Linn v. North Idaho District Medical Service Bureau, Inc.

BAKES, Chief Justice, concurring specially: I agree with the majority that benefits paid pursuant to the coverage under Part III, Coverage D, for family medical expense would not be “benefits of this contract for sickness or injury resulting from the negligent or wrongful act or omission of another party ...” within the meaning of the Nelson Trust policy. Thus, our earlier case of Medical-Dental Service, Inc. v. Boroo, 92 Idaho 328, 442 P.2d 738 (1968), which analyzed a recovery under an uninsured motorist clause, rather than a medical expense clause, would not be applicable. However, paragraph 7 of the stipulation of facts ante at 880, entered into between the parties is susceptible of being construed to mean that the payment was made pursuant to the uninsured motorist coverage, rather than the medical coverage provision. However, the policy, which by stipulation was admitted into evidence after the trial, indicates that in all probability the medical expenses paid to the Linns were in fact paid under the medical expense clause rather than the 692 uninsured motorist clause of the contract. The trial court found, based upon the stipulated record, that the “Plaintiff received such sums under the uninsured motorist clause because of the negligent, wrongful act or omission of such uninsured motorist,” and thus concluded that the master policy issued to the Nelson Trust required the amounts owing to the Linns under that policy to be reduced “by the amount of funds reasonably recoverable by or on behalf of the subscriber or dependent from or on account of such other party.” Rather than reversing and remanding with directions to enter judgment for the plaintiff, as the majority has done, I would merely reverse and remand to the trial court to resolve the apparent conflict in the stipulated record as to whether or not the medical expenses were paid pursuant to the uninsured motorist clause (Part II, Coverage C), or pursuant to the medical expense clause (Part III, Coverage D). If it is under the latter, then the plaintiffs are entitled to recover under their policy with the Nelson Trust. If it is under the former, then the judgment of the trial court should be affirmed.