In Delgado v. American Family Ins. Group, 2009 WL 3151165 (Nev.), appellant Dionicia Delgado was injured when the automobile in which she was a passenger collided with another automobile, allegedly as a result of the drivers' concurrent negligence.

Delgado made a claim against both the at-fault drivers' insurance policies and recovered the liability limits under those policies. However, alleging that her damages exceeded the limits of both liability policies, she then made a claim against American Family, the permissive driver's UIM policy. American Family denied the claim, arguing that, under Nevada law, an insured who was covered under the liability policy could not also recover under the UIM provision of that same policy, as such recovery amounted to impermissible stacking of the policies.

 

The district court granted summary judgment in favor of American Family, concluding that a passenger involved in a two-car automobile accident who alleged that both drivers were negligent could not recover liability benefits and UIM benefits under the permissive driver's single insurance policy. The court cited Peterson v. Colonial Insurance Co., 100 Nev. 474 (1984), and Baker v. Criterion Insurance, 107 Nev. 25 (1991), as support for the holding.

The Supreme Court of Nevada concluded that a passenger who was injured by two concurrently negligent drivers could recover from both the permissive driver's single insurance policy liability benefits based on the permissive driver's negligence and the UIM benefits based on the other driver's underinsured status. The court clarified that Peterson and Baker were not determinative on this issue, as the antistacking rule set forth in those cases was not implicated when a passenger was not asserting that the vehicle she was riding in was underinsured, rather her claim was based on the concurrent negligence of the third-party tortfeasor, and the underinsured status of the third-party tortfeasor's vehicle.

The court explained that allowing Delgado to recover both liability and UIM benefits under the permissive driver's single policy of insurance was consistent with the purpose of uninsured and underinsured motorist coverage, as the passenger was being compensated for damages caused by the joint negligence of a third-party underinsured driver.

Thus, the court concluded that if the permissive driver and the third-party tortfeasor were adjudged jointly negligent, Delgado could recover under the permissive driver's UIM policy for the tortfeasor's negligence and the tortfeasor's vehicle's underinsured status. Under the permissive driver's policy, Delgada was a lawful occupant of her vehicle; therefore, the policy extended UIM coverage to her at the time of the accident. Although the permissive driver's vehicle could not qualify as an underinsured vehicle under the terms of the policy, the tortfeasor's vehicle could. And, if Delgado could prove that she was legally entitled to recover damages from the tortfeasor, she could recover the amount of excess damages under the permissive driver's UIM policy with American Family. Therefore, the court concluded that American Family was not entitled to judgment as a matter of law and reversed the district court's grant of summary judgment.