author: SANDSTROM, Justice.

text:
    2005 ND 75
    STATE of North Dakota, by and through the STATE FIRE AND TORNADO FUND OF THE NORTH DAKOTA INSURANCE DEPARTMENT, Plaintiff, Counterclaim Defendant, Crossclaim Defendant, and Appellee, v. NORTH DAKOTA STATE UNIVERSITY, Defendant, Counterclaimant, Third-Party Plaintiff, and Appellant, v. Hartford Steam Boiler Inspection and Insurance Company, Third-Party Defendant, Crossclaimant, and Appellee.
    No. 20040228.
    Supreme Court of North Dakota.
    April 6, 2005.

      Leo F.J. Wilking, Special Assistant Attorney General, Nilles, Hansen & Davies, Ltd., Fargo, N.D., for State Fire and Tornado Fund of the North Dakota Insurance Department.
    Sara Gullickson McGrane, Felhaber Larson Fenlon Vogt, Minneapolis, MN, for North Dakota State University.
    Terrence R. Joy (argued), Robins, Kap-lan, Miller & Ciresi, L.L.P., Michael P. McNamee (appeared), Meagher <& Geer, P.L.L.P., Minneapolis, MN; and W. Todd Haggart (appeared), Vogel Law Firm, Fargo, N.D., for Hartford Steam Boiler Inspection and Insurance Company.
   SANDSTROM, Justice.

[¶ 1] North Dakota State University (“NDSU”) appealed from a judgment dismissing its claims against the State Fire and Tornado Fund of the North Dakota Insurance Department (“Fund”) and Hartford Steam Boiler Inspection and Insurance Company (“Hartford”) to collect insurance proceeds for water damage to various campus structures following a June 2000 rainstorm. We conclude the district court correctly ruled, as a matter of law, the insurance policies in question did not provide NDSU coverage for the claimed water damage. We affirm.

I

[¶ 2] During the evening and early morning hours of June 19 and 20, 2000, a severe rainstorm struck the Fargo area, dumping approximately seven inches of rain during a seven-hour period. By the time the rainfall stopped at about 2 a.m. on June 20, a large amount of water, waist-deep in some places, had accumulated in and around NDSU’s campus. The Fargo-Dome is not owned by NDSU, but the facility is located near the campus and is connected to NDSU’s heating plant and Industrial Agriculture and Computer Center (“IACC”) by a 4,295 foot-long steam tunnel. Water on the surface of the ground outside of the FargoDome began cascading through its loading dock doors, and by 4 a.m. on June 20, more than eight feet of water covered its floor. At about 11 a.m. on June 20, NDSU employees who were inspecting the steam tunnel heard a surge of water in the tunnel coming from the direction of the FargoDome and exited the tunnel. The heating plant and the IACC received significant amounts of water through the steam tunnel, and consultants concluded the “floodwater in the FargoDome contributed significantly to the flooding in the Heating Plant and the IACC.”

[¶ 3] NDSU also suffered water damage to its underground direct buried steam line, which branches off from the main steam line in the steam tunnel and supplies steam to many of NDSU’s buildings. The direct buried steam lines are connected every 200 feet by ten-foot by ten-foot concrete vaults. The steam line between each vault is buried three to four feet below the surface of the ground. The vaults are accessed through manhole covers on the concrete ceilings of the vaults, which are two inches above ground level. Moisture entered the insulation of the direct buried steam line system, wearing away the insulation and causing the lines to fail.

[¶ 4] NDSU submitted claims for coverage to their insurers, the Fund and Hartford. The insurers denied coverage, claiming the water damage was excluded by the flood and surface water exclusions included in their respective policies. In February 2002, the Fund filed a declaratory judgment action against NDSU, seeking a declaration that its property insurance policy did not cover NDSU’s claim for losses. NDSU filed a counterclaim for coverage against the Fund and filed a third-party claim against Hartford for coverage under its policy. Hartford cross-claimed against the Fund for contribution or indemnity.

[¶ 5] The parties filed cross-motions for summary judgment. The district court granted summary judgment in favor of Hartford regarding NDSU’s claim for damages to its steam tunnel, the IACC and the direct buried steam line, and in favor of the Fund regarding the claim for damages to the heating plant and the IACC. The court ruled as a matter of law that the respective insurance policies did not cover the water damage to the steam tunnel, the heating plant, the IACC and the direct buried steam line because of surface water exclusions contained in the policies. After the parties settled NDSU’s other claims against the insurers, the court entered a final judgment.

[¶ 6] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. §§ 32-23-01 and 27-05-06. NDSU’s appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. §§ 32-23-07 and 28-27-01.

II

[¶ 7] NDSU argues the district court erred in granting summary judgment in favor of the Fund and Hartford.

[¶ 8] The standard of review for summary judgments is well established. In Zuger v. State, 2004 ND 16, ¶ 7, 673 N.W.2d 615 (citations omitted), we explained:

Summary judgment is a procedural device for promptly disposing of a lawsuit without a trial if there are no genuine issues of material fact or inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. “Whether summary judgment was properly granted is ‘a question of law which we review de novo on the entire record.’ ” On appeal, this Court decides if the information available to the trial court precluded the existence of a genuine issue of material fact and entitled the moving party to summary judgment as a matter of law. Summary judgment is appropriate against parties who fail to establish the existence of a factual dispute on an essential element of a claim on which they will bear the burden of proof at trial.

Mere speculation is not enough to defeat a motion for summary judgment, and a scintilla of evidence is not sufficient to support a claim. Id. at ¶ 8.

A

[¶ 9] NDSU contends the court erred in ruling the surface water exclusions in the insurers’ policies applied and precluded its claim for water damage to the steam tunnel, the heating plant, and the IACC.

[¶ 10] The Fund’s insurance policy provides for a maximum aggregate payout of $10,000 for flood damage per occurrence and provides:

B. EXCLUSIONS
1. We will not pay for loss or damage caused directly or indirectly by any of the following. Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss.
g. Water
(1) Flood, surface water, waves, tides, tidal waves, overflow of any body of water, or their spray, all whether driven by wind or not;

[¶ 11] Hartford’s policy similarly provided:

B. EXCLUSIONS
1. We will not pay for loss or damage caused by or resulting from:
d. Flood, surface water, waves, tides, tidal waves, overflow of any body of water, or their spray, all whether driven by wind or not.

[¶ 12] Interpretation of an insurance contract is fully reviewable on appeal and is a question of law for a court to decide, so we independently examine and construe the insurance contract to determine whether the district court erred in its construction. Grinnell Mut. Reinsurance Co. v. Lynne, 2004 ND 166, ¶ 20, 686 N.W.2d 118. In Ziegelmann v. TMG Life Ins. Co., 2000 ND 55, ¶ 6, 607 N.W.2d 898 (citations omitted), we summarized the standards for construing an insurance contract:

Our goal when interpreting insurance policies, as when construing other contracts, is to give effect to the mutual intention of the parties as it existed at the time of contracting. We look first to the language of the insurance contract, and if the policy language is clear on its face, there is no room for construction. “If coverage hinges on an undefined term, we apply the plain, ordinary meaning of the term in interpreting the contract.” While we regard insurance policies as adhesion contracts and resolve ambiguities in favor of the insured, we will not rewrite a contract to impose liability on an insurer if the policy unambiguously precludes coverage. We will not strain the definition of an undefined term to provide coverage for the insured. We construe insurance contracts as a whole to give meaning and effect to each clause, if possible. The whole of a contract is to be taken together to give effect to every part, and each clause is to help interpret the others.

[¶ 13] Exclusions from coverage in an insurance contract must be clear and explicit and are strictly construed against the insurer. Nationwide Mut. Ins. Cos. v. Lagodinski, 2004 ND 147, ¶ 9, 683 N.W.2d 903. Although we construe exclusionary provisions strictly, we will not rewrite a contract to impose liability on an insurer if the policy unambiguously precludes coverage. Id.

[¶ 14] Because the term “surface water” is not defined in the policy, we look to its plain and ordinary meaning. In 5 Ap-pleman, Insurance Law and Practice § 3145, at p. 463 (1970) (footnote omitted), “surface water” is described as:

water which is derived from falling rain or melting snow, or which rises to the surface in springs, and is diffused over the surface of the ground, while it remains in such diffused state, and which follows no defined course or channel, which does not gather into or form a natural body of water, and which is lost by evaporation, percolation, or natural drainage.

