPINION

BILLINGS, Associate Presiding Judge:

¶ 1 Keith Wilson and his minor daughter Trisha Wilson were passengers involved in an auto accident in Utah. The relevant facts leading up to the accident are undisputed.

BACKGROUND

¶2 Around May 1, 1996, Keith Wilson accepted a job in Salt Lake City as a driver for a trucking company. The Wilson family was living in New York. The family moved out of their New York residence and into Keith’s parents’ home, also in New York, sold much of their furniture, and placed other personal property in storage. Keith requested that his dispatcher route his next trucking assignment through Salt Lake City so he could look for an apartment there. Keith also renewed his automobile insurance policy with Travelers Insurance while in New York, listing a New York address, and told Travelers that he was planning to move to Utah. The insured vehicle was registered in New York and remained garaged in New York at the time of the accident. The policy had personal liability limits of $25,000 per person, $50,000 per accident, and $10,000 for property damage. The policy also included mandatory personal injury protection (PIP) benefits of $50,000, as required under New York law. Keith purchased optional supplementary underinsured motorist (SUM) coverage with limits of $25,000 per person, $50,000 per accident. The policy stated that “[t]he maximum amount payable under SUM coverage shall be the policy’s SUM limits reduced and thus offset by motor vehicle bodily injury liability insurance policy or bond payments received from, or on behalf of, any negligent party involved in the accident, as specified in the SUM endorsement.”

¶ 3 On June 30, 1996, Keith left with his minor daughter Trisha, then age ten, on a long-haul cross-country trucking assignment. Keith’s wife and younger daughter remained in New York. The trip route required them to go through various states. The pair spent the Fourth of July in Texas, and the renewal Travelers policy became effective on July 5, 1996. Keith and Trisha arrived in Salt Lake City on July 18, 1996, and spent approximately two days looking at apartments and filling out several apartment application forms. The remaining leg of Keith’s trucking assignment required that he go to Oregon and Washington after leaving Utah. However, on July 21, 1996, while still in Salt Lake City, both Keith and Trisha were passengers in a car owned and operated by a family friend when they were involved in an auto accident. Keith was admitted to a local hospital and was released on August 4, 1996. Trisha was also treated for injuries in Salt Lake City. A few days after being released from the hospital, Keith and Trisha returned directly to New York. The family eventually moved to Utah in November of 1996.

¶4 Keith stated in his deposition that at the time of the accident, his driver license was issued in New York, he did not have a Utah address, he was registered to vote in New York, and he paid income taxes to the State of New York. In addition, after the accident, he applied for social security disability benefits in New York, listing a New York address.

¶ 5 Keith and Trisha received more- than $25,000 each when they settled their claims against the negligent parties. In addition, they claimed and received from Travelers approximately $50,000 each in PIP benefits available under the policy. They also sought $25,000 each in SUM benefits under the Travelers policy.

¶ 6 Travelers filed for a declaratory judgment, claiming that Keith and Trisha were not entitled to SUM benefits under the policy. Both parties filed motions for summary judgment, and the Wilsons also filed a motion to amend their pleadings. The trial court granted Travelers’s summary judgment motion and denied both of the Wilsons’ motions, basing its judgment on two grounds: First, that New York law applied to the contract under a conflict of laws analysis; and second, that “even if Utah law applied to the interpretation of the insurance contract between [Travelers] and [the Wilsons], Utah law does not bar the use of offsets to reduce any amounts received by the [Wilsons] from the tortfeasor against the SUM benefits under the insurance contract.” The Wilsons appeal the grant of summary judgment in favor of Travelers and the denial of the Wilsons’ motions. Because we conclude the Utah stacking provision in Utah Code Ann. § 31A-22-305 (1999) does not apply to the Wilsons’ claim, we need not reach the conflict of laws issue.

ISSUES AND STANDARDS OF REVIEW

¶ 7 “A grant of summary judgment is proper when there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law.” American Nat’l Fire Ins. Co. v. Farmers Ins. Exch., 927 P.2d 186, 188 (Utah 1996); see also Utah R. Civ. P. 56(c). The trial court’s conclusions of law are reviewed for correctness. See id.

ANALYSIS

¶ 8 The Wilsons argue that under a conflict of laws analysis, Utah law should be applied in this case because Utah has a more significant relationship to the insurance policy than New York. Under New York law, SUM benefits are offset by insurance payments from the negligent party. See N.Y. Ins. Law § 3420(f)(2)(A)' (McKinney 2000); N.Y. Comp.Codes R. & Regs. tit. 11, § 60-2.1(c) (LEXIS through April 5, 2002). The Wilsons claim that “Utah law does not permit the [SUM] offset against other insurance coverages under the facts of this ease.” Specifically, they contend that Utah Code Ann. § 31A-22-305 (1999 & Supp.2001) applies to this case, which would allow them to recover SUM benefits under the Travelers policy. The relevant portions of subsection 31A-22-305(10) (Supp.2001) state:

(b) (i) The limit of liability for underin-sured motorist coverage for two or more motor vehicles may not be added together, combined, or stacked to determine the limit of insurance coverage available to an injured person for any one accident.
(ii) Subsection (10)(b)(i) applies to all persons except a covered person as defined under Subsection (10)(d)(i)(B).
(d) (i) Each of the following persons may also recover underinsured motorist coverage benefits under any other policy in which they are described as a “covered person” as defined under Subsection (1):
(B) a covered person injured while occupying or using a motor vehicle that is not owned by, furnished, or available for the regular use of the covered person, the covered person’s resident spouse, or the covered person’s resident relative.
(v) Neither the primary nor the secondary coverage may be set off against the other.

Utah Code Ann. § 31A-22-305(10) (Supp. 2001).

¶ 9 Travelers asserts that this section does not apply to the Travelers policy. They argue that Utah Code Ann. § 31A-21-101 (1999), entitled “Scope of Title 31A, Chapters 21 and 22,” expressly states that Chapters 21 and 22 of Title 31A apply to insurance policies:

(a) delivered or issued for delivery in this state;
(b) on property ordinarily located in this state;
(c) on persons residing in this state when the policy is issued; and
(d) on business operations in this state.

Id. § 31A-21-101(1). Accordingly, because the code provision allowing for the stacking of SUM benefits, section 31A-21-305(10), applies only to policies within the scope of section 31A-21-101(1), Travelers argues that the Utah stacking law does not apply to the Travelers policy. Specifically, because the policy at issue was not delivered or issued for delivery in Utah, and was not for a vehicle ordinarily located in Utah, nor for persons residing in Utah when the policy was issued, and not for business operations in Utah, the statute upon which the Wilsons rely is inapplicable. We agree. Because we agree with the trial court that section 31A-22-305, the Utah stacking provision, does not apply, the Wilsons’ claim fails.

¶ 10 First, it is clear that under section 31A-21-101(l)(a), the Travelers policy was not “delivered or issued for delivery in [Utah].” Keith renewed the policy at a New York local branch while still in New York, listed a New York address on his amended declarations page, the policy conformed to New York law, and the New York office issued the renewal.

¶ 11 Second, under section 31A-21-101(l)(b), the Travelers policy was not for “property ordinarily located in this state” because the insured vehicle remained registered and garaged in New York both at the time the policy was renewed and at the time of the accident.

¶ 12 Finally, under section 31A-21-101(l)(c), Keith and Trisha were not “persons residing in this state when the policy [was] issued.” In order to determine if they were “persons residing in” Utah at the time of the renewal policy, we must first define “residing in.” “ ‘ ‘When faced with a question of statutory construction, we look first to the plain language of the statute.” ’ In so doing, ‘ “[w]e presume that the legislature used each word advisedly and give effect to each term according to its ordinary and accepted meaning.” ’ ” Arredondo v. Avis Rent A Car Sys., Inc., 2001 UT 29, ¶12, 24 P.3d 928 (citations omitted) (alteration in original). “The Utah Supreme Court has stated that in the construction of ... statutes, words such as ‘resident,’ ‘which are used in common, daily, nontechnical speech, should, in the absence of evidence of a contrary intent, be given the meaning which they have for laymen in such daily usage.’ ” Mesa Dev. Co. v. Sandy City Corp., 948 P.2d 366, 369 (Utah Ct.App.1997) (quoting Government Employees Ins. Co. v. Dennis, 645 P.2d 672, 675 (Utah 1982)). “In this context, ‘the definition of “resident” in the standard nonlegal dictionaries’ is a helpful guide to its general meaning.” Id. (quoting Government Employees, 645 P.2d at 675).

