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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hahn v. GEICO Choice Insurance Company (5/11/2018) sp-7242

Hahn v. GEICO Choice Insurance Company (5/11/2018) sp-7242

          Notice:   This opinion is subject to correction before publication in the P                   ACIFIC  REPORTER   

                                                                                                                      

          Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

                                                                                                                        

           303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

           corrections@akcourts.us.  



                      THE SUPREME COURT OF THE STATE OF ALASKA                                      



CHAD  HAHN,                                                         )  

                                                                    )     Supreme  Court  No.  S-16441  

                                Appellant,                          )  

                                                                                                                                    

                                                                    )     Superior Court No. 3AN-15-11102 CI  

           v.                                                       )  

                                                                                              

                                                                    )     O P I N I O N  

                              

GEICO CHOICE INSURANCE                                              )  

                       

COMPANY, FRANKLIN                                                                                           

                                                                    )     No. 7242 - May 11, 2018  

                                          

TOWNSEND and BLUE CROSS                                             )  

            

BLUE SHIELD,                                                        )  

                                Appellees.                          )  

                                                                    )  



                                                                                                            

                     A             

                        ppeal from the Superior Court of the State of Alaska, Third  

                                                                                              

                     Judicial District, Anchorage, Andrew Guidi, Judge.  



                                                                                                                

                     Appearances:             Yale H.  Metzger,  Law Offices of Yale H.  

                                                                                                               

                     Metzger, Anchorage, for Appellant. Michael J. Hanson, Call  

                                                                                      

                     & Hanson, P.C., and Barry J. Kell, Kell & Associates, P.C.,  

                                                                                                   

                     Anchorage,            for      Appellee          GEICO           Choice        Insurance  

                                                                 

                     Company.  No appearance by Appellee Franklin Townsend  

                                                     

                     or Blue Cross Blue Shield.  



                                                                                                         

                     Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                                          

                     and Carney, Justices.  



                                                    

                     STOWERS, Chief Justice.  



I.         INTRODUCTION  



                                                                                                                              

                     While sitting on his motorcycle at a stop light, Chad Hahn was thrown  



                                                                                                                                    

backwards  when  Franklin  Townsend's  car  failed  to  stop  in  time  and  struck  the  


----------------------- Page 2-----------------------

 motorcycle.   During settlement negotiations in the tort suit that followed, Hahn sought                                                                                                                                                                                                                    



 payment underTownsend'sunderinsuredmotorist(UIM)                                                                                                                                                                   insurancepolicy. Hahn                                                                   argued  



 that he was an insured occupant of Townsend's car because he landed on the car after the                                                                                                                                                                                                                                  



 impact and that Townsend's liability insurance would not cover the full extent of his                                                                                                                                                                                                                                    



 damages,   rendering   Townsend   underinsured.     Townsend's   insurer,   GEICO   Choice  



 Insurance Company (GEICO), sued for a declaratory judgment that no UIM coverage                                                                                                                                                                                                                    



 was available.                                         Hahn answered, raising a number of affirmative defenses including that                                                                                                                                                                                          



 GEICO's declaratory judgment action was not ripe and that the court therefore lacked  



 subject matter jurisdiction.                                                                           Hahn also filed a counterclaim for a declaratory judgment  



 that   UIM   coverage   was  available   to   him,   and   asserted   third-party   claims   against  



 Townsend, seeking to join him as a necessary party and a real party in interest.                                                                                                                                                                                                                                     The  



 superior   court   concluded   that   it   had   subject   matter   jurisdiction,   granted   summary  



judgment and a declaratory judgment in GEICO's favor, and dismissed the third-party                                                                                                                                                                                                          



 claims against Townsend.                                                                           Hahn appeals; we affirm.                                                



 II.                      BACKGROUND  



                          A.                       Facts  



                                                   In April 2015 Franklin Townsend rear-ended Chad Hahn with his car while  

                                                                                                                                                                                                                                                                                                                  



 Hahn was stopped on his motorcycle at a red light.                                                                                                                                                   The impact threw Hahn from his                                                                                       



 motorcycle.  According to Hahn, he landed momentarily on the hood, windshield, and                                                                                                                                                               



 roof of Townsend's vehicle before coming to rest on the street. Hahn and Townsend had                                                                                                                                                                                                                                   



 no relationship prior to the accident.                                                                                                  Hahn's medical bills totaled around $160,000 and                                                                                                                               



 Hahn claimed, through his attorney, that Townsend faced personal liability "in the                                                                                                                                                                                                                                      

 neighborhood of $500,000 to $1,000,000."                                                                                                                          1  



                          1  

                                                   Because Hahn's tort claims were brought in a separate proceeding,                                                                                                                                                                                            Hahn  

 v. Townsend, 3AN-15-09509 CI, we do not make - and our summary of facts should                                                                                        

                                                                                                                                                                                                                                                                                    (continued...)  



                                                                                                                                                               -2-                                                                                                                                                  7242
  


----------------------- Page 3-----------------------

                              Townsend was insured under an Alaska Family Automobile Insurance                                                                            



Policy   issued   by   GEICO.     Townsend's   policy   provides   up   to   $50,000   of   property  



damage   liability   per   person   and   $50,000   for   bodily  injury   liability   per   person.     In  



addition, it includes UIM benefits, extending up to $50,000 of coverage for "damages                                                         



for bodily injury [and property damage], caused by an accident, which the insured is                                                                                                        



legally entitled to recover from the owner or operator of an uninsured motor vehicle, an                                                                                                   



underinsured motor vehicle, or a hit and run motor vehicle arising out of the ownership,                                                                                

                                                                                2   The GEICO policy defines "insured" as follows:  

maintenance or use of that vehicle."                                                                                                                                          



                              (a)	          you;  

                                                                                                                        

                              (b)	          your relatives if residents of your household;  

                                                                                                                                                   

                              (c)	          any other person while occupying an insured auto;  

                                                                                                                                                  

                              (d)	          any person who is entitled to recover damages because  

                                                                                                                                                           

                                            of bodily injury sustained by an insured under (a), (b),  

                                                                                                       

                                            and (c) above. [Emphasis added.]  



                                                                                                                                                                                 

The GEICO policy then defines "occupying" to mean "in, upon, getting into or getting  



                                                                                                                                                                                  

out of."  The UIM coverage is not available "until the limits of liability of all bodily  



                                                                                                                                                                                           

injury and property damage liability bonds and policies that apply have been used up by  



                                                                                   3  

                                                                                       

payments, judgments or settlements." 



                              Hahn sued Townsend for negligence and intentional torts arising out of the  

                                                                                                                                                                                          



accident. GEICO, as Townsend's insurer, offered to pay Hahn "full per person limits of  

                                                                                                                                                                                            



liability bodily injury coverage and the full amount of the liability property damage  

                                                                                                                                                                               



               1  

                 (...continued)  

not  be  construed  as  implying  -  any  conclusions  as  to  Townsend's  potential  tort  liability  

to  Hahn  or  the  extent  thereof.  



               2              See also AS 21.96.020 (requiring that insurers offer UIM coverage).  

                                                                                                                                                                                        



               3              See  also  AS  28.22.201(a)  (setting  limits  on  the  application  of UIM  

                                                                                                                                                                                      

coverage).  



                                                                                             -3-	                                                                                    7242
  


----------------------- Page 4-----------------------

coverage" in exchange for a full release of all claims against Townsend. Hahn's attorney  

                                                                                                                        



communicated to Townsend's attorney that if the UIM limits were offered in addition to  

                                                                                                                                 



the property damage and bodily injury limits, he would advise Hahn to release all claims  

                                                                                                                          



against Townsend.   Townsend's attorney communicated this request to GEICO, and  

                                                                                                                              



under increasing pressure from Hahn's attorney, repeatedly requested that GEICO pay  

                                                                                                                              



UIM limits as Hahn suggested in light of the excess exposure Townsend faced as well  

                                                            



as increasing litigation costs.  GEICO repeatedly reiterated that it was willing to pay  

                                                                                                                              



Hahn  full  bodily  injury  and  property  damage  limits  under  Townsend's  policy  in  

                                                                                                                                



exchange for a full release of all claims against Townsend.  But GEICO refused to pay  

                                                                                                                              



UIM benefits to Hahn, believing a UIM claim was without factual or legal support.  

