BEFORE ROY NOBLE LEE, C.J., PRATHER & SULLIVAN, JJ.
SULLIVAN, JUSTICE, FOR THE COURT:
Federated Guaranty Mutual Insurance Company (" Federated Guaranty ") filed a complaint on February 4,
1986, pursuant to Miss. R. Civ. P. 57, seeking a declaration of rights under a contract of insurance with Jan Cossitt. The parties later filed motions - Jan Cossitt for Partial Summary Judgment on January 2, 1987, accompanied by a Motion to Compel Discovery, and Federated Guaranty for Summary Judgment on March 4, 1987.
On March 20, 1987, the respective Motions for Summary Judgment were heard in the Hinds County Circuit Court, First Judicial District, and an order was issued on March 23, 1987, denying summary judgment as to Jan Cossitt and granting summary judgment as to Federated Guaranty.
Jan Cossitt has appealed the denial of her motion and the corresponding grant of Federated Guaranty's motion, and has raised the following issues:
1. There is no credit or setoff due appellee as to the uninsured motorist coverage, since the appellant has received nothing from the tortfeasor;
2. Tortfeasor's vehicle was uninsured according to case law which has interpreted the uninsured motorist statute;
3. Appellant was entitled to medical benefits under the policy of insurance;
4. An issue of fact has arisen as to bad faith of the appellee and punitive damages for consideration by the jury; and
5. The court erred in ignoring the appellant's motion to compel discovery.
This case is based on unfortunate but undisputed facts. On April 10, 1984, Jan Cossitt, Odom McDaniel and Joseph Q. White were struck by a vehicle owned and operated by Lester Davis. Mr. McDaniel was killed, and both Mr. White and Jan Cossitt sustained serious injury. At the time of the accident, Mr. Davis had in effect a policy of insurance with a limit of bodily injury liability in the amount of $10,000.00 per individual, and $20,000.00 per accident.
The estate of Mr. McDaniel and Mr. White filed suit against Mr. Davis in Hinds County Circuit Court. However, Jan Cossitt did not file suit. The suits brought by Mr. McDaniel's estate and Mr. White were subsequently settled, with Mr. Davis' liability insurance carrier paying
$10,000.00 to each party. These payments totally exhausted the available liability coverage under Mr. Davis' policy of insurance, and as a consequence, Jan Cossitt has received nothing from Mr. Davis' carrier.
Because there are no proceeds left under Davis' liability policy with which to pay Jan Cossitt, she claims that Davis is an uninsured motorist as to her so that Federated Guaranty has become obligated to her under her own policy of insurance which provides for uninsured motorist protection. The uninsured motorist portion of her policy provides for bodily injury coverage in the amount of $10,000.00 per person, and $20,000.00 per accident. Federated Guaranty contends that Davis is an insured motorist because he had limits of bodily injury liability (10/20) in an amount equal to Cossitt's uninsured motorist coverage (10/20), relying on the statutory definition of uninsured motorist in Mississippi Code Annotated, 83-11-103 (Supp. 1988). It is this dispute that prompted Federated Guaranty to seek a declaratory judgment.
By way of counterclaim, Cossitt sought payment of medical expenses under her policy. In addition, she sought punitive damages because of Federated Guaranty's alleged bad faith in refusing to pay the uninsured motorist coverage, and in failing to pay the total amount of medical expenses incurred. Federated Guaranty continues to assert that an arguable and legitimate dispute existed over the amount due Cossitt under her policy of insurance, and consequently, there could be no bad faith on its part.
In her Motion for Partial Summary Judgment, Cossitt sought summary judgment on all issues except the issue of bad faith, which she sought to have submitted to a jury. Federated Guaranty sought summary judgment on the issue of bad faith, as well as on the issue of whether Davis was an insured or uninsured motorist at the time of the accident.
The lower court denied Cossitt's Motion for Partial Summary Judgment. It granted the motion of Federated Guaranty, and found that Federated Guaranty was entitled to judgment as a matter of law that its actions in handling Cossitt's claim for both medical and uninsured motorist coverage evidenced no acts of bad faith. Furthermore, Federated Guaranty was entitled to judgment as a matter of law that Lester Davis (" tortfeasor ") was not an uninsured motorist within the meaning of Mississippi Code Annotated, 83-11-103 (Supp. 1988), and
therefore, Cossitt was not entitled to recover under the uninsured motorist portion of her policy.