¶ 13 Webster’s Third International Dictionary defines “reside” and “residing” as “to dwell permanently or continuously,” “have a settled abode for a time,” and “have one’s residence or domicile.” Webster’s Third New International Dictionary 1931 (1986). In addition, Webster’s defines “resident” as “dwelling or having an abode for a continued length of time.” Id.

¶ 14 Further, under Utah case law, “a ‘resident’ is someone who dwells or resides in a place so as to be more than a mere inhabitant.” Mesa Dev. Co., 948 P.2d at 369. “ ‘Actual’ residence requires physical presence. To establish an actual and bona fide residence, ‘... one must have some abode in the county to which he intends to return and where, in doing so, he would be no trespasser.’ ” Bustamante v. Bustamante, 645 P.2d 40, 41 (Utah 1982) (citations omitted) (alteration in original). Relevant factors include “voting, owning property, paying taxes, having family in the area, maintaining a mailing address, being born or raised in the area, working or operating a business, and having children attend school in the forum.” Id. In addition, “one retains his residence or domicile until he acquires a new one.” Dodge v. Evans, 716 P.2d 270, 275 (Utah 1985); see also Allen v. Greyhound Lines, Inc., 583 P.2d 613, 615 (Utah 1978).

¶ 15 In the present ease, as of July 5, 1996, when the Travelers policy was issued, it is clear that the Wilsons were not residents of Utah. For instance, they were registered to vote in New York and were paying taxes there. They did not own prop-

erty or rent property in Utah, nor did they have a mailing address in Utah. Therefore, their argument that Utah Code Ann. § 31A-21 — 101(l)(c) applies to the Travelers policy because they were “persons residing in [Utah] when the policy [was] issued” fails.

¶ 16 In conclusion, because the Travelers policy does not fall within the scope of section 31A-21-101(1), Utah law that allows the stacking of SUM benefits does not apply. Thus, under Utah and New York law, the provision of the Wilsons’ insurance policy prohibiting stacking of SUM benefits is enforceable. Therefore, we affirm the trial court’s grant of summary judgment in favor of Travelers and the denial of the Wilsons’ motion for summary judgment.

¶ 17 WE CONCUR: GREGORY K. ORME, Judge and WILLIAM A. THORNE JR., Judge.

      . While the policy was actually issued by Aetna Insurance Company, Aetna was subsequently acquired by Travelers Insurance Company. Therefore, Aetna and Travelers are collectively referred to as "Travelers.”

      . Because of our determination that the Wilsons were not Utah residents, we need not address the denial of the Wilsons' motion to amend their pleadings. Specifically, this issue concerns the Wilsons’ claim to have mistakenly admitted that they "were New York residents up to and including the time of the accident” in their answer.

      . The renewal policy states that the "Annual Effective Date" is July 5, 1996; the "Policy Period” is from July 5, 1996 to July 5, 1997, 12:01 a.m. standard time; and the "Effective Date” is July 31, 1996. Counsel for the Wilsons asserted for the first time at oral argument that July 31, 1996 is the critical date at issue. However, the Travelers policy defines "Your covered auto” as “[a]ny .. . vehicle as of the date you become the owner so long as that date is within the policy period " and a "covered person” as "[y]ou or any family member ... while occupying ... a motor vehicle.” (Emphasis added.) Additionally, the Wil-sons' brief states that the renewal "came in to effect, on July 5, 1996,” and Wilsons' counsel also asserted the same date at the motion hearing before the trial court. Therefore, we will treat July 5, 1996, as the critical date in this appeal.

      . Related cases have either distinguished between "domicile” and "residence,” or used them interchangeably. See, e.g., Frame v. Residency Appeals Comm. of Utah State Univ., 675 P.2d 1157, 1159 n. 1 (Utah 1983) ("In some contexts the terms residence and domicile have different meanings, but for the purpose of this opinion we will treat them synonymously.”). For purposes of this appeal we will address the issue under "residency” alone.

      . We note, however, that this does not lead to an inequitable result. Under New York law, the minimum for PIP benefits is $50,000 per person. See N.Y. Ins. Law § 5103(a),(d) (McKinney 2000); N.Y. Comp.Codes R. & Regs. tit. 11, § 65-1.1(d) (LEXIS through May 17, 2002). Travelers paid this amount to both Keith and Trisha. If Utah law regarding PIP benefits had been applied, the minimum amount would have been $3,000. See Utah Code Ann. § 31A-22-307(l)(a) (Supp.2001). In essence, the Wilsons argue for selective application of the most favorable provisions of the insurance laws of two states to a single policy. We can envision no rational basis on which New York's statute concerning PIP benefits would control, while Utah's statute on stacking SUM benefits would govern.


author: CARPENETI, Justice.

text:
    TRU-LINE METAL PRODUCTS, INC., Jody Sutherland, and Craig Holley, Appellants, v. U.S. FABRICATION & ERECTION, Appellee.
    No. S-9790.
    Supreme Court of Alaska.
    June 7, 2002.
    Rehearing Denied Aug. 9, 2002.

      Susan Orlansky and Jeffrey M. Feldman, Feldman & Orlansky, Anchorage, for Appellants.
    Bruce E. Davison and Joseph A. Pollock, Davison & Davison, Anchorage, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

In this contract dispute, Tru-Line Metal Products, Inc. sued United States Fabrication and Erection (USF & E) in federal court. The federal court granted summary judgment in favor of USF & E and awarded full attorney's fees as a sanction for filing a baseless claim. Tru-Line then brought this action in state superior court. USF & E moved for summary judgment on res judica-to grounds. The superior court granted summary judgment and awarded USF & E three times actual attorney's fees and costs as a sanction under Alaska Rules of Civil Procedure 11 and 95. Because the federal court did not have subject matter jurisdiction, res judicate does not bar Tru-Line from filing suit in state court on the same claim. We therefore reverse the grant of summary judgment and remand for further proceedings in the superior court.

II FACTS AND PROCEEDINGS

A. Background

In 1994 M.A. Mortensen entered into a contract with the United States Army Corps of Engineers for improvements to Elmendorf Composite Medical Facility. Mortensen entered into a subcontract with Waiward Steel Fabricators, Ltd., which in turn entered into a subcontract with United States Fabrication and Erection. In October 1994 USF & E, as principal, and Star Insurance Company (Star), as surety, executed a payment bond, guarantecing payment of all persons having a direct relationship with either USF & E or a subcontractor of USF & E. In February 1995 USF & E, as a second-tier subcontractor on the Elmendorf project, entered into a subcontract with Tru-Line Metal Products, Inc. to install metal decking.

B. The Federal Court Lawsuit

In May 1997 Tru-Line filed suit against USF & E and Star in United States District Court in Anchorage, alléging breach of contract and claiming damages totaling over $730,000, plus interest, costs, and attorney's fees. In its complaint, Tru-Line asserted that the federal court had federal question jurisdiction pursuant to 28 U.S.C. § 1331 and by virtue of the Miller Act. USF & E and Star moved for summary judgment, arguing that Tru-Line's claims were barred under the Miller Act. USF & E and Star also contended that, because Tru-Line was not registered as a contractor in the State of Alaska pursuant to AS 08.18.151, it was not entitled to enforce its contract with USF & E.

Tru-Line attempted to amend its complaint in September 1997. The amended complaint purported to establish diversity of citizenship as another ground for federal jurisdiction. However, Tru-Line failed to note diversity in the heading, did not allege any facts establishing diversity in the pleadings, and stated the incorrect jurisdictional amount. At oral argument on the motion for summary judgment, United States District Court Judge John W. Sedwick, noting these substantial defects in the amended complaint, allowed counsel for Tru-Line to withdraw the amended complaint and file another. (Tru-Line never filed a second amended complaint.) Judge Sedwick also stated that he saw no valid claim based upon the Miller Act. He indicated that he would consider the other matters with respect to the state law issues, that is whether Tru-Line, as an unregistered contractor, could sue on its contract. He expressed skepticism that Tru-Line could do so.