                                                                                                                                



          B.        Proceedings  



                     GEICO filed suit against Hahn seeking a declaratory judgment that "there  

                                                                                                                           



is no coverage available to Chad Hahn under the UIM coverage of Townsend's GEICO  

                                                                                                                        



policy with respect to the April 18, 2015 accident, and that [GEICO] has no obligation  

                                                                                                                    



to  pay any  damages  Hahn  seeks to  recover  under  that coverage as a result of that  

                                                                                                                              



accident." GEICO argued that Hahn was not "occupying" Townsend's vehicle under the  

                                                                                                                               



policy and therefore was not an insured. Hahn asserted a counterclaim for a declaratory  

                                                                                                                   



judgment that "there is underinsured motorist coverageavailableto Chad Hahn under the  

                                                                                                                                



GEICO  .  .  .  policy  issued  to  Franklin  Townsend"  because  Hahn  was  occupying  

                                                                                                                   



Townsend's vehicle when he landed on it.   Hahn also sought to join Townsend and  

                                                                                                                              



Hahn's medical insurance provider Blue Cross Blue Shield (Blue Cross) as "third-party  

                                                                                                                  



defendants", arguing that they were real parties in interest and necessary parties under  

                                                                                                



Alaska Civil Rules 17 and 19, respectively.  Hahn also asserted as third-party claims  

                                                                                                                          



against Townsend the same negligence and intentional tort claims as those included in  

                                                                                                                                 



Hahn's separate personal injury action.  

                                                  



                                                                -4-                                                        7242
  


----------------------- Page 5-----------------------

                                  GEICO filed a summary judgment motion seeking a ruling that Hahn was                                                                                                        



 not   covered   under   the   UIM   coverage   of   Townsend's   policy   because   he   was   not  



 "occupying" Townsend's vehicle at the time of the collision as defined by the GEICO                                    



policy. GEICO also filed a motion to dismiss Hahn's third-party claims, arguing that the                                                                                                                        



 only interested parties with respect to the insurance coverage question were GEICO and                                                                                                                        



 Hahn.   Townsend filed a motion seeking to dismiss the third-party claims against him,                                                                                                                     



 arguing that he was not a necessary party and that the duplicative claims were meant to                                                                                                                           

                                                                                                                                                                              4    Hahn opposed  

pressure Townsend and GEICO to settle in the personal injury action.                                                                                                               



 GEICO's and Townsend's motions.  

                                                                     



                                  The superior court heard arguments on GEICO's motion for summary  

                                                                                                                                                                                                



judgment, motion to dismiss, and other pending motions.   At the hearing and in a  

                                                                                                                                                                                                                    



 "Suggestion of Lack of Subject Matter Jurisdiction" filed after the hearing Hahn argued  

                                                                                                                                                                                                       



 that GEICO's declaratory judgment action was not ripe because he had not made a  

                                                                                                                                                                                                                    



 formal claim for UIM benefits, and because the bodily injury and property damage  

                                                                                                                                                                                                    



 liability limits had not been "used up," a pre-condition for UIMbenefits under the policy.  

                                                                                                                                                                                                                          



 GEICOfiled a response to Hahn's Suggestion, arguing that because Hahn had demanded  

                                                                                                                                                                                               



 UIM benefits in settlement negotiations there was an actual controversy turning on a  

                                                                                                                                                                                                                     



purely  legal  issue  that  the  court  had  jurisdiction  to  decide  under  the  provision  for  

                                                                                                                                                                                     

 declaratory judgments in AS 22.10.020(g).5  

                                                                          



                 4  

                                  Blue Cross did not object to being joined, but opposed GEICO's summary   

judgment motion and filed its own cross-motion, seeking a ruling that Hahn was entitled to  

 coverage under Townsend's policy.  GEICO opposed the motion.  



                 5  

                                  AS 22.10.020(g) ("In case of an actual controversy . . . , the superior court                                                                                            

 .   .   .   may   declare   the   rights   and   legal   relations   of   an   interested   party  seeking   the  

 declaration, whether or not further relief is or could be sought.").                                                                     



                                                                                                         -5-                                                                                               7242
  


----------------------- Page 6-----------------------

                                                                                                                   

                    The superior court issued a written order concluding (1) it had jurisdiction  



                                                                                                                              

over the coverage dispute and the dispute was ripe for decision; (2) Blue Cross and  



                                                                                                                                 

Townsend could not be joined as "third-party defendants", the procedure for which is  



                                                                                                                               

governed by Alaska Civil Rule 14 because neither party could be liable to Hahn for  



                                                                                                                                

GEICO's claims against him; (3) Blue Cross was properly joined as a real party in  



                                                                                                                              

interest, but Townsend was neither a real party in interest nor a necessary party, and  



                                                                                                                               

Hahn's duplicative claims against Townsend should therefore be dismissed; and (4)  



                                                                                                                        

Hahn was not entitled to UIM coverage under Townsend's GEICO policy and GEICO  



                                                                      

was therefore entitled to summary judgment.  



                                                                                                                            

                    With   respect   to   jurisdiction,   the   superior   court   determined   that  



                                                                                                                          

"Townsend's liability to Hahn will most likely exceed the personal injury policy limits"  



                                                                                                                              

based on various representations and arguments by the parties. The court also noted that  



                                                                                                                          

despite not making a formal claim, Hahn repeatedly rejected GEICO's offer of bodily  



                                                                                                                        

injury and property damage limits but indicated he would drop his tort claims if GEICO  



                                                                                                                              

also offered UIM coverage.  Accordingly, the court reasoned that UIM coverage had  



                                                                                                                       

become  crucial  to  ongoing  settlement  negotiations  in  the  personal  injury  lawsuit,  



                                                                                                                      

withholding  judgment  on  the  availability  of  such  coverage  would  inhibit  ongoing  



                                                                                                                             

settlement negotiations and cause the parties substantial hardship, and the case was  



                            

therefore ripe for decision.  



                                                                                                                      

                    With respect to joinder under Rules 17 and 19, the superior court reasoned  



                                                                                                                   

that "[u]nlike GEICO or Hahn, Townsend's interest [was] in disputing and minimizing  



                                                                                                                          

his personal liability for Hahn's injuries" and that the declaratory judgment action would  



                                                                                                                   

have no effect on this underlying liability.  The court emphasized that the contractual  



                                                                                                                      

relationship at issue in the declaratory judgment action was between Hahn, as a potential  



                                                                                                                                

insured, and GEICO.  The court also noted that allowing the third-party claims to go  



                                                                                                                        

forward might lead to multiple and inconsistent legal obligations for Townsend because  



                                                               -6-                                                         7242
  


----------------------- Page 7-----------------------

they duplicated the claims in the personal injury action. It therefore dismissed the third-                                                                                                                                                                                                                                                                                                                                      



party claims against Townsend because he was neither a real party in interest nor a                                                                                                                                                                                                                                                                                                                                                                   



necessary party.                                                                     Because it concluded that Blue Cross was partially subrogated to any                                                                                                                                                                                                                                                                                 



UIM benefits accruing to Hahn, the court did not dismiss Blue Cross.                                                                                                                                                                                                                                                                 



                                                                     Lastly, with regard to the availability of coverage,                                                                                                                                                                                                             the court construed the                                                                                 



policy's   use   of   the   word   "upon"   together   with  the   word   "occupying."     The   court  



determined that "occupying," along with "getting in" and "getting out of," implied a                                                                                                                                                                                                                                                                                                                                                                   



prior relationship with the insured vehicle, thereby limiting the meaning of "upon" and                                                                                                                                                                                                                                                                                                                                                    



 excluding Hahn from coverage.                                                                                                                                                  Moreover, it concluded that a "reasonable insured                                                                                                                                                                                     



would read all terms of the policy in context" and "not assign undue weight to a single                                                                                                                                                                                                                                                                                                                                  



term."    The court supported its interpretation with out-of-state case law interpreting                                                                                                                                                                                                                                                                                                       



 similar policy provisions to require "some degree of connection between the claimant,                                                                                                                                                                                                                                                                                                                        



the   injury,  and   the   insured   vehicle"   beyond   incidental   contact.     And   it   noted   that  



interpreting "upon" in the manner Hahn advocated would yield absurd results, favoring                                                                                                                                                                                                                                                                                                                             



those who happened to land on a car rather than the ground.                                                                                                                                                                                                                  



                                                                     The court entered judgment in favor of GEICO and against Hahn and Blue                                                                                                                                                                                                                                                                                           



 Cross.   Hahn appeals.                                                                                            Blue Cross does not.                                                                      



III.                               STANDARD OF REVIEW                                                                             



                                                                     Alaska's declaratory judgment statute provides in relevant part that "[i]n                                                                                                                                                                                                                                                                                      



case of an actual controversy . . . the superior court, upon the filing of an appropriate                                                                                                                                                                                                                                                                                                         



pleading, may declare the rights and legal relations of an interested party seeking the                                                                                                                                                                                                                                                                                                                                                      

                                                                   6   Thus, where an actual controversy exists, we review the superior court's  

declaration."                                                                                                                                                                                                                                                                                                                                                                                                             



                                   6  

                                                                                       

                                                                     AS 22.10.020(g).  