See also Heller v. Fire Ins. Exch., 800 P.2d 1006, 1008-09 (Colo.1990) (footnotes omitted) (“Surface water is water from melted snow, falling rain, or rising springs, lying or flowing naturally on the earth’s surface, not gathering into or forming any more definite body of water than a mere bog, swamp, slough, or marsh, and lost by percolation, evaporation or natural drainage. Surface water is distinguished from the water of a natural stream, lake, or pond, is not of a substantial or permanent existence, has no banks, and follows no defined course or channel”); Smith v. Union Auto. Indem. Co., 323 Ill.App.3d 741, 257 Ill.Dec. 81, 752 N.E.2d 1261, 1267 (2001) (“Generally, the cases define ‘surface water’ as water that (1) derives from natural precipitation such as rain or melting snow; (2) flows over or accumulates on the surface of the ground; and (3) does not form a definite body of water or follow a defined watercourse”); State Farm Lloyds v. Marchetti 962 S.W.2d 58, 61 (Tex.App.1997) (“ ‘Surface water’ is defined as water or natural precipitation diffused over the surface of the ground until it either evaporates, is absorbed by the land, or reaches channels where water naturally flows”). The cases consistently characterize “surface water” as having a terranean nature “which does not form a well-defined body of water — as opposed to water below the surface, whether from a natural or unnatural source.” Marchetti 962 S.W.2d at 61. Compare Western Nat’l Mut. Ins. Co. v. University of North Dakota, 2002 ND 63, ¶ 10, 643 N.W.2d 4 (“Other courts have ... recognized flood water has a terranean nature for water overflowing its natural banks as opposed to water below the surface”).

[¶ 15] Although the definition of surface water varies little in the case law, courts have had difficulty applying the definition to particular sets of facts. The parties and the district court focused on Heller, Marchetti, and Smith in analyzing whether the water that caused damage to the steam tunnel, the heating plant, and the IACC constituted “surface water” within the meaning of the exclusion provisions. NDSU relied on Heller and Mar-chetti. The insurers relied on Smith.

[¶ 16] In Heller, 800 P.2d at 1007, the homeowners discovered that water from spring runoffs of melted snow had caused extensive damage to their property because the regular path of the water had been diverted onto their property by three parallel trenches, “fifteen to twenty feet long, three feet wide, six inches deep, and lined with plastic sheets, rocks and tree limbs.” The trenches had been constructed behind the homeowners’ property by an “unknown person, or persons,” and the homeowners’ property had never been affected before by spring runoffs during the homeowners’ ten-year occupancy. Id. The court concluded the surface water exclusion did not preclude coverage:

Here, the water originated from natural runoff of melted snow, but was diverted into man-made trenches that were fifteen to twenty feet long and six inches deep. The trenches diverted the regular path of the melted snow over a natural ridge. These trenches were “defined channels” that diverted the regular flow of the water, preventing “percolation, evaporation, or natural drainage.” In examining the characteristics of the water that damaged the Hellers’ property, we conclude that the runoff lost its character as surface water when it was diverted by the trenches and therefore was not within the surface water exclusion contained in the Hellers’ policy.

Id. at 1009.

[¶ 17] In Marchetti, 962 S.W.2d at 59, the homeowners sought coverage for their home and its contents “as a result of the backup of water and raw sewage through a drain opening in the utility room of their home” after heavy rains. The court ruled the surface water exclusion did not preclude coverage:

[T]he fact that excessive surface water may have initiated the chain of events which led to appellees’ loss is immaterial. Here, excessive rainfall caused the sanitation sewer system to exceed its capacity and direct waters back through the underground lines from the street into appellees’ home, in turn, causing non-flood water and sewage to accidently discharge or overflow from within the plumbing system in their home. We hold that when the loss is a consequence of the invasion of the insured premises by non-flood water, even though the invasion may have been proximately caused by flood water, the exclusion does not apply.

Id. at 61.

[¶ 18] In Smith, 257 Ill.Dec. 81, 752 N.E.2d at 1263, a storm deluged northeastern Illinois with 17 inches of rain during a 24-hour period. The window wells in the basement of the homeowners’ home filled with water, causing the windows to break and the basement to fill with five feet of water. Id. The evidence established that the water that entered the homeowners’ residence “ ‘was rain water or water on land whose natural absorption was prevented by and/or whose flow was altered and diverted from its natural flow by manmade objects and constructions to the east of the insured premises, including without limitation streets, other paved surfaces, houses and associated construction and landscaping.’ ” Id. at 1265. The homeowners argued the water was not “surface water,” because “the term refers to water flowing naturally whose flow has not been altered in any way by man-made structures.” Id. at 1266. After citing Heller, Marchetti, and other cases for the definition of surface water, the court concluded the surface water exclusion precluded coverage:

We note that none of these cases defines “surface water” as water whose flow has not been affected in any way by human construction. While some of the cases refer to “natural drainage,” or water “flowing naturally,” those terms are used to distinguish surface water from water in a defined watercourse or a lake or pond. There is no indication in the case law that “naturally” should be interpreted to mean completely untouched or unaffected by man-made structures. It seems to us that if we did adopt plaintiffs’ proposed definition, it would be nearly impossible for surface water to exist, given the highly developed state of our society and the fact that few places without roads or other man-made structures exist today. This causes us to conclude that plaintiffs’ proposed definition of “surface water” does not reflect the popular and ordinary meaning of the term. The average reasonable person would not limit surface water to water whose flow has not been altered in any way by paved surfaces, buildings, or other structures.

Id. at 1267.

[¶ 19] The court in Smith, 257 Ill.Dec. 81, 752 N.E.2d at 1267, also distinguished the Heller case, noting the “\Heller\ court did not hold that water whose flow was altered in any way by a man-made object ceased to be surface water; rather, that distinction was lost only when the water became part of defined channels.” The court declined to define surface water so broadly, and concluded that “surface water means water derived from natural precipitation that flows over or accumulates on the ground without forming a definite body of water or following a defined watercourse.” Id. at 1268. The court held that under this definition, the water that damaged the homeowners’ residence was surface water as a matter of law:

It was undisputed that the water that entered plaintiffs’ basement was in part rainwater or runoff that accumulated as a result of a torrential rainstorm. There was no evidence that the water emptied into plaintiffs’ basement from a defined waterway or channel. Accordingly, we agree with the trial court that there was no genuine issue of material fact as to whether the water in plaintiffs’ basement met the definition of “surface water.” Therefore, Union was entitled to judgment as a matter of law under the policy’s water damage exclusion.

Id.

[¶ 20] NDSU analogized the entry of water into the FargoDome, and several hours later, the surge of water from the FargoDome through the steam tunnel and into the heating plant and the IACC, to the water that lost its status as surface water by flowing into underground sewer lines in Marchetti, and to the water that lost its character as surface water by being artificially diverted by trenches before damaging the homeowners’ property in Heller. NDSU also argued Smith is distinguishable because, although the Far-goDome is analogous to the window well in Smith, “NDSU does not own or maintain the FargoDome, and it is not seeking coverage for damages caused to the Fargo-Dome.” The district court rejected NDSU’s arguments:

Similar to the Smith case, this Court finds that the water that entered the FargoDome was surface water. Prior to entering the FargoDome, the rainwater accumulated in the Fargo area without forming a definite body of water. The subsequent traverse into the Steam Tunnel did not change the water’s character by following a defined watercourse, in part because the Steam Tunnel was never meant to carry water, unlike the trenches in Heller. It would be no different than if surface water had entered the first floor of a house and percolated into the basement through a stairwell. It would be absurd to classify a stairwell as a channel, or that the water’s character had changed from surface water to water within a system. In the same fashion water entering the Steam Tunnel did not change the character of the surface water which inundated the FargoDome. NDSU’s argument prompts the quote, “An insured may not avoid a contractual exclusion merely by affixing an additional label or separate characterization to the act or event causing the loss.” Kish [v. Insurance Co. of North America], 125 Wash.2d 164, 883 P.2d 308, 311 (1994).