In his written order from chambers, Judge Sedwick granted summary judgment to USF & E. He found that, because Tru-Line was a third-tier contractor and because the Star payment bond was not a Miller Act bond, Tru-Line was not entitled to recover under the Miller Act. Judge Sedwick also discussed the Alaska contractor registration law and its applicability to Tru-Line's claims. He found the Alaska Contractor Registration Act to be substantive in nature and applicable to Tru-Line's claims brought in federal court pursuant to diversity jurisdiction. As Tru-Line did not dispute that it was an unregistered contractor, Judge Sedwick stated that Tru-Line was barred from suing on the contract it entered into with USF & E.

In a separate order from chambers, Judge Sedwick granted USF & E Rule 11 sanctions in the sum of reasonable attorney's fees, expenses, and costs. He found that Tru-Line filed an "utterly baseless" claim under the Miller Act. He also found that the lack of reasonable inquiry made by Tru-Line supported a finding of frivolousness and warranted the imposition of sanctions.

C. The Superior Court Lawsuit

In October 1998 Tru-Line filed suit against USF & E in superior court in Anchorage alleging fraud, negligent misrepresentation, and conversion. USF & E moved for summary judgment based on res judica-ta. Tru-Line opposed the motion, alleging that the merits of Tru-Line's federal claim were never reached as Tru-Line's complaint was dismissed because it was not a registered Alaska contractor. The state complaint concerned fraud and conversion claims that, according to Tru-Line, could not have been part of its federal complaint as it had no indication that it had been purposefully misled and defrauded by USF & E.

The superior court granted USF & E's motion for summary judgment. USF & E then filed a motion for attorney's fees and sanctions against Tru-Line and its legal counsel, pursuant to Alaska Rules of Civil Procedure 11, 68, 82, and 95. The court, finding that Tru-Line had no reasonable basis in fact to file a complaint on an action deemed by the federal court to be baseless and frivolous, granted USF & E's motion for attorney's fees and sanctions. For violations of Alaska Rules 11 and 95, the court granted USF & E three times its actual costs and attorney's fees to be paid by Tru-Line and its counsel, Jody Sutherland and Craig Holley, jointly and severally. A motion for reconsideration by Tru-Line and its counsels was denied and those parties now appeal to this court.

III. STANDARD OF REVIEW

A superior court's order granting a motion for summary judgment is reviewed de novo. We will affirm a grant of summary judgment if there are no genuine issues of material fact and if the moving party is entitled to summary judgment as a matter of law. The question of whether res judicata applies is a question of law, which we review de novo.

IV. DISCUSSION

A. As the Federal Court Found that It Did Not Have Subject Matter Jurisdiction over Tru-Line's Claim, the Superior Court Erred in Granting Summary Judgment to USF & E.

1. Res judicata generally

Res judicata is a judicial doctrine that has as " 'its primary objective claim preclusion or judicial finality." " Under this doctrine, " 'a judgment in a prior action bars a subsequent action if (1) the prior judgment was a final judgment on the merits, (2) a court of competent jurisdiction rendered the prior judgment, and (8) the same cause of action and same parties or their privies were involved in both suits.. " Res judicata implements the "generally recognized public policy that there must be some end to litigation and that when one appears in court to present his case, is fully heard, and the contested issue is decided against him, he may not later renew the litigation in another court."

Tru-Line stipulates for the purposes of this appeal that the federal court entered a final judgment, that the previous case involved the same parties, and that the new claims arose out of the same transaction as the claims in the federal suit. But it argues that res judicata does not apply because the federal court judgment was not "on the merits."

2. The federal court judgment was not "on the merits."

a. Federal question jurisdiction

For a court to exercise federal question jurisdiction, a case must arise under the United States Constitution, the laws of the United States, or treaties made under their authority. The claim arising under federal law must also be substantial; that is, there must be legal substance to the position that the plaintiff is promoting. If the federal claim that is the basis for jurisdiction is obviously without merit or is wholly frivolous, the federal court must dismiss for a lack of jurisdiction. However, "if there is any foundation of plausibility to the claim{,] federal jurisdiction exists. There is no question that a dismissal that results because there is no substantial federal question is a jurisdictional dismissal: " '[IJt remains the federal rule, and needs no reexamination here? "

In his order granting summary judgment to USF & E, Judge Sedwick found that the Miller Act could not serve as a basis for the district court to exercise jurisdiction. The court based its findings on the fact that the bond obtained by USF & E did not meet the criteria established to be a Miller Act bond; that even if it had been a Miller Act bond, Tru-Line sued the sub-sub-sub-contractor, not the prime contractor; and that even if it had sued the proper party, Tru-Line was too far removed from the prime contractor to sue under the Miller Act. As the court found that Tra-Line's Miller Act claim was not a substantial claim upon which it could exercise federal question jurisdiction, the district court could not exercise pendant jurisdiction over Tru-Line's common law contract claims.

The resolution of the Miller Act claim rested on jurisdictional grounds even though these findings were made in an order of summary judgment. Although the decision may be styled a summary judgment, it "should not gain increased preclusive effects because of the label chosen. As such, a determination of whether the grant of summary judgment as to the federal question was "on the merits" should be looked at in the context of a dismissal for lack of jurisdiction. Such dismissals are not "on the merits."

b. Diversity jurisdiction

Diversity jurisdiction extends to controversies between citizens of different states. Generally, there is a presumption against diversity jurisdiction unless diversity jurisdiction is properly asserted in the pleadings. This presumption places the burden of proof on the party asserting jurisdiction, the sufficiency of which may be raised by the parties or sua sponte by the court at any time. However, a court's discretion to dismiss for lack of subject matter jurisdiction, when the plaintiff could have pled diversity jurisdiction and such jurisdiction in fact exists, should be used sparingly. Jurisdiction may be sustained on the basis of a statute not relied on or alleged in the pleadings. As such, a court may sustain jurisdiction, even if defectively pled, when a proper basis for jurisdiction exists upon review of the entire complaint.

Diversity jurisdiction was not properly pled in district court. The first complaint merely alleged jurisdiction under the Miller Act. In its amended complaint, Tru-Line attempted to allege diversity jurisdiction. Tru-Line is a California corporation and USF & E is an Alaska corporation. These facts were disclosed during oral argument on the summary judgment motion. During that argument, Judge Sedwick allowed Tru-Line to withdraw its defective amended complaint and granted it leave to file another amended complaint, one that would properly allege diversity jurisdiction. Tru-Line, though, never filed an amended complaint properly asserting diversity jurisdiction.

In his order, Judge Sedwick discussed Tru-Line's state law contract claims. He did not, however, state that he was exercising diversity jurisdiction. Rather, he mentioned diversity jurisdiction in a footnote stating that "[the Alaska Contractor Registration law is substantive in nature and therefore, applicable to Tru-Line's contract claims brought in federal court pursuant to diversity jurisdiction."

Judge Sedwick's discussion of Tru-Line's state law contract claims did not constitute a final judgment "on the merits." Having given Tru-Line the opportunity to file an amended complaint properly alleging diversity jurisdiction, and Tru-Line having failed to do so, Judge Sedwick's opinion acted only as an advisory opinion on the futility of such action. As Tru-Line did not have a valid claim under the Contractor Registration Act, Judge Sedwick stated, it was unable to sue on the contract it entered into with USF & E. As Judge Sedwick's discussion of the state law claims was advisory and not a judgment on those claims, it is no bar to Tru-Line filing a suit in state court on the contract. Summary judgment in favor of USF & E, therefore, should not have been granted.

B. Because It Was Error To Grant Summary Judgment, the Award of Treble Fees and Costs Is Vacated.

The superior court awarded USF & E treble fees and costs. We need not reach the propriety of this sanction. Because summary judgment should not have been granted, the award of fees and costs must be vacated.

V. CONCLUSION

Because the federal court judgment was not "on the merits," Tru-Line's state court case was not barred by res judicata. The superior court's grant of summary judgment is therefore REVERSED, the award of attorney's fees is vacated, and the case is REMANDED to the superior court for further proceedings on Tru-Line's state law claims.

      . 40 U.S.C. §§ 270af (2001). The Miller Act requires the prime contractor on a federal construction project to furnish a payment bond to insure payment to those who have a direct contractual relationship with either the prime contractor or a subcontractor. Unuted States v. Aet-na Cas. & Sur. Co., 981 F.2d 448, 450 (Oth Cir. 1992).