                                                                                                                                                                                                                         -7-                                                                                                                                                                                                         7242  


----------------------- Page 8-----------------------

                                                                                                                                                7  

prudential decision to issue a declaratory judgment for abuse of discretion.                                                                       However,  



because "[w]hether the superior court had subject matter jurisdiction . . . is a question of                                                                       



           8                                                                                                                          9  

                                                                                                                            

law,"  we review the superior court's ripeness determination de novo. 



                                                                                                                                                                   

                          "The question of whether to permit or require joinder of a real party in  



                                                                                                                       10  

                                                                                                                                                     

interest 'rests in the sound discretion of the superior court.' "                                                           "We review decisions  



                                                                                                11  

                                                                                   

granting or denying motions to dismiss de novo." 



                                                                                                                                                       

                          "We review rulings on motions for summary judgment de novo, 'reading  



                                                                                                                                                   

the record in the light most favorable to the non-moving party and making all reasonable  



             7  

                          See State v. ACLU of Alaska                            , 204 P.3d 364, 368 (Alaska 2009).                     



             8  

                          Hydaburg Coop. Ass'n v. Hydaburg Fisheries                                              , 925 P.2d 246, 248 (Alaska           

 1996)   (second   alteration   in   original)   (quoting  Andrews   v.   Alaska   Operating  

                                                                                                                                                 

Eng'rs-Emp'rs Training Tr. Fund                                    , 871 P.2d 1142, 1144 (Alaska 1994)).                                      



             9            ACLU of Alaska , 204 P.3d at 368 ("The statute's reference to an 'actual  

                                                                                                                                                          

controversy' encompasses considerations of standing,mootness, andripeness. . . . [T]his  

                                                                                                                                                            

court is the ultimate arbiter of such issues and we review de novo a superior court's  

                                                                                                                                                         

ripenessdetermination."(footnotes omitted)); seealso Jacko v. State, PebbleLtd. P'ship,  

                                                                                                                                                          

353 P.3d 337, 340 (Alaska 2015).  

                                                      



                          We note that we recently stated in Metcalfe v. State that "[w]e review a  

                                                                                                                                                                     

superior court's decision regarding a controversy's ripeness for abuse of discretion."  

                                                                                                                                                                         

382 P.3d 1168, 1177 n.47 (Alaska 2016).  This statement incorrectly followed prior  

                                                                                                                                                             

opinions that were abrogated by State v. ACLU of Alaska; like the parties in ACLU of  

                                                                                                                                                                   

Alaska , the Metcalfe opinion "conflate[d] the two requirements for declaratory judgment  

                                                                                                                                                     

- standing and the prudential basis for granting declaratory relief - and the different  

                                                                                                                                                      

standards of review that attach to each requirement."  See ACLU of Alaska, 204 P.3d at  

                                                                                                                                                                    

367-68.  We reiterate that ACLU of Alaska is the correct statement of law.  

                                                                                                                                       



             10           Bethel Family Clinic v. Bethel Wellness Assocs., 160 P.3d 142, 144 (Alaska  

                                                                                                                                                        

2007) (quoting Fairbanks N. Star Borough v. Kandik Constr., Inc. & Assocs., 795 P.2d  

                                                                                                                                                              

793, 802 (Alaska 1990)).  

                                                   



             11           Varilek v. City of Houston, 104 P.3d 849, 851 (Alaska 2004).  

                                                                                                                                    



                                                                                 -8-                                                                         7242
  


----------------------- Page 9-----------------------

                                             12  

inferences in its favor.' "                       "Whether the evidence presented a genuine issue of material                                     

fact is a question of law that we independently review."                                                13                                                     

                                                                                                            "Contract interpretation is a  



                                                                                                                                                             

question of law subject to de novo review.   When applying the de novo standard of  



                                                                                                                                                           

review, we apply our 'independent judgment to questions of law, adopting the rule of law  



                                                                                                               14  

                                                                                                             

most persuasive in light of precedent, reason, and policy.' " 



IV.         DISCUSSION  



                         Hahn argues on appeal that the superior court (1) erred in concluding it had  

                                                                                                                                                          



subject  matter  jurisdiction  to  resolve  this  dispute  under  the  declaratory  judgment  

                                                                                                                                              



provision  because  Hahn  had  not  made  a  formal  claim  to  UIM  coverage  and  the  

                                                                                                                                                          



preconditions  under  the  policy  for  UIM  coverage  were  not  yet  met;  (2)  erred  in  

                                                                                                                                                            



dismissing the third-party claims against Townsend because Townsend was a real party  

                                                                                                                                                        



in interest who stood to have his personal liability reduced if the court ruled that UIM  

                                                                                                                                                        



coverage was available to Hahn; (3) erred in concluding Hahn was not "occupying"  

                                                                                                                                         



Townsend's vehicle within the meaning of the policy because the court's contractual  

                                                                                                                                            



interpretation conflicted with what a reasonable insured would expect, was contrary to  

                                                                                                                                                             



out-of-state case law, and violated public policy; and (4) erred in concluding that no  

                                                                                                                                                            



genuine issue of material fact existed and that GEICO was entitled to judgment as a  

                                                                                                                                                               



matter of law.  Hahn does not appeal the court's determination that Townsend could not  

                                                                                                                                                           



properly be joined under Civil Rules 14 or 19.  

                                                                                 



             12  

                         ConocoPhillips Alaska, Inc. v. Williams Alaska Petroleum, Inc.                                                       , 322 P.3d     

 114, 122 (Alaska 2014) (quoting                                  Witt v. State, Dep't of Corr.                         , 75 P.3d 1030, 1033           

(Alaska 2003)).                



             13          Id. (quoting Kalenka v. Jadon, Inc., 305 P.3d 346, 349 (Alaska 2013)).  

                                                                                                                                                              



             14          Id.  (footnotes omitted) (quoting Russell ex rel. J.N. v. Virg-In, 258 P.3d  

                                                                                                                                                

795, 802 (Alaska 2011)).  

                                                  



                                                                              -9-                                                                      7242
  


----------------------- Page 10-----------------------

                          A.	                       TheDeclaratory                                                     Judgment ActionWasRipe,                                                                                           TheSuperiorCourt                                                                 Had  

                                                    Subject Matter Jurisdiction To Decide It, And The Court Did Not                                                                                                                                                                                                         

                                                    Abuse Its Discretion In Issuing A Declaratory Judgment.                                                                                                                                      



                                                    Hahn argues that the superior court had no subject matter jurisdiction over                                                                                                                                                                                            



 this case because (1) Hahn never formally made a claim for UIM benefits,                                                                                                                                                                                                                                         so  any  



 declaratory judgment that GEICO is not obligated to pay UIM benefits to him under                                                                                                                                                                                                                                   



 Townsend's policy is an impermissible advisory opinion; (2) Hahn never intended to                                                                                                                                                                                                                                                 



 make a UIM claim under                                                                                  Townsend's policy and                                                                            was instead                                      more   likely   to   have  



 obtained an excess judgment against Townsend and let Townsend seek recovery from   



 GEICO for any excess judgment Hahn might have obtained against him; (3) Hahn had                                                                                                                                                                                                                                             



 not exhausted the bodily injury and property damage liability limits in Townsend's                                                                                                                                                                                                        



 policy as is required to trigger UIM coverage; and (4) any real dispute is between                                                                                                                                                                                                                        



 Townsend and GEICO because - Hahn claims - GEICO likely filed the declaratory                                                                                                                                                                                                    



judgment action to avoid a bad faith claim brought by Townsend for its failure to tender                                                                                                                                                                                                                            