[¶ 21] We agree with the district court’s analysis, which finds further support in a factually similar recent decision of the Texas Court of Appeals, which decided the Marchetti case. In Valley Forge Ins. Co. v. Hicks Thomas & Lilienstern, L.L.P., — S.W.3d -, — -, 2004 WL 2903521, *1 (Tex.App.2004), heavy rains from a tropical storm caused a bayou to overflow its banks and flood the downtown Houston area. According to the court, “[w]ater rushed into the Albert Thomas Convention Center, broke through an interior basement wall of that building, flowed into a downtown parking garage, then into the pedestrian tunnel system, and finally poured into the Bank of America building,” damaging the electrical equipment that supplied power to the entire building. Id. A law firm located in the Bank of America building was forced to relocate to an alternate interim location, and the law firm sought coverage under its insurance policy for lost business income and extra expenses. Id. The insurance policy, however, excluded “losses due to flood, surface water, overflow of any body of water, or from water under the ground surface.” Id. The court distinguished Marchetti, in which “the composition of the water itself was altered ... [by] combining with sewage,” and concluded coverage was excluded:

Tropical Storm Allison deluged the area with rain, creating a large amount of surface water and causing Buffalo Bayou to overflow its banks. Once the water entered the convention center, it behaved as strong waters behave — it caved in an interior wall and rushed onward. It did not back up into a sewer line, cause a water main to burst, commingle with water from an underground swimming pool, or otherwise change or dilute its nature. It simply flowed onward, as flood and surface water is wont to do, obeying the law of gravity and flowing into man-made underground structures. The law firm’s loss was caused by a combination of flood and surface water; accordingly, the loss was excluded under the terms of the policy.

Id. at *4.

[¶ 22] We agree with the implicit recognition of the court in Valley Forge that ownership of water-inundated facilities does not impact the surface water analysis and that surface water does not lose its character as surface water simply by being artificially channeled underground. NDSU does not claim the steam tunnel was built for the purpose of channeling water and does not claim the water mixed with sewage or anything else before damaging the steam tunnel, the heating plant, and the IACC. As in Valley Forge, 2004 WL 2903521, *4, once the water entered the FargoDome, “[i]t simply flowed onward, as flood and surface water is wont to do, obeying the law of gravity and flowing into man-made underground structures.” We conclude the district court did not err in ruling as a matter of law that the water that damaged these structures was surface water and did not lose its character as surface water by being diverted underground through man-made structures.

[¶ 23] NDSU also argues the district court erred in failing to apply the efficient proximate cause analysis to its claim for coverage for its steam tunnel, heating plant, and the IACC. In Western, 2002 ND 63, ¶ 20, 643 N.W.2d 4, this Court concluded “North Dakota has statutorily adopted the efficient proximate cause doctrine, and a property insurer may not contractually preclude coverage when the efficient proximate cause of a loss is a covered peril.” The efficient proximate cause doctrine is “the universal method for resolving coverage issues involving the occurrence of covered and excluded perils.” Id. at ¶ 17. The efficient proximate cause “ ‘is not necessarily the last act in the chain of events, nor necessarily is it the triggering cause,’ and the efficient proximate cause ‘look[s] to the quality of the links and the chain of causation’ and ‘is considered the predominating cause of the loss.’ ” Id. at ¶ 32. Western involved water damage to campus buildings at the University of North Dakota during the 1997 flood in Grand Forks. During the flood, the City shut down two lift stations, after which water entered campus buildings through the sewer system, causing extensive damage. Because “[tjhere was evidence sewer backup could have occurred separately and independently of the flood and could have caused damage without the flood,” we reasoned “the flood and sewer backup were both part of the chain of causation for UND’s property damage,” and concluded the jury was entitled to determine “the flood was not the' efficient proximate cause of UND’s property damage.” Id. at ¶ 33.

[¶ 24] NDSU contends the court failed to consider all of the events in the chain of causation leading to water entering and damaging the steam tunnel, the heating plant, and the IACC. According to NDSU, there were four “link[s]” in the “chain of causation” in this case: (1) the “rain”; (2) the “accumulation of surface water that occurred on and around the NDSU campus”; (3) the “water diversion into the basement of the FargoDome, which could not be flood or surface water”; and (4) the “non-excluded water that suddenly entered NDSU’s otherwise dry, underground Steam Tunnel.” NDSU claims, at the very least, a jury should have been allowed to determine which of these events was the efficient proximate cause.

[¶ 25] In Kish v. Insurance Co. of North America, 125 Wash.2d 164, 883 P.2d 308, 311 (1994), the court explained:

The efficient proximate cause rule applies only where two or more independent forces operate to cause the loss. “When, however, the evidence shows the loss was in fact occasioned by only a single cause, albeit one susceptible to various characterizations, the efficient proximate cause analysis has no application. An insured may not avoid a contractual exclusion merely by affixing an additional label or separate characterization to the act or event causing the loss.” Chadwick v. Fire Ins. Exch., 17 Cal.App.4th 1112, 1117, 21 Cal.Rptr.2d 871 (1993).

The court in Kish, at 312, concluded rain and flood were not two separate perils for application of the efficient proximate cause doctrine because rain “is a well-recognized and common part of a flood.” See also Pieper v. Commercial Underwriters Ins. Co., 59 Cal.App.4th 1008, 69 Cal.Rptr.2d 551, 558 (1997) (arson and brush fire were not separate and distinct perils that caused loss); Chadwick, 21 Cal.Rptr.2d at 874 (builder’s negligence and defective framing were not separate perils, because “[t]o say builder negligence ‘caused’ the defective framing is, in this context, to indulge in misleading wordplay”); Finn v. Continental Ins. Co., 218 Cal.App.3d 69, 267 Cal.Rptr. 22, 24 (1990) (leakage and broken pipes were not two distinct and separate perils); 5 E. Holmes, Holmes’s Appleman on Insurance 2d § 6.2, at p. 185 (1996) (footnote omitted) (“The efficient proximate cause rule does not apply to a loss caused by a discernable cause even though the insured attempts to characterize the cause in various ways to create the appearance of multiple causes”).

[¶ 26] We agree with the district court’s resolution of this issue:

In this case there were not two separate or distinct events. The fact that the water took 9 to 10 hours to reach the IACC and Heating Plant is irrelevant. The length of time was merely a result of one continuous flowing of the water. Unlike the Western National case, there was nothing like a shut down of sewer lift stations. NDSU merely claims the characterization of the water changed without delineating a separate event.

The undisputed facts establish that surface water, an excluded peril under both insurance policies, was the only cause of water damage to the steam tunnel, the heating plant, and the IACC. We conclude the district court did not err in failing to apply the efficient proximate cause doctrine under these circumstances.

[¶ 27] We have considered NDSU’s other arguments concerning the steam tunnel, the heating plant, and the IACC, and we deem them to be without merit. We conclude the district court did not err in ruling as a matter of law that the surface water exclusions in the insurers’ policies were applicable and precluded NDSU’s claim for water damage to these structures.

B

[¶ 28] NDSU argues the district court erred in granting summary judgment in favor of Hartford regarding its claim for damages to the direct buried steam line because there is a genuine issue of fact whether water that entered the lines through manhole covers or moisture from saturated ground below the surface caused the lines to fail. The court ruled the direct buried steam line was damaged by surface water as a matter of law.

[¶ 29] NDSU acknowledges that surface water infiltrated the direct buried steam line through openings in the manhole covers in the vaults. At one point during his deposition, Bruce Frantz, director of the Physical Plant at NDSU, testified:

Q. So then you talked before during the previous portion of the deposition about water coming in through the vaults, the manhole covers in the vaults.
A. Um-hum.
Q. And that caused the insulation to get wet. How would that have happened physically?
A. Well, the manhole covers are not watertight.
Q. Right.
A. So if water was laying on the surface, water would have gone through the penetrations, because there are openings, generally two or three openings where you can get some kind of bar underneath so you can lift the manhole up. So you’ve got an opening there.
Q. Right.
A. Plus, where the steel manhole covers sit on the steel manhole ring, it’s not watertight, so water would seep in around that also.
Q. So it would fill up in the vault, and then how would that water get actually into the insulation of the piping from inside the vault?
A. Well, the insulation in the vault is exposed, so as water is running down around the lid, it could be dripping on the steampipe and the insulation.

[¶ 30] At another point in his deposition, Frantz testified:

Q. Okay. Let’s talk about the steam lines for a second. What is your understanding of the nature of the damage to the direct buried steam lines? How were they damaged?
A. Basically loss of insulating power of the insulation around the line because of the water that got into the clay tile style pipes.
Q. And so the insulation became wet when water seeped through the ground from the rain and into the tile pipe insulation, into the tile pipe?
A. Either through the ground or through the vaults.
Q. And so water would have entered through — into the vaults and then fallen onto the insulation on the pipes?
A. Well, the vaults were filled with water. Then the pipes that run through the vaults, the water would have gone out laterally to follow the lines.
Q. I see. And so it would have been flush up against the insulation and the insulation would have absorbed the water, causing the insulation to get wet.
A. Correct.
Q. And because the insulation was wet, it wasn’t effective in its function.
A. Correct.

(Emphasis added).