      . AS 08.18.151 provides:
      A person acting in the capacity of a contractor may not bring an action in a court of this state for the collection of compensation for the performance of work or for breach of a contract for which registration is required under this chapter without alleging and proving that the contractor was a registered contractor at the time of contracting for the performance of the work.

      . After taking the matter under advisement and indicating that his practice was to provide a written order explaining his rulings, Judge Sed-wick stated: "It does seem to me apparent that there's ... clearly no claim based upon the Miller Act here. This is not a Miller Act bond and a . sub-sub-sub-sub cannot make such a claim, and it's been known for many, many years that ... that's not proper."

      . Judge Sedwick stated: "I will consider the other matters with respect to the state law issues. I'm not ruling at this time. It does appear to me probable that there's no way this case can be brought into federal court, in view of the substantive state law requiring contractor registration, but I will look at the cases [cited by coun-sell."

      . White v. State, Dep't of Natural Res., 14 P.3d 956, 959 (Alaska 2000).

      . Calhoun v. State, Dep't of Transp. & Pub. Facilities, 857 P.2d 1191, 1193 (Alaska 1993).

      . Renwick v. State, Bd. of Marine Pilots, 971 P.2d 631, 633 (Alaska 1999).

      . Engebreth v. Moore, 567 P.2d 305, 307 (Alaska 1977) (quoting Drickersen v. Drickersen, 546 P.2d 162, 169 (Alaska 1976)).

      . White, 14 P.3d at 959 (quoting Tope v. Christianson, 959 P.2d 1240, 1243 (Alaska 1998).

      . DeNardo v. State, 740 P.2d 453, 455 (Alaska 1987) (internal quotes omitted).

      . U.S. Const, art. IH, § 2

      . See, eg., United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct 1130, 16 L.Ed.2d 218 (1966); 13B Cmartes Aran Waricut, Artur R. Miter & Eowaro H. Cooper, FeperaL Practice anp Proceoure § 3564, at 66-67 (2d ed.1984) [hereinafter Warcut].

      . See, eg., Montana Catholic Missions v. Missoula County, 200 U.S. 118, 130, 26 S.Ct. 197, 50 L.Ed. 398 (1906); Mainelli v. Providence Journal Co., 312 F.2d 3, 5-6 (1st Cir.1962); 13B Wricut, supra note 12, § 3564.

      . 13B Waricer supra note 12, § 3564 at 71; see, e.g., Southpark Square Ltd. v. City of Jackson, Miss., 565 F.2d 338, 342-43 (5th Cir.1977).

      . 13B Wricut supra note 12, § 3564 at 73 (quoting Hagans v. Lavine, 415 U.S. 528, 538, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974)).

      . 18 Wricut, supra note 12, § 4444, at 392 (citing Wright Mack. Corp. v. Seaman-Andwall Corp., 364 Mass. 683, 307 N.E.2d 826, 833 (1974).

      . See eg., In re Matter of Pacific Marine Ins. Co. of Alaska in Liquidation, 877 P.2d 264, 267 n. 2 (Alaska 1994); Ostrow v. Higgins, 722 P.2d 936, 938 (Alaska 1986); Moran v. Poland, 494 P.2d 814, 816 (Alaska 1972).

      . U.S. Const, art. III, § 2.

      . See Naartex Consulting Corp. v. Watt, 722 F.2d 779, 792 (D.C.Cir.1983).

      . See Rice v. Rice Found., 610 F.2d 471, 474 (7th Cir.1979).

      . Hoefferle Truck Sales, Inc. v. Divceo-Wayne Corp., 523 F.2d 543, 549 (7th Cir.1975).

      . May v. Supreme Court of Colorado, 508 F.2d 136, 137 (10th Cir.1974).

      . Van Hoose v. Williams, 496 F.Supp. 947, 948 (E.D.Ky.1980). -


author: BRYNER, Justice.

text:
    Cynthia WOLD, individually and as Personal Representative of the Estate of Heidi Wold, Appellant, v. PROGRESSIVE PREFERRED INSURANCE COMPANY, Appellee.
    No. S-9775.
    Supreme Court of Alaska.
    Aug. 2, 2002.

      Laurel J. Peterson, Laurel J. Peterson, P.C., Anchorage, for Appellant.
    Daniel T. Quinn, Richmond & Quinn, Anchorage, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, and BRYNER, Justices.
   OPINION

BRYNER, Justice.

I. INTRODUCTION

Heidi Wold was killed while riding in a pick-up that rolled over after its driver, Koby Smith, swerved to avoid an on-coming car; the on-coming car kept driving and was never identified. Heidi's estate and her parents settled with Smith's insurer; Heidi's mother, Cynthia, then claimed benefits-both individually and as personal representative of Heidi's estate-from Progressive Preferred Insurance Company on Cynthia's own uninsured motorists (UM/UIM) policy. Progressive refused to pay and sought a declaratory judgment, claiming that the unknown driver's conduct could not trigger UM/UIM coverage without a collision and that Smith's negligence could not trigger UM/UIM coverage because the Wolds had not exhausted his liability coverage. The superior court entered judgment for Progressive. We affirm in part and reverse in part, agreeing that Alaska law treats unidentified vehicles as uninsured only when there is a collision but holding that Heidi Wold's estate used up Smith's liability coverage and so may claim UM/UIM benefits from Progressive.

II. FACTS AND PROCEEDINGS

On December 27, 1995, Koby Smith rolled his pick-up truck when he swerved to avoid a car coming toward him in his lane of traffic. Smith's truck did not hit the oncoming car; the car kept driving, and its driver was never identified. Koby Smith's passenger, sixteen-year-old Heidi Wold, was killed in the accident. Heidi's mother was called to the accident seene and arrived soon after, just before Heidi died.

Smith was insured under a policy issued by Allstate Insurance Company that provided both liability and uninsured/underinsured motorists coverage, each having limits of $100,000 per person and $300,000 per accident. Heidi Wold's mother, Cynthia Wold, had her own UM/UIM policy with Progressive, which had the same limits as the Allstate policy. It is undisputed that Heidi qualified as an insured person under both the Allstate and Progressive policies.

Through their attorney, Laurel Peterson, the Wolds negotiated with Allstate for payment under Smith's lability and UM/UIM coverages. Cynthia Wold asserted a wrongful death claim as the personal representative of Heidi's estate; on her own behalf, Cynthia asserted a "bystander" claim for negligent infliction of emotional distress (NIED); and both Cynthia and Heidi's father, Greg Wold, evidently asserted individual claims for loss of consortium or society. The Wolds asserted these claims against both Smith and the unknown driver, alleging that each had been negligent. They maintained that Smith was covered for his own negligence under Allstate's lability policy and that, under Alaska law, the unknown driver was considered to be an uninsured motorist whose actions were covered under the policy's UM/UIM provisions.

The Wolds and Allstate reached a settlement on two of their claims in early December 1997. On December 19 Allstate sent Peterson two checks for $185,600, one representing a policy-limits settlement ($100,000 plus costs and attorney's fees) for the estate's wrongful death UM/UIM claim and the other for Cyuothia Wold's NIED UM/UIM claim. Both of these claims arose from the unknown driver's alleged negligence. Peterson accepted both checks on behalf of the Wolds.

Meanwhile, two days earlier, on December 17, Peterson had filed a superior court complaint against Smith in order to prevent the Wolds' unresolved claims from being barred under the two-year tort statute of limitations, which otherwise would have expired on December 27. The complaint listed as plaintiffs "Cynthia Wold individually, Cynthia Wold, as Appointed Personal Representative of the Estate of Heidi Wold, and Gary Wold." Over the next two months Allstate and Peterson continued to negotiate on the Wolds' unresolved claims. In February 1998 the Wolds filed a global offer of judgment, proposing to settle all their remaining claims against Allstate and Smith for $100,000 plus ' costs, interest, and attorney's fees-a total that Peterson calculated to be $187,888.81. Allstate accepted the offer, and on March 4, 1998, it delivered a settlement check to Peterson "in trust for Cynthia Wold, Gary Wold, [and] Cynthia Wold as personal rep of the Heidi Wold Estate," in exchange for the Wolds' release of all claims against Allstate and Smith.