 UIM benefits to Hahn during settlement negotiations.                                                                                                                                                          15  



                                                    Alaska Statute 22.10.020(g) grants the superior court the power to issue  

                                                                                                                                                                                                                                                                                   



 declaratory judgments in cases of "actual controversy."  This statute provides that "[i]n  

                                                                                                                                                                                                                                                                                                                          



 case of an actual controversy . . . the superior court . . . may declare the rights and legal  

                                                                                                                                                                                                                                                                                                                         



 relations of an interested party seeking the declaration, whether or not further relief is or  

                                                                                                                                                                                                                                                                                                                                    



                           15  

                                                    Under  Bohna v. Hughes, Thorsness, Gantz, Powell & Brundin                                                                                                                                                                                   , "where an                       

 adverse verdict in excess of policy limits is likely, an insurance company has the duty                                                                                                            

 . . . 'to tender in settlement that portion of the projected money judgment which [it]                                                                                                                                                                                                                                        

 contractually agreed to pay.' "  828 P.2d 745, 768 (Alaska 1992) (second alteration in  

                                                                                                                                                                                                                                                                                                                            

 original) (quoting Schultz v. Travelers Indem. Co., 754 P.2d 265 (Alaska 1988) (per  

                                                                                                                                                                                                                                                                                                                                    

 curiam)), superseded by statute on other grounds as recognized in Petrolane Inc. v.  

                                                                                                                                                               

 Robles, 154 P.3d 1014, 1019-20 (Alaska 2007).  



                                                                                                                                                               -10-	                                                                                                                                                      7242
  


----------------------- Page 11-----------------------

                                  16  

could be sought."                      The "actual controversy" language "reflects a general limitation on                                                        



the power of courts to entertain cases . . . [and] encompasses a number of more specific                                                                



reasons  for   not   deciding   cases,   including   lack   of   standing,   mootness,   and   lack   of  



                   17  

ripeness."               



                          "A   ripe   suit   for   declaratory   judgment   will   present   'a   substantial  

                                                                                                                                                



controversy, between parties having adverse legal interests, of sufficient immediacy and  

                                                                                                                                                                

reality.' "18   "[T]here is 'no set formula'  for determining whether a case is ripe for  

                                                                                                                                                                 



adjudication.  Instead, '[w]e examine the fitness of the issues for judicial decision and  

                                                                                 



the hardship to the parties of withholding court consideration' in an effort to 'balance[]  

                                                                                                                                                   

the need for decision against the risks of decision.' "19  

                                                                                                    



                          Thesuperior courtlikened Townsend'sUIMcoverageto"excesscoverage"  

                                                                                                                                                    



- to be paid out after primary coverage has been exhausted - and determined that  

                                                                                                                                                               



while we have not yet decided the issue when an action for excess coverage becomes ripe  

                                                                                                                                                                



for adjudication, most jurisdictions deem a declaratory judgment appropriate when "it  

                                                                                                                                                      



is reasonably likely that a potential claim for excess coverage will mature."  The court  

                                                                                                                                                   



then determined, based on the parties' representations and arguments, that "Townsend's  

                                                                                                                                             



liability to Hahn will most likely exceed the personal injury policy," making available  

                                                                                                                     



any applicable excess coverage.  

                                            



             16  

                          AS 22.10.020(g).                    



             17  

                          Jacko  v.  State,   Pebble   Ltd.   P'ship,   353   P.3d   337,   340  (Alaska 2015)  

                                                                                                                                                              

(alterations in original) (quoting Brause v. State, Dep't of Health & Soc. Servs., 21 P.3d  

357, 358 (Alaska 2001)).           



             18           Id. at 340 (quoting Brause, 21 P.3d at 359).  

                                                                                                                



             19           Id. (second and third alteration in original; footnotes omitted) (first quoting  

                                                                                                                                                         

Brause, 21 P.3d at 359; then quoting State v. ACLU of Alaska, 204 P.3d 364, 369  

                                                                                                                                                               

(Alaska 2009)).  

                 



                                                                               -11-                                                                          7242
  


----------------------- Page 12-----------------------

                                                                      The   court  also   noted   that   despite   not   making   a   formal   claim,   Hahn  



repeatedly rejected GEICO's offer of bodily injury and property damage limits but                                                                                                                                                                                                                                                                                                                                                              



indicated he would drop his tort claims if GEICO also offered UIM coverage. The court                                                                                                                                                                                                                                                                                                                                                   



observed that Townsend repeatedly asked GEICO to offer Hahn UIMcoverage to secure                                                                                                                                                                                                                                                                                                                                                



 a release of all claims to protect him from a "very large verdict." Accordingly, the court                                                                                                                                                                                                                                                                                                                                             



reasoned that UIM coverage had become crucial to ongoing settlement negotiations in                                                                                                                                                                                                                                                                                                                                                                    



the personal injury action and that withholding judgment on the availability of such                                                                                                                                                                                                                                                                                                                                                     



coverage would inhibit ongoing settlement negotiations and cause the parties substantial                                                                                                                                                                                                                                                                                                                   



hardship.   Because of the importance of UIM benefits to the stalled negotiations and                                                                                                                                                                                                                                                                                                                                                         



because Townsend's liability to Hahn would likely exceed the limits of Townsend's                                                                                                                                                                                                                                                                                                                



liability policy, the court determined that the case was ripe for decision.                                                                                                                                                                                                                                                           



                                                                      We   find   no   error   in   the   superior   court's   conclusion.     We   have   not  



previously directly answered the question of when a declaratory judgment action in the                                                                                                                                                                                                                                                                                                                                                            

                                                                                                                                                                                                                         20   but cases from other jurisdictions hold that  

insurance coverage context becomes ripe,                                                                                                                                                                                                                                                                                                                                                                                                       



 a declaratory judgment regarding liability for excess insurance coverage is appropriate  

                                                                                                                                                                                                                                                                                                                                                                                                      



                                   20  

                                                                      In  Grace v. Insurance Company of North America                                                                                                                                                                                                                        we held that an excess                                                             

insurer has no duty to evaluate a claim or make its policy limits available for use in                                                                                                                                                                                                                                                                                                                                                                

 settlement where the claim is less than the limits of the underlying primary policy.                                                                                                                                                                                                                                                                                                                                                      944  

P.2d 460, 465-66 (Alaska 1997).                                                                                                                                                 We did not, however, address issues of ripeness or                                                                                                                                                                                                                    

 subject matter jurisdiction.                                              



                                                                                                                                                                                                                       -12-                                                                                                                                                                                                               7242
  


----------------------- Page 13-----------------------

                                                                                                                                                                                                                                                                                                                                 21  

 as soon as it becomes reasonably likely that a claim for excess coverage will mature.                                                                                                                                                                                                                                                    



                                                                                                                                                                                                                                                                                                     

 The facts here tend to demonstrate that a UIM claim was reasonably likely to mature.  



                                                                                                                                                                                                                                                                                                                           

                                                   First, while Hahn may be correct that he had not made a formal claim for  



                                                                                                                                                                                                                                                                                        

 UIM benefits, that assertion only goes so far. Hahn made clear through his negotiations  



                                                                                                                                                                                                                                                                                                             

 with Townsend that if GEICO offered UIM limits he would drop his tort suit.  While  



                                                                                                                                                                                                                                                                                                                      

 Hahn characterizes this behavior as an "invitation to offer," we are not here dealing with  



                                                                                                                                                                                                                                                                                               

 a question of contract formation.  The practical effect of making a settlement contingent  



                                                                                                                                                                                                                                                                                                               

 on GEICO proffering UIM benefits was to make a demand for UIM benefits.  After  



                                                                                                                                                                                                                                                                                                                    

 GEICO filed for declaratory judgment against Hahn, Hahn continued to insist on UIM  



                                                                                                                                                                                                                                                                                                                  

 benefits in exchange for a release of claims against Townsend; and, significantly, Hahn  



                                                                                                                                                                                                                                                                                                  

 counterclaimed against GEICO for an order declaring that UIM coverage was available.  