[¶ 31] Based on Frantz’s statement that the insulation became wet from water “[e]ither through the ground or through the vaults,” NDSU argues the court erred in granting summary judgment because this evidence raises a genuine issue of material fact concerning the efficient proximate cause of damage to the direct buried steam line.

[¶ 32] Frantz’s testimony, read in total, does not indicate that he believed the damage occurred either through subterranean moisture or through surface water that had poured into the vaults through the manhole covers. At best, his testimony suggests that Frantz considered the possibility that subterranean moisture and surface water were concurrent causes of the damage. However, a covered peril that is merely a concurrent cause of damage is insufficient to allow coverage under the efficient proximate cause doctrine recognized in North Dakota. In 7 L. Russ & T. Segalla, Couch on Insurance 3d § 101:57, at pp. 101-152, 101-153 (1997) (footnotes omitted), the authors explain:

The efficient proximate cause rule allows recovery for a loss caused by a combination of a covered and an excluded risk only if the covered risk was the efficient proximate cause of the loss, meaning that the covered risk set the other causes in motion which, in an unbroken sequence, produced the result for which recovery is sought.... The concurrent cause rule, on the other hand, takes the approach that coverage should be allowed whenever two or more causes do appreciably contribute to the loss, and at least one of the causes is an included risk under the policy.

See also Paulucci v. Liberty Mut. Fire Ins. Co., 190 F.Supp.2d 1312, 1319 (M.D.Fla.2002); Waldsmith v. State Farm Fire & Cas., 232 Cal.App.3d 693, 283 Cal.Rptr. 607, 608 (1991); Howell v. State Farm Fire and Cas. Co., 218 Cal.App.3d 1446, 267 Cal.Rptr. 708, 715-16 (1990); Comhusker Cas. Co. v. Farmers Mut. Ins. Co., 268 Neb. 168, 680 N.W.2d 595, 601 (2004).

[¶ 33] Viewing Frantz’s statement in the light most favorable to NDSU, we conclude it is no more than a scintilla of evidence insufficient for a reasonable trier of fact to find that subterranean moisture was the efficient proximate cause of the damage to the direct buried steam line. See Iglehart v. Iglehart, 2003 ND 154, ¶ 10, 670 N.W.2d 343. The district court did not err in granting summary judgment in favor of Hartford on NDSU’s claim for damages to the direct buried steam line.

Ill

[¶ 34] The judgment is affirmed.

[¶ 35] GERALD W. VANDE WALLE, C.J, DONALD L. JORGENSEN, D.J., and MARY MUEHLEN MARING, J., concur.

[¶ 36] The Honorable DONALD L. JORGENSEN, D.J., sitting in place of KAPSNER, J., disqualified.

[¶ 37] The Honorable WILLIAM A. NEUMANN, a member of the Court when this case was heard, resigned effective March 14, 2005, and did not participate in this decision.


source: Caselaw Access Project

author: ZINTER, Justice. MEIERHENRY, Justice

license: Public Domain

text:
    2005 SD 29
    Scott GLOE, Plaintiff and Appellant, v. IOWA MUTUAL INSURANCE COMPANY, Defendant and Appellee.
    Nos. 23088, 23095.
    Supreme Court of South Dakota.
    Argued Aug. 24, 2004.
    Decided March 2, 2005.

      Nancy J. Turbak, Watertown, SD, for plaintiff and appellant.
    Acie W. Matthews, Sioux Falls, SD, for defendant and appellee.
   ZINTER, Justice.

[¶ 1.] Scott Gloe’s parents were struck and killed by an automobile. Gloe’s parents did not reside in his household, they were not insured under his auto policy, and neither Gloe nor his covered automobile was involved in the accident. Nevertheless, Gloe asserted a wrongful death claim under the underinsured motorist (UIM) provision of his auto policy with Iowa Mutual. The trial court entered a declaratory judgment determining that there was no UIM coverage for Gloe’s claim, and he appeals. We affirm because (1) Iowa Mutual’s policy only provided UIM coverage for insureds who suffer bodily injury or death, (2) Gloe suffered no bodily injury or death, (3) his parents were not insureds under his policy, and (4) South Dakota’s statutes do not mandate UIM coverage for pecuniary losses insureds may suffer as a result of the death of third parties who have no connection with the insured’s policy.

Facts and Procedural History

[¶ 2.] On September 1, 2001, pedestrians Larry and Verna Mae Gloe were struck and killed in an auto accident. Pursuant to SDCL 21-5-1, Scott Gloe, their son, was appointed as the personal representative to pursue wrongful death claims on behalf of the decedents’ statutory beneficiaries.

[¶ 3.] Two insurers provided liability coverage for this accident. American Family Insurance Company insured the automobile, with liability limits of $25,000 per person. Farmer’s Insurance Group insured the driver, with liability limits of $100,000 per person. Each company paid its limits: $125,000 was paid for the wrongful death claims arising from Larry Gloe’s death, and $125,000 was paid for the wrongful death claims arising from the death of Verna Mae Gloe. These sums were paid in return for a release of the tortfeasor and the liability carriers. Scott Gloe, his brother Michael Gloe, and their sister Karen Nelson received the wrongful death proceeds.

[¶ 4.] After settling with the liability carriers, Scott Gloe brought this declaratory action seeking to establish UIM coverage under his policy with Iowa Mutual. Gloe’s claim was asserted in his individual capacity, and he sought to recover additional uncompensated wrongful death damages. Under South Dakota law, those damages are limited to Gloe’s pecuniary loss caused by the death of his parents.

[¶ 5.] Gloe’s policy with Iowa Mutual provided UIM benefits, with limits of $250,000 per person and $500,000 per occurrence. Gloe conceded that if Iowa Mutual’s policy provided UIM coverage, Iowa Mutual was entitled to set-off the amount that he received from the two liability insurers. However, Iowa Mutual denied that its policy provided any UIM coverage. Iowa Mutual’s denial was based upon a policy endorsement that only provided UIM coverage for “bodily injury or death” sustained by an “insured.” Because Gloe sustained no bodily injury or death in this accident, and because Gloe’s parents were not insureds under his policy, Iowa Mutual contended that its UIM coverage was unavailable.

[¶ 6.] Gloe acknowledged the policy language, but argued that the provision requiring “bodily injury or death” by an “insured” was incompatible with South Dakota’s law requiring UIM coverage. The trial court disagreed. Gloe now appeals, raising the following issue:

1. Whether South Dakota statutes preclude an insurer from restricting UIM coverage to bodily injury or death sustained by an insured.

By notice of review, Iowa Mutual raises the following issues:

2. Whether Gloe is a real party in interest with an individual claim for damages after he settled the wrongful death claims on behalf of the wrongful death beneficiaries.
3.Whether the personal representative’s release of the tortfeasor, precludes Gloe’s individual claim.

Analysis and Decision

[¶ 7.] “We review declaratory judgments as we would any other judgment or order.” Nelson v. Farmers Mutual Insurance Co. of Nebraska, 2004 SD 86, ¶ 5, 684 N.W.2d 74, 76 (citing SDCL 21-24-13; Parks v. Cooper, 2004 SD 27, ¶ 20, 676 N.W.2d 823, 828-29). In this case, our review involves a question of law regarding the interpretation of statutes and their application to insurance contracts. That review is de novo. See Id. (citing Roden v. General Casualty, 2003 SD 130, ¶ 6, 671 N.W.2d 622, 625); Jones v. AIU Ins. Co., 51 P.3d 1044, 1045 (Colo.Ct.App.2001) (stating that whether a statute mandates coverage is a matter of statutory interpretation subject to de novo review).

South Dakota’s Statutes Do Not Mandate UIM Coverage for Wrongful Death Damages Arising Out Of the Death of a Third Party Who Has No Relationship With the Insurance Policy.

[¶ 8.] “In South Dakota, automobile insurance providers must provide underin-sured motorist coverage in their policies.” Nelson, 2004 SD 86, ¶ 8, 684 N.W.2d at 77 (citing SDCL 58-11-9.4). In Nelson, we noted that “courts in other jurisdictions are split on the propriety of allowing an insured, pursuant to statutorily required underinsured motorist policy provision[s], to recover damages arising from bodily injury or death of a third person.” Id. ¶ 7. However, we did not “address the wisdom or public policy of allowing such suits” under our statutes because the insurer in that case conceded coverage. Id.

[¶ 9.] The policy language at issue here provides coverage for damages an insured is “legally entitled to recover” from the owner or operator of an underin-sured motor vehicle because of “bodily injury or death” sustained by “an insured.” The policy provides:

We will pay compensatory damages which an ‘insured’ is legally entitled to recover from the owner or operator of an ‘underinsured motor vehicle’ because of ‘bodily injury:’
1. Sustained by an ‘insured,’ and
2. Caused by an accident.