Peterson then sent a demand letter to Cynthia's own insurer, Progressive, asserting that the Allstate policy's limits had now been exhausted and that Cynthia and the estate had a right to further reimbursement under Cynthia's UM/UIM policy with Progressive. Progressive denied any obligation to pay and filed a superior court action seeking declaratory relief,. The declaratory judgment complaint offered two reasons to support Progressive's position that it had no legal duty to pay the UM/UIM claims. First, insofar as Cynthia and the estate claimed coverage for injuries caused by the unknown driver's negligence, Progressive asserted that Alaska law precluded the unknown driver from being considered an uninsured motorist "because there was no physical contact between the vehicle driven by Koby Smith and the phantom driver's vehicle." Second, insofar as Cynthia and the estate sought to recover for injuries resulting from Koby Smith's negligence, Progressive asserted that Smith could not be considered an underinsured driver under Alaska law because the Wolds had not used up the policy limits available under Smith's Allstate liability policy.

Following an evidentiary hearing into the cireumstances surrounding the Wolds' settlements with Allstate, Superior Court Judge Brian C. Shortell issued findings of fact and conclusions of law sustaining Progressive's position. ' "

Cynthia appeals in her own right and on behalf of Heidi's estate.

III. DISCUSSION

A. The Physical Contact Requirement

Cynthia challenges the superior court's ruling that Progressive had no duty to pay her claim for UM/UIM benefits arising from the unknown driver's negligence because the unknown driver's car did not collide with Smith's pick-up. Although she acknowledges that Progressive's policy required physical contact, Cynthia argues that this requirement should not have been enforced because it is undisputed that Koby Smith's accident was caused by an unidentified vehicle whose driver failed to stop at the scene of the accident.

But the trial court's ruling enforcing the Progressive policy's physical contact requirement was mandated by Alaska law. In 1984 Alaska's Motor Vehicle Safety Responsibility Act (MVSRA), to which all automobile policies must conform, was amended by the addition of a section relating to uninsured and underinsured motorists coverage. Alaska Statute 28.20.445(f) provides:

If both the owner and operator of the uninsured vehicle are unknown, payment under the uninsured and underinsured motorists coverage shall be made only where direct physical contact between the insured and uninsured or underinsured motor vehicles has occurred. A vehicle that has left the seene of the accident with an insured vehicle is presumed to be uninsured if the person insured reports the accident to the appropriate authorities within 24 hours.

The Alaska Mandatory Automobile Insurance Act (AMAIA) contains similar language. Alaska Statute 28.22.201(b) reads:

If both the owner and operator of a vehicle are unknown, payment under the uninsured and underinsured motorists coverage may be made only where direct contact between the motor vehicles has occurred. A vehicle and operator that have left the scene of an accident with another vehicle are presumed to be uninsured if the insured person reports the accident to the appropriate authorities within 24 hours.[]

Thus, under both the MVSRA and the AM-AIA an insured can only receive UM/UIM payments for accidents involving an unknown vehicle if there was physical contact between the vehicles.

The UM/UIM coverage in Cynthia's Progressive policy contained a clause that matched these statutory provisions. The Progressive policy defined "uninsured or un-derinsured motor vehicle" to include:

a "hit and run vehicle" which strikes an INSURED PERSON, YOUR INSURED CAR, or, in the case of BODILY INJURY, a vehicle which an INSURED PERSON is OCCUPYING which causes BODILY INJURY to an INSURED PERSON or PROPERTY DAMAGE to YOUR INSURED CAR arising from an ACCIDENT where there is physical evidence of contact between the INSURED PERSON or YOUR INSURED CAR and the hit and run vehicle, provided that:
1) the operator or owner cannot be ascertained at the time of the ACCIDENT and remains unknown,
2) the INSURED PERSON or someone on his or her behalf shall have reported the ACCIDENT to the appropriate law enforcement agency within 24 hours.

The policy further specified: "If both the owner and operator of the uninsured vehicle are unknown, payment under the Uninsured and Underinsured Motorist Coverage shall be made only where direct physical contact between the INSURED and the UNINSURED or UNDERINSURED MOTOR VEHICLES has occurred."

Cynthia concedes that Smith's truck did not physically contact the unknown vehicle and that the literal terms of her UM/ UIM policy precluded recovery for the unknown driver's actions. But she nonetheless argues that Progressive's physical contact clause should not be enforced because she offered extrinsic proof "of the presence of the phantom vehicle." Cynthia points out that other courts have been willing to set aside physical contact policy clauses when corroborative evidence demonstrates the presence and responsibility of an unknown vehicle. She argues that we should follow these cases because a physical contact clause serves no useful purpose in these cireum-stances and enforcing it allows an insurer to breach its duty of good faith and fair dealing.

But Progressive correctly observes that when courts from other jurisdictions have been willing to invalidate physical contact requirements in policy clauses, they have generally done so under statutory regimes that differ from Alaska's. As Widiss explains in his treatise Uningsurep anp UnpER-IngurEp Moror:st InsuraNCE, although physical contact requirements are a legitimate mechanism for preventing fraud by "foree-los[ing] claims arising from accidents that were allegedly-but not actually-eaused by the operation of an unidentified vehicle," " many courts have declined to strictly enforce clauses in policies requiring physical contact: "Courts in approximately half the states have concluded that insurers are not entitled to enforce the physical contact' requirement because it is in derogation of the uninsured motorist legislation and is therefore void." ®

Yet almost all of these courts have construed the disputed policy provisions in the absence of a statute that requires physical contact. It appears that only West Virginia has judicially adopted the rule proposed by Cynthia by allowing a claimant to satisfy an express statutory physical contact requirement with extrinsic evidence of a "miss-and-run" accident. In Hamric v. Doe the West Virginia Supreme Court concluded that "absolute enforcement of the physical contact requirement is contrary to public policy" and that "the physical contact requirement should not prevent recovery when there is sufficient independent third-party evidence to conclusively establish that the sequence. of events leading to an injury was initially set in motion by an unknown hit-and-run driver or vehicle. But in reaching this decision, Hamrie simply adopted the reasoning in Girgis v. State Farm Mutual Automobile Insurance Co., an Ohio case decided in the absence of a statutory physical contact requirement.

With the exception of Hamric, courts in jurisdictions whose UM/UIM statutes include express physical contact requirements invariably hold that the UM/UIM coverage does not apply in a miss-and-run case-that there must be some actual contact with the unknown vehicle Orpustan v. State Farm Mutual Automobile Insurance Co. exemplifies the reasoning of these courts. There, the California Supreme Court enforced a statutory physical contact requirement despite clear proof that the claim was not fraudulent,concluding that the legislature had made a permissible policy choice in adopting the requirement: "The statute makes proof of 'physical contact' a condition precedent in every case for the recovery of damages caused by an unknown vehicle. There are no exceptions. If it is advisable that the statute be changed, the solution lies within the province of the Legislature.

Here, Cynthia's argument parallels Ham-ric's public policy analysis. But as mentioned above, Hanwic's analysis is unpersuasive because it relies on a case decided in a state that had no statutory physical contact requirement. Cynthia also relies on the Oregon Court of Appeals's decision in To v. State Farm Mutual Insurance, which declined to enforce a policy's physical contact clause and, instead, allowed a miss-and-run claim to be " 'eorroborated by competent evidence other than the testimony of the insured or any person having an uninsured motorist claim resulting from the accident' "" But To reached this decision against the backdrop of a recently enacted statute that had repealed Oregon's former physical contact requirement and replaced it with a corroboration requirement."

Here, by contrast, to accept corroborative evidence as a substitute for physical contact, we would need to override the express terms of AS 28.20.445(f) and AS 28.22.201(b). Cynthia thus essentially asks us to nullify a legislative choice on public policy grounds. Yet statutes themselves reflect the state's public policy; hence, we have recognized that "public policy ... cannot override a clear and unequivocal statutory requirement.

On their face, Alaska's physical contact statutes are absolute and unambiguous. Yet because Alaska does not follow the plain meaning rule, the plain language of these provisions does not itself end the inquiry Under Alaska's sliding-scale approach to statutory construction, strong legislative history may support a different meaning. But "[when] a statute's meaning appears clear and unambiguous, ... the party asserting a different meaning bears a correspondingly heavy burden of demonstrating contrary legislative intent."