                          21  

                                                   See, e.g.                       ,  Tocci Bldg. Corp. of N.J. v. Va. Sur. Co.                                                                                                                   , 750 F. Supp. 2d 316,                                             

 321 (D. Mass. 2010) ("Actions for declaratory judgment in the insurance context nearly                                                                                                                                                                                                                        

 always depend upon several contingencies - whether the insured will be found liable,                                                                                                                                                                                                                          

 the extent of coverage, the size of any potential damage award or settlement, etc. As                                                                                                                                                                                                                                     

 such,   'litigation   over   insurance   coverage   has   become   the   paradigm   for   asserting  

jurisdiction despite future contingencies that will determine whether a controversy ever                                                                                                                                                                                                                              

 actually becomes real.' ");  Liberty Mut. Ins. Co. v. Lone Star Indus., Inc.                                                                                                                                                                                                        , 967 A.2d 1,   

 31 (Conn. 2009) ("Numerous courts have concluded that, for a declaratory judgment                                                                                                                                                                                                                

 coverage action involving an excess policy to be ripe, it must be practically or reasonably                                                                                                                                                                                                  

 likely that the insured's potential liability will reach into the excess coverage; absolute                                                                                                                                                                                                          

 proof that the policies will be triggered is not required");                                                                                                                                                            XI Specialty Ins. Co. v. WMI   

Liquidating Tr., 93 A.3d 1208, 1218 (Del. 2014) ("In this specific insurance coverage   

 context, the plaintiff must establish a 'reasonable likelihood' that coverage under the                                                                                                                                                                                                                                  

 disputed policies will be triggered.");                                                                                                         see also E.R. Squibb & Sons, Inc. v. Lloyd's &                                                                                                                               

 Cos., 241 F.3d 154, 177-78 (2d Cir. 2001);                                                                                                                              Raytheon Co. v. Cont'l Cas. Co.                                                                                                , 123 F.              

 Supp. 2d 22, 30-31 (D. Mass. 2000);                                                                                                       DiCocco v. Nat'l Gen. Ins. Co.                                                                                     , 140 P.3d 314, 316                                       

 (Colo. App. 2006);                                                     UMC/Stamford, Inc. v. Allianz Underwriters Ins. Co.                                                                                                                                                   , 647 A.2d 182,                         

  189-90 (N.J. Super. Law Div. 1994);                                                                                                       Long Island Lighting Co. v. Allianz Underwriters                                                                                       

Ins. Co.                       , 826 N.Y.S.2d 55, 56 (N.Y. App. Div. 2006).                                                                                                                                   



                                                                                                                                                            -13-                                                                                                                                                    7242
  


----------------------- Page 14-----------------------

                                                   Second, as GEICO argues, Hahn's assertions that he never intended to                                                                                                                                                                                                     



make a future claim for UIM benefits are likewise unconvincing.                                                                                                                                                                                    Hahn raised the issue                                         



of UIM coverage in negotiations, filed a counterclaim seeking a determination that UIM                                                                                                                                                                                                                            



coverage would be available to him, contested summary judgment motions on the issue,                                                                                                                                                                                                                           



and filed this appeal.                                                             And while Hahn argues that he was just as likely to obtain an                                                                                                                                                                          



excess judgment from Townsend and let Townsend seek recovery from GEICO, this,                                                                                                                                                                                                                                      



too, is unconvincing.                                                            At oral argument to the superior court Hahn's attorney conceded                                                                                                                                                 



that to "chas[e] the person with no ability to pay" was a bad idea and that it was better                                                                                                                                                                                                                      

to seek UIM benefits during settlement negotiations.                                                                                                                                                  22  



                                                  Third, the fact that Hahn had not exhausted the bodily injury and property  

                                                                                                                                                                                                                                                                                                    



damage liability limits did not make a declaratory judgment inappropriate.   As the  

                                                                                                                                                                                                                                                                                                                       



superior court noted, there was little doubt that Townsend was exposed to potential  

                                                                                                                                                                                                                                                                                                  



liability in excess of the policy limits, making the question whether UIM coverage was  

                                                                                                                                                                                                                                                                                                                     



available critical to the underlying dispute.  Moreover, the only reason that the policy  

                                                                                                                                                                                                                                                                                                            



limits  had  not  been  used  up  was  because  Hahn  had  rejected  them  in  settlement  

                                                                                                                                                                                                                                                                                           



negotiations, by insisting that his release of tort claims against Townsend be dependent  

                                                                                                                                                                                                                                                                                             



on UIM benefits.  Given that Hahn had made UIM benefits central to the settlement  

                                                                                                                                                                                                                                                                                             



negotiations  and  had  represented  that  Townsend's  personal  liability  was  well  over  

                                                                                                                                                                                                                                                                                                                 



GEICO's policy limits, we conclude that a UIM claim was reasonably likely to mature.  

                                                                                                                                                                                                                                                                                                                                        



Therefore, thefact that Hahnhad not yet technically exhausted Townsend's bodily injury  

                                                                                                                                                                                                                                                                                                              



                         22  

                                                  We also note here that - as discussed below in more detail - any UIM                                                                                                                                                                                            

coverage for which Hahn might be eligible technically would not be excess liability                                                                                                                                                                                                                   

insurance,   but   would   be   Hahn's   personal   insurance   benefits   as   an   insured   under  

Townsend's policy, and would not reduce Townsend's exposure to liability.                                                                                                                                                                                                                     Thus, it is      

not clear that Townsend would have standing to seek UIMbenefits on Hahn's behalf any                                                                                                                                                                                                                                   

more than he could have sought benefits for Hahn under Hahn's own Blue Cross policy.                                                                                                                                                                                                                       



                                                                                                                                                           -14-                                                                                                                                                   7242
  


----------------------- Page 15-----------------------

 and property damage limits was not an impediment to hearing the case as a declaratory                                                                                       



judgment action.   



                               This    conclusion    comports    with    our    prior    treatment    of    the    "actual  



 controversy" question in the declaratory judgment context, and with our jurisprudence                                                                                  



 on ripeness generally.                              For example, in                        Alaska Commercial Fishermen's Memorial in                                                              



Juneau v. City & Borough of Juneau                                                       , a nonprofit organization sought a declaratory                                     



judgment on whether the City of Juneau could construct a dock on submerged lands                                                                                                           



before it had a final decision from the State transferring those submerged lands to the                                                                                                         

            23    We noted that "the record [was] devoid of any credible assertion that the City  

 City.                                                                                                                                                                                        



 intended to build on lands it did not own" and concluded that "the superior court did not  

                                                                                                                                                                                                 



 abuse its discretion by refusing to grant a declaratory judgment on a purely hypothetical  

                                                                                                                                                                           

                                                                                              24       Unlike  Alaska  Commercial  Fishermen's  

 (and  seemingly  unlikely)  set  of  facts."                                                                                                                             

                                                                               



Memorial,  where  the  declaratory  judgment  would  have  been  issued  in  a  purely  

                                                                                                                                                                                       



hypothetical context, the question whether UIM coverage is available here is at the heart  

                                                                                                                                                                                            



 of an actual dispute holding up settlement negotiations arising out of an  actual car  

                                                                                                                                                                                                



 accident involving injures well in excess of primary coverage limits.  

                                                                                                                                                                 



                               In Metcalfe v. State  we held that, although the plaintiff challenging the  

                                                                                                                                                                                                



 enforcement of 2005 legislation affecting the Public Employees' Retirement System  

                                                                                                                                                                                      



 (PERS) no longer had a job with PERS benefits, his "declaratory judgment claim was  

                                                                                                                                                                                              



ripe for decision" because "[he] and others in his position need[ed] to know their PERS  

                                                                                                                                                                                          



 status to make decisions about pursuing employment opportunities with the State" and  

                                                                                                                                                                                               



 substantial case law guided the court's adjudication of the plaintiff's constitutional  

                                                                                                                                                                       



                23  

                               357  P.3d   1172,   1174  (Alaska  2015).  



                24  

                               Id.  at   1175-76.    



                                                                                               -15-                                                                                                 7242  


----------------------- Page 16-----------------------

                                                                     25  

challenge to the legislation.                                              Just like the plaintiff in                                  Metcalfe, the parties here needed                                 



to know whether UIM coverage was available to make decisions about how to progress                                                                                                                    



in settlement negotiations and resolve Hahn's tort action, despite the absence of any                                                                                                                             



formal claim to UIM benefits.                          