This appeal is from the denial and corresponding grant of Motions for Summary Judgment. This Court proceeds de novo, reviewing the evidentiary matter before it in the light most favorable to the non-movant. If this view reveals that the moving party is entitled to judgment as a matter of law because there is no genuine issue of material fact, then summary judgment should be entered in favor of the movant; otherwise, the motion should be denied. Short v. Columbus Rubber & Gasket Co., Inc., 535 So. 2d 61, 63-4 (Miss. 1988); Smith v. Sanders, 485 So. 2d 1051, 1054 (Miss. 1986); Miss. R. Civ. P. 56.
WAS THE TORTFEASOR'S VEHICLE AN" UNINSURED MOTOR VEHICLE "WITHIN THE MEANING OF MISSISSIPPI CODE ANNOTATED, 83-11-103 (SUPP. 1988)?
At the outset, it is clear that no genuine issue of material fact exists with respect to this issue. The only question is one of law involving an analysis of case law and interpretation of the applicable statute. Our only question is whether the lower court reached the correct conclusion of law.
As previously stated, the tortfeasor had in effect at the time of the accident bodily injury liability coverage in the amount of $10,000.00 per individual and $20,000.00 per accident. Furthermore, Jan Cossitt had in effect uninsured motorist coverage for bodily injury in the amount of $10,000.00 per individual and $20,000.00 per accident. Two persons injured in the accident with Cossitt collected $10,000.00 each from the tortfeasor's insurance carrier, thereby exhausting the applicable bodily injury liability coverage of $20,000.00 per accident, and leaving no proceeds available to pay Cossitt.
The question here is whether the tortfeasor becomes an uninsured motorist, so that Cossitt's uninsured motorist coverage will apply, where multiple claimants under the tortfeasor's liability policy, other than Cossitt, have totally exhausted the available proceeds. This issue would also encompass situations where multiple claimants have reduced the tortfeasor's liability limit so that the injured person (Cossitt, e.g.) would receive less than the minimum amount of their uninsured motorist
Cossitt sustained in excess of $10,000.00 in bodily injury damage. Because of recovery by the prior claimants, she received nothing from the tortfeasor's liability insurance policy. Cossitt argues, therefore, that as to her, the tortfeasor is an uninsured motorist which would entitle her to collect the $10,000.00 provided for under her own policy with Federated Guaranty. *fn1 Cossitt's focus in determining whether the tortfeasor is uninsured is on the amount of proceeds available to the injured person.
Federated Guaranty, on the other hand, contends that the statute mandates a focus on the applicable limits of the respective policies, and not on the proceeds available to each injured person. Under this view, the tortfeasor is neither uninsured nor underinsured where the liability limit in his policy is equal to or greater than the limit provided for in the injured claimant's uninsured motorist coverage. All things being equal in this case (tortfeasor's 10/20 liability limit equals claimant's 10/20 uninsured motorist limit), Davis was not uninsured as to Cossitt.
In order for Cossitt to recover under her policy, the tortfeasor's automobile" must be `an uninsured motor vehicle' as defined in the statute. "Wickline v. U.S. Fidelity & Guaranty Co., 530 So. 2d 708, 712 (Miss. 1988). We begin with the applicable statute, *fn2 Mississippi Code Annotated, 83-11-103 (c) (iii) (Supp. 1988), which provides that an" uninsured motor vehicle "is
an insured motor vehicle, when the liability insurer of such vehicle has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist coverage; (Emphasis added).
Instantly, it can be seen that the focus in determining whether the tortfeasor is uninsured is on the respective" limits "of the policies." Mississippi law defines an [un]insured vehicle in terms of policy limits, as distinguished from proceeds actually received by a particular claimant, "and furthermore," the amount of the claimant's damages is also irrelevant when determining eligibility for uninsured motorists benefits. "Wilson v. Nationwide Mutual Ins. Co., 667 F. Supp. 349, 355 (N. D. Miss. 1987); Herrod v. National Indemnity Co., 643 F.2d
956, 959 (N.D. Miss. 1986); Wickline v. U. S. Fidelity & Guaranty Co., 530 So. 2d 708, 712-13 (Miss. 1988). Once focused, it appears clear under the statutory definition that the tortfeasor in this case is not uninsured as to Cossitt since the limit of liability provided by his insurer is not less than the limit provided by Cossitt's own uninsured motorist coverage. Section 83-11-103 (c) ...