Here, Cynthia fails to identify any legislative history suggesting that the statutory physical contact requirement was intended to have limited application. Since Cynthia has rested her case on general public policy considerations and has failed to establish any legislative history suggesting that these provisions were meant to have limited application, we find her arguments unpersuasive. Because the Progressive policy's physical contact clause comports with the express requirements of Alaska law, we affirm the superior court's decision precluding Cynthia and Heidi's estate from claiming UM/UIM payments for negligence attributable to the unknown driver.

B. The Exhaustion Requirement

The superior court determined that by settling for less than the limits of Smith's Allstate liability policy the Wolds failed to exhaust the liability policy; thus, Smith was not an underinsured driver under Alaska's UIM statute, and Cynthia and Heidi's estate were not entitled to payment under Cynthia's Progressive UIM coverage. On appeal Cynthia advances two arguments against this ruling: first, that the Wolds were not required to exhaust Smith's liability; and see-ond, that they actually did exhaust the limits.

The first argument can be readily answered. Alaska's Motor Vehicle Code provides that UM/UIM coverage "may not apply . until the limits of liability of all bodily injury and property damage liability bonds and policies that apply have been used up by payments or judgments or settlements." In Curran v. Progressive Northwestern Ins. Co., which we issued after the present case had already been briefed and argued, we held that this provision "requires a UIM claimant to 'exhaust' or 'use up' all underlying liability coverage before recovering under a UIM policy."" Curran governs here and supports the superior court's conclusion that the Wolds were required to use up Smith's Allstate liability coverage before turning to Cynthia's own Progressive UIM policy.

Whether the Wolds actually did use up the limits available under Smith's Allstate liability coverage is a harder question to answer. Some additional background is nee-essary to frame our review of the superior court's findings and conclusions on this issue.

The superior court's ruling that the unknown driver's negligence could not have triggered Progressive's duty to pay under Cynthia's UM/UIM policy left open the question whether Cynthia and the estate might recover UIM benefits attributable to Koby Smith's negligence. As indicated above, the trial court correctly recognized that Alaska's Motor Vehicle Code would not consider Smith to be an underinsured driver for purposes of triggering Progressive's duty to pay UM/UIM benefits until the limits of Smith's Alistate liability coverage "[had] been used up by payments or judgment or settlements." " The crucial issue before the superior court thus became whether the three settlement checks that the Wolds had received from Alistate-two in December 1997 and one in March 1998-had "used up" the limits of Smith's liability coverage.

At the evidentiary hearing below, the chief factual controversy centered on what specific legal claims Allstate and the Wolds had settled and what available Allstate policy limits those settlements affected. As mentioned earlier, Koby Smith was insured under an Allstate automobile policy providing two coverages: lability and UM/UIM. The first protected Smith from liability for property damage and bodily injury arising out of his own negligent driving; the second protected Smith and his passengers (including Heidi Wold) against loss resulting from property damage or bodily injury by uninsured or underinsured drivers, including Smith himself onee his liability coverage was "used up" by settlement.

Smith's lability and UM/UIM coverages each provided for maximum payments of $100,000 per person and $800,000 per accident. The maximum limits specified for each coverage were independent: a policy-limit liability payment would not reduce the payments available under the UM/UIM policy limits, or vice versa. Furthermore, a person settling for nominal policy limits-$100,000would be entitled to receive additional compensation from Allstate for attorney's fees and prejudgment interest.

In their early negotiations with Allstate, the Wolds, through their attorney, Laurel Peterson, asserted three distinct types of claims. First, Cynthia Wold asserted a wrongful death claim as representative of Heidi Wold's estate; second, on her own behalf, Cynthia asserted a "bystander" claim for negligent infliction of emotional distress; " and third, both parents appear to have individually asserted claims for loss of consortium or society. Allstate regarded the estate's wrongful death claim and Cynthia's NIED claim to be subject to separate "per person" policy limits. Moreover, unlike Progressive, Allstate conceded the unknown driver's status as an uninsured motorist, expressly waiving its right to rely on Alaska's direct physical contact requirement.

In negotiating the Wolds' claims, then, Allstate recognized and accepted that the Wolds were asserting each of their claims against both Smith's lability and UM/UIM coverages: Allstate thus assumed that the estate could potentially recover $100,000 plus add-ons (attorney's fees and interest) on its wrongful death claim under each of Smith's coverages and that Cynthia could potentially recover an additional $100,000 plus add-ons on her bystander NIED claim under each of those coverages. By contrast, Allstate regarded the potential claims for loss of consortium or society to fall under the same "per person" policy limit as the estate's wrongful death claims.

In deciding Progressive's declaratory judgment action, the superior court heard testimony concerning the Allstate settlements from Peterson and reviewed a deposition from Rodney Layton, the Allstate adjuster who negotiated the Wolds' claims with Peterson. The court also reviewed all relevant settlement correspondence. Based on this evidence, the superior court concluded that the two $135,600 checks that Allstate gave to Peterson in December 1997 represented two "per person" policy-limit payments plus add-ons resolving the Wolds claims against Smith's UM/UIM coverage for injuries arising from the unknown driver's negligence-one check settling the estate's wrongful death claim against that coverage; the other settling Cynthia Wold's separate NIED claim. Thus, the court found, these settlements had no effect on the policy limits available to pay any claims against Smith's liability coverage.

The superior court went on to find that Allstate and the Wolds continued. negotiating after reaching the two December 1997 settlements and eventually settled all their remaining liability claims in March 1998 in exchange for Allstate's March 3 payment of $137,833.81. In the court's view, "[these claims included [Cynthia] Wold's individual NIED liability claim, the Estate's lability claim and Gary Wold's [loss-of-society] claim(s)." Since the court had ruled that the December settlements did not use up any of Smith's lability limits, it found that, at the time of the March liability settlement, "the liability portion of the Allstate policy had at least two $100,000 limits still available for the protection of claims against Koby Smith, one for the estate and one for Cynthia Wold's NIED claim." The court further noted that, "Iwlith add-ons, these two limits would have exceeded $270,000." Because Allstate's payment of $137,838.81 fell well below this total and, in the court's view, represented two distinct liability claims, the court reasoned that the March liability settlement "did not use up the remaining funds available to Cynthia Wold and the Estate from the Alistate liability policy." And since the Wolds had failed to use up Smith's liability limits, the court concluded, "they [were] precluded from pursuing a UM/UIM claim against Progressive based on the lability of Koby Smith."

On appeal, Cynthia insists that the superi- or court erred in characterizing Allstate's March settlement payment as a settlement resolving her NIED liability claim. Although she argues the point in her opening brief, Cynthia acknowledges in her reply brief that the superior court did not err in ruling that Allstate's December 1997 settlement checks resolved the estate's and Cynthia's separate claims against Smith's UM/ UIM policy and therefore used up only the Allstate UM/UIM policy limits. But Cynthia nonetheless insists that upon settling her UM/UIM NIED claim in December, she abandoned that claim, relinquishing her right to assert it as a basis for any further UIM liability payments. Thus, Cynthia reasons, the only claims that remained on the table for settlement after December 1997 were the estate's wrongful death liability claim and the individual Hability claims for loss of society-all of which Allstate regarded as accruing to the estate's "per person" lability limit. According to Cynthia, then, the March settlement check must have paid-and must have used up-the policy limits of Smith's liability coverage available to the estate:

In December, 1997, Allstate had paid [Oyn-thial $135,600, whereupon she agreed to waive further NIED claims. With an identical payment to the Estate, Allstate's UM/UIM insurance exposure was fully exhausted. With the final March 8th settlement, the Estate had recovered two per-person limits(:] one each from Allstate's UM/UIM and liability coverages. [Total $273,483.81] Progressive's UM/UIM coverage was necessarily triggered vis a vis the Estate, the only viable claimant asserting a claim at the time of the March settlement. Demand on Progressive's UM/UIM coverage was made accordingly."

The record supports Cynthia's argument. In his December 12, 1997, letter to Layton accepting Allstate's December 10 offer to settle the estate's and Cynthia's separate UM/UIM claims, Peterson broadly indicated that the settlement would "settle and resolve all future NIED claims" and that "[nlot at anytime in future litigation will Mrs. Wold be allowed to argue additional damages flowing from her cause of action rights under existing emotional distress claims." By comparison, Peterson was considerably more circumspect in the waiver language he used with respect to the estate's December 1997 wrongful death settlement, stating only that "Inlo further underinsured motorist claim can be made by the estate in future litigation." (Emphasis added.)