                                  When determining whether a case is ripe for decision, we also " 'examine                                                                                         



the   fitness  of   the   issues   for   judicial   decision   and   the   hardship   to   the   parties   of  



withholding court consideration' in an effort to 'balance[] the need for decision against                                                                                                                 

                                                             26       In this situation, both the fitness of the issues for judicial  

the risks of decision.' "                                                                                                                                                                               



decision and the hardship to the parties caused by withholding court consideration favor  

                                                                                                                                                                                                              



hearing the case.  The issue here is a legal question of contract interpretation framed by  

                                                                                                                                                                                                                     

largely undisputed facts. Legal questions are more likely to be ripe27   and, as in Metcalfe,  

                                                                                                                                                                                                    

                                                                                                        28     The court need not wait for further factual  

can be guided by "substantial case law."                                                                                                                                                                  

                                                                                          



development in order to decide this issue.  

                                                                                            



                                  And as the superior court noted, the hardship visited on the parties by  

                                                                                                                                                                                                 



refraining from deciding this issue militates in favor of issuing a declaratory judgment.  

                                                                                                                                                                                                                              



Hahn made the availability of UIM coverage central to settlement negotiations arising  



out of the car accident, Townsend asked GEICO to tender UIM benefits, and GEICO  

                                                                                                                                                                                                        



denied there was a factual or legal basis for making this type of benefit available in this  

                                                                                                                                                                                                                   



                 25  

                                  382 P.3d 1168, 1177 (Alaska 2016).                                          



                 26  

                                                                                                                                                           

                                  Jacko  v.  State,  Pebble  Ltd.  P'ship,  353  P.3d  337,  340  (Alaska 2015)  

                                                                                                                                                                                                       

(alteration in original) (quoting State v. ACLU of Alaska, 204 P.3d 364, 369 (Alaska  

2009)).   



                 27              ACLU of Alaska , 204 P.3d at 368.  

                                                                                                             



                 28               Metcalfe, 382 P.3d at 1177.  

                                                                                          



                                                                                                         -16-                                                                                                  7242
  


----------------------- Page 17-----------------------

 context.    Refusing to answer the UIM benefits question would thus cause the parties                                                                                                                                          



 hardship.    



                                      Finally, Hahn suggests that the real reason GEICO asked for declaratory                                                                                                      



judgment was to avoid a potential bad faith claim by Townsend for failing to tender UIM                                                                                                                                               



 benefits   in   settlement   negotiations   pursuant   to   our   decision   in   Bohna   v.   Hughes,  

                                                                                                          29      He suggests that this means the dispute in this  

 Thorsness, Gantz, Powell & Brundin                                                                      .                                                                                                                               



 case is solely between GEICO and Townsend. But as we explain in further detail below,  

                                                                                                                                                                                                                                



 Townsend  would  not  have  any  viable  claims  against  GEICO pertaining  to  Hahn's  

                                                                                                                                                                                                                             



 potential UIM coverage, as any such coverage would be Hahn's own coverage as an  

                                                                                                                                                                                                                                            

 insured under the policy and would have no impact on Townsend's liability.30  

                                                                                                                                                                                                



                                      Because a UIM claim was reasonably likely to mature, the superior court  

                                                                                                                                                                                                                                     



 was faced with an actual controversy that was ripe for adjudication, and the court had  

                                                                                                                                                                                                                                         



 subject matter jurisdiction to decide the declaratory judgment action on its merits.  "We  

                                                                                                                                                                                                                                      



 have  explained  that  declaratory  judgments  are  rendered  to  clarify  and  settle  legal  

                                                                                                                                                                                                                                    



 relations,  and  to  'terminate  and  afford  relief  from  the  uncertainty,  insecurity,  and  

                                                                                                                                                                                                                                       



                   29  

                                      828 P.2d 745, 768 (Alaska 1992) ( "[W]here an adverse verdict in excess                                                                                                                    

 of policy limits is likely, an insurance company has the duty to determine 'the amount                                                                                     

 of a money judgment which might be rendered against its insured,' and 'to tender in                                                                                                                                                         

 settlement that portion of the projected money judgment which [it] contractually agreed                                                                                                                                        

 to pay.' " (quoting                                   Schultz v. Travelers Indem. Co.                                                            , 754 P.2d 265 (Alaska 1988) (per                                                    

 curiam))),  superseded by statute on other grounds as recognized in Petrolane Inc. v.                                                                                                                                                        

Robles, 154 P.3d 1014, 1019-20 (Alaska 2007).                                                                                             



                   30                 As the policyholder, Townsend could theoretically have brought a breach  

                                                                                                                                                                                                                               

 of contract claim against GEICO, but for the reasons stated, he would have no damages.  

                                                                                                                                                                                                                         



                                                                                                                    -17-                                                                                                             7242
  


----------------------- Page 18-----------------------

 controversy giving rise to the proceeding.' "                                                                  31  The superior court accomplished these                                                   



 goals by issuing its declaratory judgment, and did not abuse its discretion in doing so.                                                                                                                       



                 B.	              The Superior Court Did Not Err In Granting Summary Judgment To                                                                                                                  

                                  GEICO Because Hahn Did Not Occupy Townsend's Vehicle At The                                                                                                                 

                                  Time Of The Accident And Thus Was Not Insured Under The Policy.                                                                                                      



                                  Under Alaska Civil Rule 56, the court may grant summary judgment to a                                                                                                               



party where "there is no genuine issue as to any material fact" and "the moving party is                                                                                                                             



                                                                                                           32  

 entitled to judgment as a matter of law."                                                                                                                                                                  

                                                                                                                   Here, taking the facts in the light most  



                                                                                                                                                                                                        

 favorable to Hahn as the non-moving party, and based on its interpretation of the policy,  



                                                                                                                                                                                                               

 the superior court concluded that Hahn was not "occupying" Townsend's vehicle and  



                                                                                                                                                                                                  

 therefore was not an insured under the policy. On that basis, the court granted summary  



                                 

judgment to GEICO.  



                                                                                                                                                                                                                 

                                  Hahn contends that the court erred in its interpretation of the policy.  He  



                                                                                                                                                                                                    

 argues that because the GEICO policy covers any person "occupying" the vehicle;  



                                                                                                                                                                                                                

because the policy's definition of the word "occupying" includes being "upon" the  



                                                                                                                                                                                          

 vehicle; and because "during the course of the collision" Hahn was "upon" Townsend's  



                                                                                                                                         

 car as the term would be "understood in [its] ordinary and popular sense and as a man  

                                                                                                                                                                   33   he was occupying  

                                                                                                                                                                                              

 of average intelligence and experience would  understand  [it]"; 



 Townsend's car and was therefore an insured under the policy.   Furthermore, Hahn  

                                                                                                                                                                                                          



 argues that there was no reason to look beyond the definition of "occupying" that is  

                                                                                                                                                                                                                    



                 31  

                                  Lowell v. Hayes                          , 117 P.3d 745, 755 (Alaska 2005) (quoting                                                                     Jefferson v.   

Asplund , 458 P.2d 995, 997-98 (Alaska 1969)).                                                                            



                 32               Alaska R. Civ. P. 56(c); Christensen v. Alaska Sales &Serv., Inc., 335 P.3d  

                                                                                                                                                                                                              

 514, 517 (Alaska 2014).  

                                             



                 33               Jarvis  v.  Aetna  Cas.  & Sur.  Co.,  633  P.2d  1359,  1363 (Alaska 1981)  

                                                                                                                                                                                                          

 (quoting  Burr v. W. States Life Ins. Co., 296 P. 273, 276 (Cal. 1931)).  

                                                                                                                                                              



                                                                                                       -18-	                                                                                                7242
  


----------------------- Page 19-----------------------

provided by the policy, and that the court's examination of case law interpreting similar                                                                



provisions impermissibly "require[d] [Hahn] to . . . be aware of the interpretations of                                                                           

                                                                                                                               34  He asserts that the  

similar policy language made by other courts in other jurisdictions."                                                                                            



court's approach represented a "painstaking study of the policy provisions" that negated  

                                                                                                                                                       

the reasonable expectations of the insured layperson,35 and that through this erroneous  

                                                                                                                                                   



approach the court impermissibly added to the policy an additional requirement that the  

                                                                                                                                                                



insured have "some type of undefined 'prior relationship' with the [insured] vehicle."  

