For instance, in Mostow v. State Farm Insurance Companies (1995), 628 N.Y.S.2d 146, 216 A.D. 2d 300, a New York appellate court found State Farm's UIM provisions, which attempted to limit UIM coverage to $100,000.00 per person and $300,000.00 per accident, ambiguous and, therefore, construed it against State Farm so as to entitle an insured to access $190,000.00 in coverage for her injuries despite the $100,000.00 per person limit. Practitioner should note that Mostow involved personal injury claims-and no death claims. The Mostow case was the subject of a July 1, 1996 article in Lawyers Weekly USA. Significantly, the article cited unspecified experts for the proposition that "it could be malpractice not to make this argument in an appropriate case." Also, the article noted that, in the Mostow case, the New York State Insurance Association submitted an amicus brief, arguing against construing the policy as ambiguous and stating that insurance premiums in New York could rise as much as 35% if the Mostow decision was not reversed.

Andrews v. Nationwide Mutual Insurance Company (N.H. 1983), 124 N.H. 148, 467 A. 2d 254 is in accord. In that case, multiple insureds were injured by an uninsured motorist. The Court applied per occurrence limits of $300,000.00, not per person limits of $100,000.00, to the injured insured's claim because the policy did not make the per occurrence limit subject to per person limit. The Court noted that a reasonable insured could conclude that "if $300,000.00 is the limit when two person sustained damages, then this appears to indicate that one person may be able to recover more than $100,000.00 in a case where two or more persons are injured in the same accident." Andrews, 467 A.2d at 258. See, also, Farm Bureau Mutual Insurance Company v. Winters (1991), 248 Kan, 295 and Nichols v. State Farm Fire & Casualty Company (Ariz. App. 1993), 175 354 (The Court found the subject language to be ambiguous, but applied the per person limit because Arizona law does not require ambiguities to be construed against the insurer).

In Honey v. State Farm Insurance Company (Wash. App. 1988), a Washington appellate court examined a situation in which a husband and wife, who were injured by an underinsured motorist, brought an action against their insurer, State Farm, seeking to recover $300,000.00 pursuant to the "per accident" portion of their policy. The Court of Appeals ruled that the insureds were entitled to recover up to the $300,000, "per accident" provision, rather than the $100,000 "per person provision. The "limit of liability" language in the policy specified that the insurer's limit of liability shown on the declaration page under "each person" was the amount of coverage for all damages due to bodily injury to one person. The policy stated that the $300,000.00 shown under "each accident" was the total amount of coverage for all damages "due to bodily injury to two or more persons in the same accident." The Washington Court of Appeals ruled that this liability limits provision contained an inherent contradiction - namely, "the per person limit is $100,000.00, but the per accident limits if $300,000.00 for damages to 'two or more person"'. The Court reasoned that "there is no language making the per accident limit subject to the per person limit." Therefore, the Court concluded that the two clauses could not be reconciled because "the per accident limit directly implies that two people injured in one accident may recover up to $300,000.00 while the per person limits says each person in limited to $100,000.00."

Subsequent Washington state cases have retreated from or read Haney narrowly. Specifically, in Mutual of Enumclaw Insurance Company V. Grimstad-Hardy (Wash. App.1993), 71 Wash.App.226, 857P.1064, a motorist who was injured in a collision with an uninsured driver sued to recover UM benefits from his insurer. The policy provided UM coverage in the amount of $100,000.00 per person/$200,000.00 per accident. The claimant claimed she was entitled to more than the $100,000.00 per person limit on the basis of an asserted ambiguity in the relationship between the "limit of liability" Clause and the declarations page. The limit of liability clause stated that it would limit liability for "any one accident" to the amount shown on the declarations page without specifically mentioning that the "per person" limit applied to an accident involving only one insured. She claimed that interpreting the Clause to limit liability to the "per person" limit is inherently contradictory to the "one accident" clause, which applies regardless of the number of insured. The Court of Appeals disagreed:

*** This argument seems to assume that "number of insureds" equals "number of injured insureds." *** The limits in the coverage page unambiguously state that the limits for each person is $100,000.00; the limit for each accident is $200,000.00. An average person could not reasonably construe this language to mean that injury to one person has $200,000.00 limit; such a reading would render the $100,000.00 per person limitations totally superfluous. Id, 1073.

The Grimstad-Hardy appellate court state that the "subject to" language was not necessary when the policy amounts were internally consistent. In accord. Behmer v. Viking Insurance Company of Wisconsin (Wash. App. 1992), 65 Wash. App. 301, 827 P 2d 1113. See, also, Livingston v. Farmers Insurance Company of Washington (Wash.App. 1995), 79 Wash. App. 72, 900 P. 2d 575 (UIM liability limits for each person and each accident were not ambiguous unless there was inherent contradiction between the per person limit and the limit for multiple persons in each accident and that contradiction is not resolved by language which expressly makes the each accident limit "subject to" the each person limit. Here, the "each accident" limit in the Farmers policies is greater than the sum of two "each person" limits but that discrepancy is eliminated by the language which provides that the "each accident" limit is "subject to" the "each person" limit. Id., 79 Wash. App. 72, 78).

If failing to assert the potential ambiguity in the per peson/per accident" language may constitute legal malpractice, then those representing claimants should, at a minimum, review the applicable policy language and the applicable law to ascertain whether there is a colorable basis for pressing such an argument. Those representing insurers should also counsel their clients to consider clarifying their insurance policies if the pertinent per person/per accident language is susceptible to an attack on the basis that such language may be ambiguous. In cases in which the insurer's "limit of liability" language is not crystal clear, insurers should consider expressly specifying that the "per occurrence" or "per accident" liability limit is "subject to" the "per person" liability limit.