On December 17, 1997, five days after writing the letter accepting Allstate's offers to settle the two UM/UIM claims, Peterson filed a formal complaint against Smith to preserve the Woldsg' liability claims against the statute of limitations,. While the complaint expressly asserted the estate's wrongful death claim and the Wolds' individual claims for loss of society, it conspicuously omitted any allegation of a cause of action for NIED by Cynthia Wold. Three days later, on December 21, Peterson wrote Layton a settlement letter, seemingly confirming that Cynthia's entire NIED claim had been resolved: "Please note that we have settled only Mrs. Wold's negligent infliction of emotional distress claim (NIED), as well as the underinsured motorist coverage available to the estate." And on December 27, 1997, the two-year statute of limitations apparently ex-, pired on the NIED claim with no cause of action having been filed.

None of Peterson's or Allstate's subsequent settlement correspondence or documents make any reference to any potential or still-pending NIED claim by Cynthia. And in a letter written to Progressive shortly after concluding the March 4, 1998, Allstate settlement, Peterson requested UM/UIM payments under Cynthia's Progressive policy only on behalf of the estate: "Please be aware that the Estate of Heidi Wold has, in fact, resolved its claims against the driver of the vehicle in which Heidi Wold was a passenger shortly prior to her death.... Clearly the maximum liability policy applicable to the estate is less than the damages sustained. Thus, ... I hereby make demand for the full policy limits to be tendered immediately." Furthermore, in a letter to Progressive dated April 21, 1998, Peterson made it clear that Cynthia could not have been claiming UM/ UIM payments from Progressive for NIED based on Smith's conduct, since Cynthia claimed only to have exhausted Allstate's UM/UIM coverage on her NIED claim and made no similar claim of exhaustion with respect to Allstate's liability coverage for NIED:

Please note that the estate settled with Allstate for the full and complete UM/UIM coverage in December 1997. Thereafter, in March the estate settled the full liability claim for a maximum lability coverage available. Also, you will note that we settled with Allstate on the full and complete coverage of Mrs. Wold's underinsured motorist claim also in December.

In summary, then, the record seems to contain no evidence indicating that Cynthia Wold ever asserted or purported to assert an NIED liability claim against Allstate based on Smith's conduct after she successfully settled her NIED UM/UIM claim in December. To the contrary, Peterson consistently professed to have abandoned any such claim, omitted it from the Wolds' formal complaint against Smith, and allowed the claim to expire under the statute of limitations as of December 27, 1997. Thus, although Layton testified as to his subjective belief that the Wolds March 1998 global settlement and release included a settlement of Cynthia Wold's unresolved NIED liability claim, the record fails to establish that this belief was reasonable: as of March 1998, the Wolds were not asserting or threatening to assert against Allstate or Smith Cynthia's NIED liability claim; and it appears that the possibility of any legally colorable NIED lability claim no longer existed.

Because we find no justification for concluding that Allstate's March 4 settlement encompassed a pending or potential claim for NIED asserted or assertable against Smith's Allstate Hability policy by Cynthia Wold, we hold that it was error for the trial court to conclude the settlement used up a portion of a separate "per person" liability policy limit attributable to such a claim.

But this conclusion does not fully answer whether Allstate's settlement payments used up the liability coverage available to the estate under Smith's policy. Allstate's March 4, 1998, global settlement agreement with the Wolds resolved not only the estate's wrongful death claim against Smith's lability policy, but also the individual claims for loss of society that Cynthia and Gary Wold set out in their complaint. If those claims triggered separate "per person" limits under Smith's liability policy, then any payments allocated to the loss-of-society claims would not have reduced the coverage available to pay the estate's wrongful death claim; hence, the estate would not have used up its available "per person" limits of Smith's lability policy.

Because we have not previously decided whether a Gillispie loss-of-society claim can trigger a separate "per person" policy limit, we requested the parties to file supplemental briefing on this issue. In its supplemental briefing, Progressive argues that the Wolds' claims for the loss of their daughter's society were subject to the same "per person" limit in the Allstate liability policy as Heidi's estate's wrongful death claim. Progressive bolsters its argument by discussing case law from other jurisdictions, which generally seems to hold that all consequential damages flowing from bodily injury to a single person fall within a one per-person limit."

s

We find it unnecessary to resolve the issue definitively here. In the present case, it appears that Rodney Layton, the Allstate claims adjuster who settled the Wolds' claims, took the same position as Progressive, viewing a claim for loss of consortium or society-as opposed to a claim for NIED-as a derivative claim that would not trigger a separate "per person" Allstate policy limit. Given that Layton and Progressive both agree on the proper. treatment of the loss-of-society claims under Smith's Allstate policy, we find no reasonable basis in this case for allocating any portion of the March 4 global settlement attributable to Cynthia and Greg Wold's individual loss-of-society claims to a separate "per person" policy limit than the limit covering the estate's wrongful death claim. And because the claims for wrongful death and loss of society are the only specific liability claims that the. Wolds were still asserting when they negotiated the global settlement, it follows that Allstate's March 3 settlement payment exhausted the limits of the liability coverage available to Heidi Wold's estate under Smith's Allstate policy.

For this reason, we hold that it was error to declare that the estate had failed to use up Smith's Allstate liability coverage and was barred from asserting a UM/UIM claim against Progressive.

IV. CONCLUSION

We AFFIRM the superior court's ruling on the physical contact issue, REVERSE its ruling on the estate's exhaustion of the Allstate lability coverage, and REMAND for entry of judgment in conformity with this opinion.

CARPENETI, Justice, not participating.

      . AS 28.20.445(F) and AS 28.22.201(b) both provide, in relevant part, that a vehicle that has left the scene of an accident with an insured vehicle is "presumed to be uninsured if the person insured reports the accident to the appropriate authorities within 24 hours."

      . See AS 09.10.070.

      . Cynthia's argument that the unknown driver was an uninsured motorist presents questions of statutory construction, which we answer using our independent judgment. See Progressive Ins. Co. v. Simmons, 953 P.2d 510, 512 (Alaska 1998).

      . Id. at 522.

      . Ch. 70, 28.20.445). § 12, SLA 1984 (creating AS

      . For the source of this language see chapter 108, section 1, SLA 1989.

      . 1 Aran I. Wiss, Uninsurep amp Unperinsurep Motorist Insurance § 9.2, at 565 (Rev.2d ed.1999); see also David J. Marchitelli, Annotation, Uninsured Motorist Indorsement: Construction and Application of Requirement that There Be "Physical Contact" with the Unidentified or Hit-And-Run Vehicle; "Miss-And-Run Cases," 77 ALR. 5th 319, § 2[a] at 340 (2000).

      . 1 Wiorss § 9.7, at 612.

      . 201 W.Va. 615, 499 S.E.2d 619, 623-24 (1997).

      . 75 Ohio St.3d 302, 662 N.E.2d 280 (1996).

      . Hamric, 499 s.E.2d at 623-24.

      . See 1 Widiss § 9.5; Marchitelli, 77 ALR. 5th 319, § 4[a]; see, eg., Autry v. Nationwide Gen. Ins. Co., 948 F.Supp. 615, 619 (S.D.Miss.1996) (applying Mississippi law which contains a statutory physical contact requirement); Orpustan v. State Farm Mut. Auto. Ins. Co., 7 Cal.3d 988, 103 Cal.Rptr. 919, 500 P.2d 1119, 1123 (1972) (in banc) (rejecting the insured's theory that solid evidence that the no-contact accident was caused by the negligence of a phantom driver should satisfy the fraud-prevention statute requiring physical contact as one that could not be judicially adopted); Texas Farmers Ins. Co. v. Deville, 988 S.W.2d 331, 333-34 (Tex.App.1999) (interpreting Tex.Ins.Code Ann. art. 5.06-1(2)(d) to limit coverage for accidents caused by unknown vehicles to cases in which there was physical contact between the insured and unknown vehicles); Mayer v. State Farm Mut. Auto. Ins. Co., 870 S.W.2d 623, 624-25 (Tex.App.1994) (same); Young v. State Farm Mut. Auto. Ins. Co., 711 S.W.2d 262, 262-63 (Tex.App.1986) (same); Hayne v. Progressive N. Ins. Co., 115 Wis.2d 68, 339 NW.2d 588, 590-96 (1983) (determining that statute defining uninsured motor vehicle to include an "unidentified motor vehicle involved in a hit-and-run accident" required actual physical contact between the insured and unidentified vehicles).