The policy defines ‘bodily injury’ as bodily harm, sickness or disease, including death, that results. It defines insureds as:

1. You or any ‘family member.’
2. Any other person ‘occupying’ ‘your covered auto.’
3. Any person for damages that person is entitled to recover because of ‘bodily injury’ to which this coverage applies sustained by a person described in 1. or 2. above.
‘Family member’ means a person related to you by blood, marriage or adoption who is a resident of your household. This includes a ward or foster child.

[¶ 10.] Because Gloe’s parents were not residents of Gloe’s household and were not occupants of a covered auto, they were not insureds under this policy language. Furthermore, the insured, Scott Gloe, suffered no bodily injury or death in the accident. Therefore, no UIM coverage was available under the policy. Gloe, however, contends that this policy provision violates the public policy of the UIM and uninsured (UM) statutes of this State.

[¶ 11.] “Since statutes must be construed according to their intent, the intent must be determined from the statute as a whole, as well as enactments relating to the same subject.” Martin-maas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611. Furthermore, because of the similarity of subject and purpose of UM and UIM statutes and coverage, most of the decisions considering this issue construe UM and UIM claims, policies, and statutory language interchangeably. This is understandable because, as was noted in Jones, 51 P.3d at 1045, construing UM and UIM statutes separately “would create the anomalous situation where benefits for the wrongful death of an uninsured person were not required if the motorist causing death was uninsured, but required if the motorist was underinsured.” Therefore, we construe our UM and UIM statutes together. We also apply the case law considering UM and UIM coverage interchangeably.

[¶ 12.] Although the essence of the South Dakota statutes is quite similar, the UM provision is the most specific in declaring who is intended to be protected by the mandated coverage. It provides that coverage is required for the protection of persons insured under the policy. It also suggests that coverage was intended for the bodily injury or death of the insured:

No policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle may be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state ... unless coverage is provided therein or supplemental thereto in limits for bodily injury or death equal to the coverage provided by such policy for bodily injury and death, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom. However, the coverage required by this section may not exceed the limits of one hundred thousand dollars because of bodily injury to or death of one person in any one accident and, subject to the limit for one person, three hundred thousand dollars because of bodily injury to or death of two or more persons in any one accident, unless additional coverage is requested by the insured. ...

SDCL 58-11-9 (emphasis added).

[¶ 18.] The complementary UIM statutes fail to as specifically address the question of who is intended to be protected by the mandated coverage and whether bodily injury or death of an insured was contemplated. Instead, they simply refer to coverage for “bodily injury to or death of [a] person” and “damages as its insured may recover on account of bodily injury or death arising out of an automobile accident....”

No motor vehicle liability policy of insurance may be issued or delivered in this state with respect to any motor vehicle registered or principally garaged in this state ... unless underinsured motorist coverage is provided therein at a face amount equal to the bodily injury limits of the policy. However, the coverage required by this section may not exceed the limits of one hundred thousand dollars because of bodily injury to or death of one person in any one accident and, subject to the limit for one person, three hundred thousand dollars because of bodily injury to or death of two or more persons in any one accident, unless additional coverage is requested by the insured. ...

SDCL 58-11-9.4.

Subject to the terms and conditions of such underinsured motorist coverage, the insurance company agrees to pay its own insured for uncompensated damages as its insured may recover on account of bodily injury or death arising out of an automobile accident because the judgment recovered against the owner of the other vehicle exceeds the policy limits thereon. Coverage shall be limited to the underinsured motorist coverage limits on the vehicle of the party recovering less the amount paid by the liability insurer of the party recovered against.

SDCL 58-11-9.5.

[¶ 14.] Gloe disregards the language in SDCL 58-11-9 that indicates coverage is intended for the protection of the insured for bodily injury or death. Instead, he focuses only upon references generally referring to legal entitlement to recover or coverage for “uncompensated damages as its insured may recover” as a result of “bodily injury or death.” SDCL 58-11-9 and SDCL 58-11-9.5 (emphasis added). Because Gloe is legally entitled to recover wrongful death damages as a result of the death of his parents, he asserts that these general references are broad enough to mandate coverage for the uncompensated pecuniary loss that he may suffer as a result of his parents’ death in an automobile accident that had no relationship to his policy. Given his general right of recovery for the wrongful death of his parents, Gloe argues that the UIM statutes should “not concern [themselves] with an insured’s bodily injury,” and therefore, Iowa Mutual may not limit UIM coverage to wrongful death or bodily injury sustained by an insured.

[¶ 15.] Iowa Mutual responds by pointing out that SDCL 58-11-9.5 specifically provides that UIM coverage is subject to an insurer’s terms and conditions. Iowa Mutual further points out that this Court has recognized the “right of insurance companies to place conditions on underin-sured motorist coverage.” See Cimarron Ins. Co. v. Croyle, 479 N.W.2d 881, 886 (S.D.1992) (superseded on other grounds by SDCL 32-35-70) (permitting an insurer to place a condition on coverage excluding an insured’s vehicle from UIM coverage). Iowa Mutual concludes that its policy provision limiting coverage to death or bodily injury of an insured is valid as a “term” or “condition” of its policy.

[¶ 16.] However, the “subject to the terms and conditions” language of SDCL 58-11-9.5 was not intended to permit any restriction an insurer may wish to create. It was only intended to allow limitations on coverage to the extent that they do not violate the public policy expressed in the statutes. We have specifically stated that “the conditions and limitations imposed by the insurance company must be consistent with public policy....” Phen v. Progressive Northern Ins. Co., 2003 SD 133, ¶ 6, 672 N.W.2d 52, 54. On the other hand, “[p]olicy language ... is not automatically void as against public policy simply because it narrows the circumstances under which coverage applies.” London v. Farmers Ins. Co. Inc., 63 P.3d 552, 555 (Okla.Civ.App.2002) (considering a similar UM dispute). See also, Farmers Insurance Exchange v. Chacon, 939 P.2d 517, 520 (Colo.Ct.App.1997) (considering a limitation on UM coverage and stating that “a policy term is not void as against public policy simply because it narrows the circumstances under which coverage applies”). This Court has concluded that some restrictions violate public policy and some do not. Therefore, the “subject to” language does not automatically resolve ■this matter, and we must return to the ultimate question whether the Iowa Mutual language is prohibited by the public policy of this state.

[¶ 17.] The public policy of this state is set forth in its statutes and cases. American Family Mut. Ins. Co. v. Merrill, 454 N.W.2d 555, 559 (S.D.1990) (citations omitted). Most significant to this appeal, our cases have noted that the purpose of UM/UIM coverage is to protect the insured party toho is injured in an automobile accident by the negligence of an uninsured/underinsured motorist:

The purpose of uninsured [and therefore underinsured] motorist statutes is to provide the same insurance protection to the insured party who is injured by an Uninsured [or Underinsured] or unknown motorist that would have been available to him had he been injured as a result of the negligence of a motorist covered by the minimum amount of liability insurance.

Clark v. Regent Ins. Co., 270 N.W.2d 26, 29 (S.D.1978) (emphasis added); Nickerson v. American States Ins., 2000 SD 121, ¶ 15, 616 N.W.2d 468, 472 n. 4. Thus, when the purpose expressed in Clark (protecting the insured party who is injured by another motorist) is considered with the purpose expressed in SDCL 58-11-9 (protecting persons insured for bodily injury or death), we believe that the Legislature intended to mandate coverage for the protection of the insured for the insured’s bodily injuries or death caused by the negligence of an uninsured/underinsured motorist.

[¶ 18.] We do not, however, believe that UM/UIM coverage was mandated for the consequential losses a wrongful death beneficiary incurs simply because that beneficiary has an auto policy and the decedent happens to be a relative for which the beneficiary is legally entitled to maintain a wrongful death action. As the court in Livingston v. Omaha Property & Cas. Ins. Co., stated:

[T]o accept plaintiffs interpretation would permit plaintiff to recover under her uninsured motorist policy for the death of any person from whom she is legally entitled to bring a claim under the wrongful death statute, such as the death of her children, any lineal descendant, her brothers and sisters, her parents, or any other descendant. It would provide coverage by plaintiffs insurance company for hazards associated with the operation of the vehicles of all of these individuals, none of whom are insured under her policy.

927 S.W.2d 444, 446 (Mo.Ct.App.1996) (citing Elder v. Metropolitan Prop, and Cas. Co., 851 S.W.2d 557, 562 (Mo.Ct.App.1993)).