                                                                                                                                                                      

                          "Contract interpretation is a question of law subject to de novo review."36  

                                                                                                                                                                       



"In addressing the proper interpretation of an insurance policy, we look to '(1) the  

                                                                                                                                                               



language of the disputed provisions in the policy, (2) other provisions in the policy,  

                                                                                                                                                        

(3) extrinsic evidence, and (4) case law interpreting similar provisions.' "37  "Because 'an  

                                                                                                                                                                



insurance policy is a contract of adhesion,' we 'construe grants of coverage broadly and  

                                                                                                                                                               

interpret  exclusions  narrowly.'  "38                                   Under  Alaska  law,  "[i]nsurance  contracts  are  

                                                                                                                                                               



interpreted 'in accordance with the reasonable expectations' of the insured.  This is true  

                                                                                                                                                               



even  if  'painstaking  study  of  the  policy  provisions  would  have  negated  those  

                                                                                                                                                          



             34  

                         Allstate Ins. Co. v. Teel                    , 100 P.3d 2, 6 (Alaska 2004).                               



             35          Id. (quoting Safety Nat'l Cas. Corp. v. Pac. Emp'rs Ins. Co., 927 P.2d 748,  

                                                                                                                                                              

750 (Alaska 1996)).  

                         



             36           ConocoPhillips Alaska, Inc. v. Williams Alaska Petroleum, Inc., 322 P.3d  

                                                                                                                                                             

 114, 122 (Alaska 2014).  

                                                  



             37          State Farm Mut. Auto. Ins. Co. v. Houle, 269 P.3d 654, 657-58 (Alaska  

                                                                                                                                                       

2011) (quoting Teel, 100 P.3d at 4).  

                                                                        



             38          Id. at 658 (footnote omitted) (first quoting C.P. ex rel. M.L. v. Allstate Ins.  

                                                                                                                                                               

Co., 996 P.2d 1216, 1222 (Alaska 2000); then quoting Teel, 100 P.3d at 4).  

                                                                                                                                                   



                                                                               -19-                                                                         7242
  


----------------------- Page 20-----------------------

                              39  

expectations.' "                    Insurance contracts are also construed according to "ordinary and                                                         



                                   40                                                                                                                             41  

customary usage."                                                                                                                                                      

                                        Any ambiguous terms are to be construed in favor of the insured. 



However, "ambiguities only exist when there are two or more reasonable interpretations  

                                                                                                                                           

of particular policy language."42  

                                       



                          It is true that the term "upon" read in isolation could describe Hahn's  

                                                                                                                                                       



position  during  the  crash;  his  body  was  at  least  momentarily  "upon"  the  hood,  

                                                                                                                                                          

windshield, and perhaps roof of Townsend's car.43   But as the superior court recognized,  

                                                                                                                                                



it would be error  to  "consider a single term in isolation."   An interpretation of an  

                                                                                                                                                                 



insurance policy must also account for the language of other policy provisions, relevant  

                                                                                                                                                       



extrinsic evidence, and case law interpreting similar provisions in order to determine  

                                                                                                                                                   



             39  

                          Safety Nat'l Cas. Corp.                     , 927 P.2d at 750 (citations omitted) (first quoting                             

Fulton v. Lloyds & Inst. of London Underwriting Cos.                                                      , 903 P.2d 1062, 1068 (Alaska                

 1995); then quoting                  State v. Underwriters at Lloyds                             , 755 P.2d 396, 400 (Alaska 1988)).                                  



             40          Houle, 269 P.3d at 658 (quoting State Farm Mut. Auto. Ins. Co. v. Dowdy,  

                                                                                                                                                       

 192 P.3d 994, 998 (Alaska 2008)).  

                                                                     



             41          Id.  

                  



             42          Id.  

                                 



             43           In reviewing a grant of summary judgment, we read the record "in the light  

                                                                                                                                                             

most favorable to the non-moving party[,]  . . . making all reasonable inferences in its  

                                                                                                                                                                 

favor."  ConocoPhillips Alaska, Inc. v. Williams Alaska Petroleum, Inc., 322 P.3d 114,  

                                                                                                                                                              

 122 (Alaska 2014) (quoting Witt v. State, Dep't of Corr., 75 P.3d 1030, 1033 (Alaska  

                                                                                                                                                       

2003)).  In this case, however, the only disputed fact is whether Hahn "land[ed]" on  

                                                                                                                                                                 

Townsend's car or "bounced" on it, the former suggesting a longer period ofcontact with  

                                                                                                                                                              

the vehicle.  Even in the light most favorable to Hahn, it is clear that his contact with the  

                                                                                                                                                                

car was fleeting, and Hahn does not appear to contest GEICO's suggestion, and the  

                                                                                                                                                                

superior court's finding, that he fell to the ground shortly after contacting the car.  

                                                                                                                                                     



                                                                               -20-                                                                         7242
  


----------------------- Page 21-----------------------

                                                                                                        44  

what the reasonable expectations of an insured would be.                                                    Hahn's argument that the                  



court was required to stop after discovering that the word "occupying" was                                                              defined as   

                                                                                                 45  in isolation conflicts with the  

"upon" and apply its "ordinary and customary usage"                                                                                                  



interpretive approach we have adopted.  

                                                                         



                        The superior court properly sought to construe the word "upon" in context,  

                                                                                                                                             



relying on the doctrine of noscitur a sociis, which provides that "the meaning of a word  

                                                                                                                                                  



                                                                                               46  

. . . can be gleaned from the words associated with it."                                            The most important contextual  

                                                                                                                                         



word for the superior court was understandably the word "occupying," for which "upon"  

                                                                                                                                               



provided a partial definition.  While the terms that serve to define "occupying" in the  

                                                                                                                                                      



policy act to broaden the meaning we might give "occupying" in isolation - we do not  

                                                                                                                                                      

usually think of someone "getting out of" a car, or standing next to a car,47  as occupying  

                                                                                                                                         



it - the opposite is also true.  The word "occupying" must have some bearing on the  

                                                                                                                                                      



meaning of the word that partially defines it:  "upon."  The superior court determined  

                                                                                                                                       



that  "occupying,"  along  with  "getting  in"  and  "getting  out  of,"  implied  a  prior  

                                                                                                                                                 



relationship  with  the  insured  vehicle,  thereby  limiting  the  meaning  of  "upon."  

                                                                                                                                                             



Moreover, it concluded that a "reasonable insured would read all the terms of the policy  

                                                                                                                                                



in context, and [would] not assign undue weight to a single term."  We find no error in  

                                                                                                                                                        



the superior court's reasoning.  

                                     



            44  

                        Houle,  269  P.3d  at  657-58  (quoting  Allstate  Ins.  Co.  v.  Teel,  100  P.3d  2,  6  

(Alaska  2004).  



            45  

                        Id.  at  658  (quoting  Dowdy,   192  P.3d  at  998).  



            46  

                        Dawson  v.  State,  264  P.3d  851,  858  (Alaska  App.  2011).    



            47  

                        See  State  Farm  Mut.  Auto  Ins.  Co.  v.  Cookinham,  604  A.2d  563,  564  (N.H.  

 1992)  (claimant  who  was  leaning  against  friend's  insured  vehicle  and  was  seeking  a  ride  

at  the  time  of  the  accident  was  occupying  vehicle  for  purposes  of  UIM  coverage).   



                                                                          -21-                                                                    7242
  


----------------------- Page 22-----------------------

                                    Nor was it error for the court to consider case law interpreting similar                                                                                                             



provisions.    Indeed, that is what we have instructed the superior court to do when                                                                                                                                        

                                                                                    48   And in applying our independent judgment on appeal,  

interpreting insurance policies.                                                                                                                                                                                         



we  reach  the  same  conclusion  as  the  superior  court:                                                                                                      "[A]  layperson  would  not  

                                                                                                                                                                                                                                  



reasonably expect a UIM policy to pay benefits as a result of brief, incidental contact  

                                                                                                                                                                                                                        



with the insured vehicle."  The fact that the majority of jurisdictions the superior court  

                                                                                                                                                                                                                              

 surveyed also require some form of prior relationship with the insured vehicle49  adds  

                                                                                                                                                                                                                               



further  support  for  the  conclusion  that  this  rule  is  consistent  with  the  reasonable  

                                                                                                                                                                                                             



expectations of the insured.  