      . 7 Cal.3d 988, 103 Cal.Rptr. 919, 500 P.2d 1119 (1972).

      . See id. at 1123.

      . Id.

      . 123 Or.App. 404, 860 P.2d 294 (1993), rev'd in part and affd in part, 319 Or. 93, 873 P.2d 1072 (1994).

      . See To, 860 P.2d at 295-97 (quoting ORS 742.504(2)(g)).

      . See id. To thus implicitly draws a line permitting courts tio override physical contact insurance clauses on public policy grounds only in the absence of parallel statutory requirements. Though the facts of this case make it tempting to tilt toward not toeing To 's tacit line in toto, to do so, we think, would allot too little deference to legislative prerogatives.

      . Curran v. Progressive Northwestern Ins. Co., 29 P.3d 829, 833 (Alaska 2001).

      . See AS 28.20.445(f); AS 28.22.201(b).

      . See Homer Elec. Ass'n v. Towsley, 841 P.2d 1042, 1044 (Alaska 1992); Univ. of Alaska v. Geistauts, 666 P.2d 424, 428 n. 5 (Alaska 1983); State v. Alex, 646 P.2d 203, 208-09 n. 4 (Alaska 1982).

      . See Progressive Ins. Co. v. Simmons, 953 P.2d 510, 516 (Alaska 1998); Geistauts, 666 P.2d at 428 n. 5; Alex, 646 P.2d at 208-09 n. 4; State, Dep't of Natural Res. v. City of Haines, 627 P.2d 1047, 1049 n. 6 (Alaska 1981).

      . Geistauts, 666 P.2d at 428 n. 5; see also Homer Elec. Ass'n, 841 P.2d at 1044.

      . Determining whether the Wolds settled with Allstate for less than the lability limits of the Allstate policy is a question of contract interpretation. See Leisnoi, Inc. v. Stratman, 956 P.2d 452, 454 (Alaska 1998); Singh v. State Farm Mut. Auto. Ins. Co., 860 P.2d 1193, 1199 (Alaska 1993) ("It is well established that a settlement is a contract."). The superior court's answer to that contract question was based on evidence relating to the process by which the Wolds settled with Allstate. Because the superior court's decision was made by reconciling conflicting extrinsic evidence, we review to determine whether substantial evidence supports the trial court's interpretation. See Little Susitna Const. Co. v. Soil Processing, Inc., 944 P.2d 20, 23 (Alaska 1997) ("[Wle do not reweigh the evidence but ask only whether it creates room for diversity of opinion among reasonable people."); Municipality of Anchorage v. Gentile, 922 P.2d 248, 256 (Alaska 1996) ("[Where the trial court relies on conflicting extrinsic evidence ... we are 'confined to determining whether the facts support the trial court's interpretation.' ") (quoting Fairbanks N. Star Borough v. Tundra Tours, Inc., 719 P.2d 1020, 1025 (Alaska 1986)); see also Tundra Tours, 719 P.2d at 1024-25 ("[The standard used in reviewing factual findings must be applied where extrinsic evidence is in dispute."); Jackson v. Nangle, 677 P.2d 242, 247 n. 4 (Alaska 1984).

      . AS 28.20.445(e)(1). An identical provision appears in AS 28.22.201(a)(1).

      . 29 P.3d 829, 833 (Alaska 2001) (interpreting AS 28.20.445(e)(1)}.

      . AS 28.20.445(e)(1).

      . See AS 09.55.580.

      . See generally Mattingly v. Sheldon Jackson Coll., 743 P.2d 356, 365 (Alaska 1987).

      . See AS 09.15.010; Gillispie v. Beta Constr. Co., 842 P.2d 1272, 1273 (Alaska 1992) (AS 09.15.010 creates parental cause of action for loss of child separate from wrongful death action brought by child's estate).

      . Cynthia's opening brief contends, for example, that "[the facts show that $135,600, was paid by Allstate to compromise ... Cynthia's NIED claim under the liability provisions of the Allstate[ ] policy. An additional $135,600, was paid to compromise the Estate's UM claims ... associated with the phantom vehicle."

      . (Record cites omitted.)

      . See AS 09.10.070.

      . Gillispie v. Beta Constr., 842 P.2d 1272 (Alaska 1992).

      . Progressive identifies Gonzales v. Allstate Ins. Co., 122 N.M. 137, 921 P.2d 944 (1996), Spaur v. Allstate Ins. Co., 942 P.2d 1261 (Colo.App.1996), and Medley v. Frey, 660 N.E.2d 1079 (Ind.App.1996), as demonstrating that other courts interpreting similar policy language hold that emotional damage to a survivor is not a separate bodily injury triggering a second unit of coverage.

      . Indeed, the issue may not be amenable to a definitive resolution, since much of the case law cited by the parties in their supplemental briefing seems to suggest that whether a loss-of-society claim should trigger separate "per person'" coverage may hinge more on a particular policy's definition of the scope of its bodily injury coverage than on the inherent nature of a cause of action for loss of society. Compare, e.g., Abellon v. Hartford Ins. Co., 167 Cal.App.3d 21, 212 Cal.Rptr. 852, 854-55 (1985); Employers Cas. Ins. Co. v. Foust, 29 Cal.App.3d 382, 105 Cal.Rptr. 505, 508 (1972); Giardino v. Fierke, 160 Ill. App.3d 648, 112 Ill.Dec. 559, 513 N.E.2d 1168, 1173 (1987); Williamson v. Historic Hurstville Ass'n, 556 So.2d 103, 107 (La.App.1990); Valliere v. Allstate Ins. Co., 324 Md. 139, 596 A.2d 636, 638 (1991) (holding that although loss of consortium or other service was not a "bodily injury" within meaning of usual policy language, policy in question specifically defined term "bod-fly injury" to include loss of services and insurer was bound by that definition); Voorhees v. Preferred Mut. Ins. Co., 128 N.J. 165, 607 A.2d 1255, 1261 (1992); Wolfe v. State Farm Ins. Co., 224 N.J.Super. 348, 540 A.2d 871, 873-74 (App.Div.1988); Lavanant v. Gen. Accident Ins. Co. of Am., 79 N.Y.2d 623, 584 NY.S.2d 744, 595 N.E.2d 819, 822 (1992) (concluding that "bodily injury" defined in a property insurance policy as "bodily injury, sickness, disease or death" was ambiguous); and Allstate Ins. Co. v. Handegard, 70 Or.App. 262, 688 P.2d 1387, 1388-89 (1984), with Spaur v. Allstate Ins. Co., 942 P.2d 1261, 1263 (Colo.App.1996); Medley v. Frey, 660 N.E.2d 1079, 1080-81 (Ind.App.1996); Allstate Ins. Co. v. Diamant, 401 Mass. 654, 518 N.E.2d 1154, 1156 (1988) ('The term 'personal injury' is broader and includes not only physical injury but also any affront or insult to the reputation or sensibilities of a person. 'Bodily injury,' by comparison, is a narrow term and encompasses only physical injuries to the body and the consequences thereof."); State Farm Mut. Auto. Ins. Co. v. Descheemaeker, 178 Mich.App. 729, 444 N.W.2d 153, 154-55 (1989); Gonzales v. Allstate Ins. Co., 122 N.M. 137, 921 P.2d 944, 946-47 (1996); and Richie v. Am. Family Mut. Ins. Co., 140 Wis.2d 51, 409 N.W.2d 146, 147-48 (App.Ct.1987) (distinguishing between personal injury and bodily injury).

      . Because we have limited our decision to the propriety of allocating the Wolds' loss-of-society settlement to separate "per person" limits under the Allstate policy, we express no view as to the proper handling of these individual claims under the specific terms of Progressive's UM/UIM policy-an issue that the parties have not addressed and that we think should properly remain open for consideration by the superior court in the first instance, if it arises.