[¶ 19.] Thus, most courts have concluded that coverage is not mandated where the cause of action is for wrongful death of a person “who was in no way connected to [the insured’s] automobile insurance policy, who did not reside in [the insured’s] household, nor who, if had survived the accident, would have had any right of recovery under [the insured’s] policy.” Temple v. Travelers Indemnity Co., 2000 WL 33113814 *5 (Del.Super.Ct.2000) (unpublished opinion) aff'd., 782 A.2d 267, (Del.Supr.2001). See also Jones, 51 P.3d at 1045 (stating that allowing recovery of UIM benefits for the death of an individual who was not insured under the insured’s auto policy, did not reside in the insured’s household, and would have had no right of recovery under the insurance policy if he had survived, would be contrary to common sense); Lafleur v. Fidelity Cas. Co. of New York, 385 So.2d 1241, 1245 (La.Ct.App.1980) (holding the legislature did not intend UM statute to require UM policy to cover wrongful death of third persons); Spurlock v. Prudential Ins. Co., 448 So.2d 218, 219 (La.Ct.App.1984) (holding the Legislature never intended “to afford coverage for what an insured may be legally entitled to recover as his ‘wrongful death’ damages, sustained because of some third party’s death”); Allstate Ins. Co. v. Hammonds, 72 Wash.App. 664, 865 P.2d 560, 568 (1994) (holding, under language that did not explicitly require injuries by the insured, that one must “engage in a strained and forced interpretation of the ... policy to conclude that it provides compensation for an insured household member for injuries to non-resident, uninsured relatives”). Finally, and probably most pertinent to this appeal, is the Georgia decision construing broad language that, like the South Dakota UIM statute, generally referred to coverage for “all sums which said insured shall legally be entitled to recover as damages.” The Georgia court concluded that such broad language was “not ... enacted ... with the intention of requiring insurance companies to pay damages for the death of a person not insured under the policy in question.” Atlanta Cas. Co. v. Gordon, 266 Ga.App. 666, 598 S.E.2d 70, 71 (2004).

[¶ 20.] Gloe, however, argues that we should not follow this clear weight of authority because it would write the word “death” out of the UM/UIM statutes. To support this argument, Gloe points out that our statutes specifically allow recovery for wrongful death as well as bodily injury, but an insured decedent cannot recover for his own death under South Dakota law. See SDCL 21-5-5 (wrongful death action is for the exclusive benefit of the wife or husband and children, or if there be none of them, then the parents and next of kin of the decedent). Because an insured decedent cannot recover for his or her own wrongful death, Gloe contends Iowa Mutual’s endorsement effectively writes out the right of recovery for “death,” even though that word is repeatedly used in the statutes.

[¶ 21.] However, Gloe fails to recognize that the Legislature included the word “death” to cover other wrongful death claims. Although the majority rule does not contemplate coverage for the wrongful death of third parties, wrongful death claims are covered if the person killed is an insured. Thus, the word “death” has meaning in the statute because, while Gloe may not recover under his policy for the death of non-insured relatives, UIM coverage is provided for the wrongful death of Gloe’s family household members who suffer death at the hands of an underinsured motorist because they are insureds. Likewise, Gloe’s family household members have UM/UIM coverage for his wrongful death at the hands of an uninsured or underinsured motorist. And finally, any other person who has a right to recover because of an insured’s death has coverage. They are afforded UIM coverage because paragraph three of the endorsement at issue specifically makes them insureds. That endorsement provides that insureds include “[a]ny person for damages that person is entitled to recover because of ‘bodily injury [or death]’ to which this coverage applies sustained by [an insured].” See supra ¶ 9. For these reasons, the word “death” is not written out of the statute. Rather, the term has significant effect because the named insured, his family household members, and any other person who has a right to recover for wrongful death are all afforded UIM coverage for the wrongful death of an insured.

[¶ 22.] Other states recognize this UIM death benefit. Thus, the word “death” has meaning because “coverage is intended to provide indemnity for damages resulting from an insured’s wrongful death payable” to those persons entitled to bring a wrongful death action. Livingston, 927 S.W.2d at 446 (emphasis added). See also Farmers Ins. Exchange, 939 P.2d at 521. Stated another way, the word death has meaning because when it comes to wrongful death claims “the legislature contemplated that the survivors of a person killed in an accident with an uninsured motorist would pursue a claim under the decedent’s uninsured motorist coverage, rather than the survivor’s policy.” Livingston, 927 S.W.2d at 446.

[¶ 23.] Gloe’s argument is also fundamentally flawed because, as Florida has noted, he incorrectly focuses solely upon the fact that he was an insured under his UIM policy, when the correct focus should be whether the person who suffered bodily injury or death had UM (or UIM) coverage. Valiant Ins. Co. v. Webster, 567 So.2d 408, 410 (Fla.1990) (disapproved on other grounds). However, when the question correctly focuses on whether the party injured in an automobile accident had UM/ UIM coverage, the weight of authority concludes that the “statute does not require coverage for anyone who may be entitled to recover consequential damages as a survivor under the wrongful death statute when the decedent himself had neither liability nor uninsured motorist coverage under the policy.” Id. at 411.

[¶ 24.] Gloe also notes that Iowa, Maryland, Nebraska, and Ohio have all concluded that coverage is afforded. The Iowa Supreme Court determined that because their UM statute did not require bodily injury to the insured, a wife could recover for her non-insured husband. Hinners v. Pekin Ins. Co., 431 N.W.2d 345 (Iowa 1988). That court reached the same result in a case involving UIM coverage in Wetherbee v. Economy Fire & Cas. Co., 508 N.W.2d 657 (Iowa 1993). Maryland concluded that it would be contrary to the broad purpose of their uninsured motorist law to restrict coverage to cases involving damages arising from death sustained by an insured. Forbes v. Harleysville Mut. Ins. Co., 322 Md. 689, 589 A.2d 944 (1991). Nebraska similarly held that an insured may recover wrongful death damages arising from the death of a non-insured person. State Farm Mut. Auto. Ins. Co. v. Selders, 187 Neb. 342, 190 N.W.2d 789 (1971). Finally, Ohio held that it was contrary to their law to restrict coverage to bodily injury sustained by an insured. Sexton v. State Farm Mut. Auto. Ins. Co., 69 Ohio St.2d 431, 433 N.E.2d 555 (1982).

[¶ 25.] However, in reaction to this minority interpretation, all but one of these state’s respective legislatures corrected each court’s interpretation and clarified that such coverage was not intended. In Ohio, the legislature amended their UIM statute to specifically overrule Sexton so that policies may limit coverage to bodily injury suffered by an insured. Atlanta Cas. Co., 598 S.E.2d at 72 (citing Beagle v. Walden, 78 Ohio St.3d 59, 676 N.E.2d 506 (1997)). Similarly, Forbes is no longer the law in Maryland. That legislature corrected the court’s interpretation and clarified its statute to only “apply to, and require UIM coverage for, a wrongful death claim where the deceased is an ‘insured.’ ” Id. (citing Nicholson v. Nationwide Mut. Ins. Co., 2001 WL 985099 (Del.Super.Ct.2001)). Finally, as with the other states, the Nebraska legislature amended its UM statutes to disallow recovery in these cases. London, 63 P.3d at 556 n. 1.

[¶ 26.] Thus, the vast majority of courts that have considered this issue have “uniformly interpreted their respective statutes as providing coverage only for injuries to those insured under the policy.” Atlanta Cas. Co., 598 S.E.2d at 72. Atlanta Cas. Co. notes that the states that have upheld the insurance provision at issue here include: Alaska, Arizona, California, Colorado, Delaware, Florida, Illinois, Indiana, Louisiana, Mississippi, Missouri, Oklahoma, Rhode Island, Washington, and Wisconsin. Id. at 72-73. And most significantly, this majority interpretation has been adopted whether or not the UM/UIM statute construed specifically referred to coverage for bodily injury or death of the insured. The majority of these cases interpreted statutes that, like ours, simply referred to coverage for one “legally entitled to recover” based on bodily injury or death.

[¶ 27.] Because we reiterate that the purpose of these statutes is to protect the insured party who is injured in an accident, we agree with the reasoning of the clear majority of courts that have found no mandated UM or UIM coverage for the wrongful death of one not insured under the claimant’s policy. We also do so because “[w]hile uninsured [and underin-sured] motorist coverage is to be given a liberal interpretation, coverage should not be created where there is none.” Livingston, 927 S.W.2d at 446 (citing Elder, 851 S.W.2d at 562). Therefore, mandating UIM coverage for Gloe would result in an extension of coverage “for a decedent who is not an insured under the claimant’s policy.London, 63 P.3d at 556. See also Farmers Ins. Exchange, 939 P.2d 517.

[¶ 28.] We finally note that mandating coverage for wrongful death in this case would require insurance coverage for Gloe’s parents’ deaths even though neither Gloe nor his parents would have had any coverage had his parents survived with serious uncompensated injuries. There would be no coverage because Larry and Verna Mae were not insureds and Scott Gloe has no right of recovery for his parents’ personal injuries. Consequently, Gloe’s construction of the statutes would create the anomalous result that UIM coverage would be available if the victim of the accident died, but unavailable if the victim survived and sustained substantial uncompensated damages. The legislature could not have intended that result.

[¶ 29.] Because Gloe’s parents were not insureds and did not have UIM coverage under this policy, there could have been no recovery had they been injured, instead of being lolled. Furthermore, although Gloe was an insured, he did not suffer any bodily injury and he had no involvement in the accident. Yet, after settling the wrongful death action for the death of his parents, he sought to recover further pecuniary loss under his automobile policy only because the decedents happen to be relatives covered by a wrongful death statute. We do not believe the South Dakota statutes were intended to mandate UIM coverage for such consequential losses. Instead, we agree that such statutes do “not require coverage for anyone who may be entitled to recover consequential damages as a survivor under the wrongful death statute when the decedent himself had neither liability nor uninsured [or underinsured] motorist coverage under the policy.” Valiant, 567 So.2d at 411.

[¶ 30.] In light of the disposition of this issue, we need not reach the other issues raised in Iowa Mutual’s notice of review.

[¶ 31.] Affirmed.

[¶ 32.] GILBERTSON, Chief Justice, and KONENKAMP, Justice, concur.

[¶ 33.] SABERS and MEIERHENRY, Justices, dissent,

MEIERHENRY, Justice

(dissenting).

[¶ 34.] I respectfully dissent. Based upon the plain meaning of the statutory language, Gloe should be allowed to recover from his own underinsured coverage for the wrongful death of his parents. The majority concludes that the law was intended to protect only the insured person’s injury or death. This, the majority concludes is public policy. I cannot agree. Public policy is what the legislature says it is. What the legislature said is that an insured may claim under his own policy if he is legally entitled to recover for a death caused by an underinsured tortfeasor.

[¶ 35.] The majority reaches a contrary conclusion, in part, by emphasizing one portion of the statutory language in SDCL 58-11-9 and deemphasizing the statutory language as a whole. The majority concludes that only an “insured’s” bodily injury or death is protected by the underin-surance coverage because the statutory language which expressly requires uninsured coverage for bodily injury and death is “for the protection of persons insured thereunder.” Yet a closer analysis of the precise language of the statute further defines “persons insured thereunder.” It includes in the definition “persons insured thereunder who are legally entitled to recover ... because of bodily injury, sickness or disease, including death, resulting therefrom.” Id. (emphasis added). The plain meaning of the language cannot be overlooked.

[¶ 36.] We have consistently restrained our interpretation of a law to the plain meaning of the words and have declined to expand its meaning to what we think it should have said or what we think the legislature may have meant. We should also restrain ourselves in this case. If the legislature does not want underinsured coverage for wrongful death beneficiaries, it can amend the language of the statutes clearly to say so, as has been done in some other states. We recently reiterated how we determine legislative intent:

The intent of a statute is determined from what the legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used.
Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court’s only function is to declare the meaning of the statute as clearly expressed. Moreover, [i]n arriving at the intention of the Legislature, it is presumed that the words of the statute have been used to convey their ordinary, popular meaning. SDCL 2-14-1 requires that words in a statute are to be understood in their ordinary sense. We finally note that a [j]udieial interpretation of a statute that fail[][s] to acknowledge its plain language would amount to judicial supervision of the legislature.

In re West River Electric Ass’n. Inc., 2004 SD 11, ¶ 21, 675 N.W.2d 222, 228 (citations and quotations omitted).

[¶37.] The plain language of SDCL 58-11-9 requires coverage to insureds “who are legally entitled to recover damages.” SDCL 58-11-9. The plain language in the underinsured motorist coverage statutes likewise contemplates an insured’s coverage on a wrongful death claim. SDCL 58-11-9.5 provides:

Subject to the terms and conditions of such underinsured motorist coverage, the insurance company agrees to pay its own insured for uncompensated damages as its insured may recover on account of bodily injury or death arising out of an automobile accident because the judgment recovered against the owner of the other vehicle exceeds the policy limits thereon.

(Emphasis added). As Gloe points out, in South Dakota decedents or estates of decedents cannot legally recover for their own deaths. SDCL 21-5-5. With this in mind, it is conceivable that the legislature intended to provide coverage protection for an insured who is “legally entitled to recover damages ... because of ... death,” and underinsurance coverage for “death of’ a person, and for “recover[yj on account of ... death.” SDCL 58-11-9, -9.4, -9.5. This is particularly true since this is the plain meaning of the language the legislature used.

[¶ 38.] Another principle of statutory construction is to give effect to each word, phrase or sentence of a statute.

A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant, ... No clause sentence or word shall be construed as superfluous, void or insignificant if the construction can be found which will give force to and preserve all the words of the statute. While every word of a statute must be presumed to have been used for a purpose, it is also the case that every word excluded from a statute must be presumed to have been excluded for a purpose.

2A NoRman J. SingeR, SUTHERLAND StatutoRY Construction § 46.06, 181-92 (6th Ed 2000) (emphasis added). We have to presume that the legislature used the words it did for a purpose and left out words for a purpose. The legislature wanted protection for those who suffered uncompensated damages due to underinsured and uninsured motorists’ negligence. Those suffering damages as outlined by the statute are those who are legally entitled to recover damages for bodily injury and death. The only one who can legally recover damages for death is one entitled to recover under South Dakota’s wrongful death statutes. Had the legislature intended to limit recovery to an insured’s own injury or to a household member’s injury or death, it could have easily done so. For example, the legislature could have written the statute to say:

“Subject to the terms and conditions of such underinsured motorist coverage, the insurance company agrees to pay its own insured for uncompensated damages as its insured may recover on account of bodily injury or death [of an insured] arising out of an automobile accident because the judgment recovered against the owner of the other vehicle exceeds the policy limits thereon.”

See SDCL 58-11-9.5. The legislature also could have clearly limited the coverage expressed in SDCL 58-11-9 by changing or inserting different language. Instead of using language allowing recovery of damages because of “death,” without qualifieation, it could have used a more limiting phrase such as “death [of an insured].” Id. The bottom line is that the legislature did not limit coverage. There is nothing ambiguous about the language and no need to look to other jurisdictions. The legislature set up the statutory recovery for wrongful death; it also required coverage when a death results from the negligence of underinsured and uninsured motorists. It is logical to conclude that the intent of the law was to protect those who are harmed when death results, i.e. wrongful death beneficiaries. The legislature should be the entity to change the language of the law if this was not the intent, not this Court.

[¶ 39.] I would reverse the lower court and allow Gloe’s claim to proceed.

[¶ 40.] SABERS, Justice, joins this dissent.

      .SDCL 21-5-1 provides:
      Whenever the death or injury of a person, including an unborn child, shall be caused by a wrongful act, neglect, or default, and the act, neglect, or default is such as would have entitled the party injured to maintain an action and recover damages in respect thereto, if death had not ensued, then and in every such case, the corporation which, or the person who, would have been liable, if death had not ensued, or the personal representative of the estate of such person as such personal representative, shall be liable, to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony; and when the action is against such personal representative, the damages recovered shall be a valid claim against the estate of such deceased person. However, an action under this section involving an unborn child shall be for the exclusive benefit of the mother or the lawfully married parents of the unborn child.

      . SDCL 21-5-5 provides:
      Every action for wrongful death shall be for the exclusive benefit of the wife or husband and children, or if there be neither of them, then of the parents and next of kin of the person whose death shall be so caused; and it shall be brought in the name of the personal representative of the deceased person.

      . In rendering our decision in Nelson v. Farmers Mutual Insurance Co. of Nebraska, 2004 SD 86, 684 N.W.2d 74, the amount of UIM coverage available under Nelson's policy was $100,000. The portion of the $125,000 liability insurance proceeds she received was set off against that amount.

      . Michael Gloe also asserted a UIM claim under his parent's auto policy. The set-off calculation was in dispute. We resolved that matter in Gloe v. Union Insurance Company, 2005 SD 30, 694 N.W.2d 252.

      . Karen Nelson also asserted a UIM claim under her auto policy. In Nelson, 2004 SD 86, ¶ 3, 684 N.W.2d at 75-76, Karen’s UIM coverage was conceded. Therefore, we only decided the extent of Farmers Mutual's UIM limits.

      . Iowa Mutual argues that Gloe is not "legally entitled to recover” because, under SDCL 21-5-5, an action for wrongful death must be brought by the personal representative. In the recent case of In re Estate of Edna Jane Howe, 2004 SD 118, ¶¶ 25-26, 689 N.W.2d 22, 29, this Court clarified that only the personal representative may bring a wrongful death action, and it must be brought on behalf of all beneficiaries. However, both Howe and the case that Howe interpreted (Sander v. Geib, Elston, Frost Professional Ass’n, 506 N.W.2d 107 (S.D.1993)) involved wrongful death actions against tortfeasors. In the present case, Iowa Mutual is not being sued as a tortfeasor. It is being sued on contract for benefits allegedly due under a policy of insurance it issued to Gloe. Because this is a declaratory action to determine the extent of Gloe's contractual rights under an insurance contract, Howe is inapposite.

      . Even though the UM and UIM statutes were passed nine years apart, we do not believe the slight difference in language of the statutes suggests that the Legislature had different purposes and goals in enacting each provision. Therefore, we do not believe that the use of more general language in the UIM statutes evinces an intent to require UIM coverage in policies where no UM coverage is required.

      . Our other cases discussing public policy violations include: DeSmet Ins. Co. of South Dakota v. Gibson, 1996 SD 102, ¶ 6, 552 N.W.2d 98-99, 100 (holding that a resident family member’s exclusion was consistent with public policy); Isaac v. State Farm Mut. Auto. Ins. Co., 522 N.W.2d 752, 757 (S.D.1994) (holding that a policy provision purporting to reduce underinsured motorist coverage by workers' compensation benefits was void as a matter of public policy); Kremer v. American Family Mut. Ins. Co., 501 N.W.2d 765, 768 (S.D.1993) (noting that it is against public policy to preclude a court determination of fault and damage in a suit against an uninsured motorist).

      . See: Delancey v. State Farm Mut. Auto. Ins. Co., 918 F.2d 491, 494 (5thCir.1990) (interpreting Mississippi UM statute that provided coverage to "the insured [for] all sums which he shall be legally entitled to recover as damages for bodily injury or death ..."); Bartning v. State Farm Fire & Cas., 164 Ariz. 370, 793 P.2d 127, 128-129 (Ct.App.1990) (construing UM statute providing coverage "for the protection of persons insured who are legally entitled to recover damages ... because of bodily injury ... including death, resulting therefrom ..."); Bakken v. State Farm Mut. Auto. Ins. Co., 139 Ariz. 296, 678 P.2d 481, 485 (Ct.App.1983) (construing UM statute that provided coverage "for the protection of persons insured [thereunder] who are legally entitled to recover damages ... because of bodily injury ... including death, resulting therefrom.”); Smith v. Royal Ins. Co. of America, 186 Cal.App.3d 239, 230 Cal.Rptr. 495, 496 (1986) (interpreting UM statute that provided coverage "insuring the insured ... for all sums ... [one is] legally entitled to recover as damages for bodily injury or wrongful death ... ”); Farmers Ins. Exchange v. Chacon, 939 P.2d 517, 520 (Colo.Ct.App.1997) (interpreting UM statute providing coverage "for the protection of persons insured thereunder who are legally entitled to recover damages ... because of bodily injury ... including death, resulting therefrom ...”); Temple v. Travelers Indemnity Co., 2000 WL 33113814, *4 (Del.Super.Ct. 2000) (unpublished opinion) (interpreting UM/UIM statute that provided coverage "for the protection of persons insured thereunder who are legally entitled to recover damages ... for bodily injury ... including death ..."); Valiant Ins. Co. v. Webster, 567 So.2d 408, 409-410 (Fla.1990) (disapproved on other grounds) (interpreting UM statute providing coverage "for the protection of persons insured thereunder who are legally entitled to recover damages ... because of bodily injury ... including death, resulting therefrom”); State Farm Mut. Auto. Ins. Co. v. George, 326 Ill.App.3d 1065, 261 Ill.Dec. 236, 762 N.E.2d 1163, 1165 (2002) (construing UM statute providing coverage "for the protection of persons insured who are legally entitled to recover damages ... because of bodily injury ... including death, resulting therefrom”); Ivey v. Massachusetts Bay Ins. Co., 569 N.E.2d 692, 694 (Ind.Ct.App.1991) (construing UM statute that provided coverage "for the protection of the insured who is legally entitled to recover damages ... because of bodily injury resulting therefrom”); Spurlock v. Prudential Ins. Co., 448 So.2d 218, 219 (La.Ct.App.1984) (stating that the UM policy claim must be based upon bodily injury to an insured and that because the parties had stipulated that the decedent was not an insured under the policy's terms, it affirmed the grant of summary judgment denying coverage); Lafleur v. Fidelity & Cas. Co. of New York, 385 So.2d 1241, 1244 (La.Ct.App.1980) (construing UM statute that provided coverage "for the protection of persons insured thereunder, who are legally entitled to recover damages ... because of bodily injury ... including death, resulting therefrom ...”); Gillespie v. Southern Farm Bureau Cas. Ins. Co., 343 So.2d 467, 469-470 (Miss.1977) (interpreting UM statute that provided coverage to the insured for "all sums which he shall be legally entitled to recover as damages for bodily injury or death ..."); Livingston v. Omaha Property & Cas. Ins. Co., 927 S.W.2d 444, 445 (Mo.Ct.App.1996) (construing UM statute that provided coverage "for the protection of persons insured thereunder who are legally entitled to recover damages ... because of bodily injury ... including death, resulting therefrom”); London v. Farmers Ins. Co., 63 P.3d 552, 554 (Okla.Civ.App. 2002) (interpreting UM statute providing coverage "for the protection of persons insured thereunder who are legally entitled to recover damages ... because of bodily injury ... including death resulting therefrom ..."); Terilli v. Nationwide Mut. Ins. Co., 641 A.2d 1321, 1322 (R.I.1994) (interpreting an insurance policy providing UM coverage that provided compensation for damages "because of bodily injury to an insured” and denying coverage because the injured person was not an insured under the policy); Allstate Ins. Co. v. Hammonds, 72 Wash.App. 664, 865 P.2d 560, 563 (1994) (construing UIM statute providing coverage "for the protection of persons insured thereunder who are legally entitled to recover damages ... because of bodily injury, death ... resulting therefrom ..."); Ledman v. State Farm Mut. Auto. Ins. Co., 230 Wis.2d 56, 601 N.W.2d 312, 316 (Ct.App.1999) (interpreting a UM policy and concluding that "the only reasonable reading is that for a vehicle to be uninsured, it must have caused bodily injury to an insured.”).

      . The dissent interprets this language ("legally entitled to recover for a death caused by an underinsured tortfeasor”) to include a public policy mandating UIM coverage for the wrongful death of third parties. Infra ¶¶ 34, 35, and 37 (emphasis added). The dissent asserts that this is "plain language” contemplating "an insured's recovery on a wrongful death claim,” even though the death involves a noninsured third party who has no connection whatsoever with the automobile policy claimed against. Infra ¶ 37. The defect in the dissent’s reasoning is that neither this clause nor any other clause in any of the relevant statutes explicitly says that UIM coverage is mandated for wrongful death benefits arising from the death of noninsured third parties who have no relationship with the automobile policy. Consequently, while the language may be "conceivably” broad enough to fashion an argument in favor of coverage, it is certainly not “plain language” that explicitly mandates UIM coverage for the death of every conceivable heir at law for which an insured is .entitled to assert a wrongful death claim. If it were so "plainly” mandated, there would not have been this multitude of decisions interpreting the same or similar clauses.
      The dissent finds it unnecessary to even consider this myriad of decisions from all other states interpreting the same or similar clauses. The dissent does so by again reading the clause "legally entitled to recover damages for ... death” to "unambiguously” mandate wrongful death coverage for third parties who have no connection with the policy. See infra ¶ 38. However,' the dissent fails to acknowledge that many of these other courts considered analogous, if not identical, language. The dissent has certainly not demonstrated that the South Dakota statutes are sufficiently unique that all other cases on the subject are irrelevant. See supra ¶¶ 18, 19, 26 and n. 9.