                                                      



                                     Hahn argues that the superior court should have followed the approach  

                                                                                                                                                                                                                  



taken by the Sixth Circuit in Bennett v. State Farm Mutual Automobile Insurance Co.,  

                                                                                                                                                                                                    

                                                                                                                                                                                     50   The Bennett court  

which found coverage in circumstances similar to those in this case.                                                                                                                                                           

                                                                                                                                                                        



held that a claimant was an occupant of an insured vehicle under a State Farm policy  

                                                                                                                                                                                                                           



                  48  

                                    Houle, 269 P.3d at 657-58 (quoting                                                                 Teel, 100 P.3d at 4).                                      



                  49  

                                     See, e.g.              ,  Dawes v. First Ins. Co. of Haw.                                                         , 883 P.2d 38, 54 (Haw. 1994)                                        

(requiring the person seeking coverage to have been an actual passenger in the insured  

                                                                                                                                                                                                                        

vehicle during the chain of events resulting in injury);                                                                                         Simpson v. U.S. Fid. &Guar. Co.                                                          ,  

 562 N.W.2d 627, 629 (Iowa 1997) (looking to "the relationship between the vehicle and                                                                                                                                             

the claimant . . .  to decide whether a particular claimant was 'occupying' the insured  

                                                                                                                                                                                                                        

vehicle at the time of his or her injury");                                                                      Allstate Ins. Co. v. Graham                                                  , 750 P.2d 1105,              

 1106 (N.M. 1988) (holding claimant "was simply not engaged in a transaction oriented  

                                                                                                                                                                                                                      

to the use of the [covered auto] at the time of the accident"); Gen. Accident Ins. Co. v.  

                                                                                                                                                                        

D'Alessandro,  671  A.2d  1233,  1235  (R.I.  1996)  (considering  among  other  factors  

                                                                                                                                                                                                                        

whether the injured party was "vehicle oriented" at the time of the accident, and whether                                                                                                                              

the party was "engaged in a transaction essential to use of the vehicle at the time");                                                                                                                                  

Butzberger v. Foster                                      , 89 P.3d 689, 697 (Wash. 2004) (requiring a causal connection                                                                                      

between the injury and the use of the vehicle, geographic proximity to the insured                                                                                                                                     

vehicle, and engagement in a transaction essential to the use of the vehicle).                                                                                                          



                  50                 731 F.3d 584, 585 (6th Cir. 2013).  

                                                                                                                                      



                                                                                                                 -22-                                                                                                          7242
  


----------------------- Page 23-----------------------

when, after being hit by that vehicle, she was thrown onto its hood and sustained further                                                



              51  

injuries.                                                                                                                                     

                   The policy defined "occupying" as "in, on, entering or alighting from," and  



                                                                                            52 

the parties stipulated that the claimant was on the car.                                        The court reasoned that while  



                                                                                                                                              

the term "on" was in tension with the common usage of "occupant," State Farm had  



                                                                                                                                                 53  

                                                                                                                                                     

defined the term as it wished and "mark[ed] out its zone of coverage in primary colors." 



                                                                                                                                             

Thus, the Bennet court found the claimant was entitled to coverage because she was "on"  



            54  

                                                                                                                                  

the car.         In so holding, the court rejected the decisions of courts that "have interpreted  



                                                                                                                                                 

[the same] 'type' of provision" because it did "not construe contractual provisions in  



                                                                                                                                        55  

                                                                                                                                             But  

gross" and some of the cases cited were distinguishable from the case at hand. 



                                                                                                                                           

there  are  good  reasons  not  to  follow  Bennet 's  example.                                          While  the Bennet  court  



                                                                                                                                     

recognized  the tension  between  "occupying" and  "on," in much  the same  way  the  



                                                                                                                                               

superior court here recognized that a "tension exists in the policy language between the  



                                                                                                                                                

inclusive  meaning  of  'upon'  and  the  more  restrictive  common  understanding  of  



                                                                                                                                                      

'occupying,' " the Bennet court elected to ignore that tension and read "on" in isolation.  



                                                                                                                                                 

This was consistent with the Sixth Circuit's interpretation of the applicable Ohio law in  



                                                                                       

that case, under which every insurance contract is interpreted "individually, according  



                                                                                                                                                 56  

                                                                                                                                                      

to  its  terms"  and  "in  accordance  with  the  same  rules  as  other  written  contracts." 



           51  

                       Id.  



           52  

                       Id.   



           53  

                       Id.  at  586.  



           54  

                       Id.  



           55  

                       Id.  (quoting  Abercrombie  & Fitch  Co.  v.  Fed.  Ins.  Co.,  370  Fed.  App'x  563,  

573  (6th  Cir.  2010)  (Kethledge,  J.,  dissenting)).  



           56  

                       Id.   at   585   (quoting  Hybud Equip. Corp.   v.   Sphere  Drake  Ins.   Co.,  597  

                                                                                                                             (continued...)  



                                                                      -23-                                                                 7242
  


----------------------- Page 24-----------------------

However, it directly conflicts with our approach                                                          to contractual interpretation under                          



Alaska law, which looks broadly to the reasonable expectations of the insured.                                                                     



                            Hahn separately argues that the term "upon" is ambiguous and must be                                                                              

                                                                                                                                                                     57    But  

resolved against the insurer or construed broadly as a provision of coverage.                                                                                              



"ambiguities  only  exist  when  there  are  two  or  more  reasonable  interpretations  of  

                                                                                                                                                                              

particular policy language,"58   and the operative term of the insurance policy is not  

                                                                                                                                                                            



"upon"  but  "occupying."                                  A  reasonable  insured  would  read  the  word  "upon"  as  

                                                                                                                                                                              



subordinate  to  the  word  "occupying"  and  conclude  that  a  person  who,  like  Hahn,  

                                                                                                                                                                                     



fleetingly impacts an insured vehicle that hit him and then falls to the ground was not  

                                                                                                                                                                             



occupying the insured vehicle even though he may have been momentarily "upon" the  

                                                                                                                                                                             



car after he was struck.  As the superior court also noted, adopting Hahn's approach  

                                                                                                                                                                



would have the absurd result of making UIM coverage dependent on where a potential  

                                                                                                                                                                 

claimant happens to land after a crash.59  

                                                                                      



              56  

                  (...continued)  

N.E.2d 1096, 1102 (Ohio 1992)).                        



              57            State Farm Mut. Auto. Ins. Co. v. Houle, 269 P.3d 654, 658 (Alaska 2011).  

                                                                                                                                                                                     



              58           Id. (quoting State Farm Mut. Auto. Ins. Co. v. Dowdy, 192 P.3d 994, 998  

                                                                                                                                                                            

(Alaska 2008)).  

                  



              59            See Rednour v. Hastings Mut. Ins. Co., 661 N.W.2d 562, 567 n.2 (Mich.  

                                                                                                                                                                      

2003) ("[I]f there are two persons who are struck by a vehicle while in the vicinity of the  

                                                                                                                                                                              

insured vehicle, and if one is thrown into the insured vehicle while the other is thrown  

                                                                                                                                                                     

into a tree, a highway, a curb, or a fence, only the former would be covered by the policy  

                                                                                                                                                                       

as interpreted by the dissent. Such happenstance does not form a rational basis for  

                                                                                                                                                                             

understanding the scope of coverage under an insurance policy.").  

                                                                                                                      



                                                                                     -24-                                                                                7242
  


----------------------- Page 25-----------------------

                       Hahn is correct that we interpret ambiguous insurance policies in favor of                                                



                                      60  

the purported insured.                                                                                                                       

                                          However, as we noted in Dugan v. Atlanta Casualty Cos., "the  



                                                                                                                                 

mere  fact  that   two  parties  to  an  insurance  contract  have  differing  subjective  

                                                                                                          61   Rather, in a situation  

                                                                                                                                     

                                                                                     

interpretations of that contract does not make it ambiguous." 



where "reasonable interpretation favors the insurer, and any other would be strained and  

                                                                                                                                              

tenuous, no compulsion exists to torture or twist the language of the contract."62                                                        As in  

                                                                                                                                                 

Dugan, "[t]his is such a situation."63                            In short, we are not persuaded to adopt Hahn's  

                                                                                                                                        



view that his landing momentarily on Townsend's car after being struck by it made him  

                                                                                                                                              



an occupant of that vehicle for purposes of insurance coverage.  

                                                                                             



                       Finally, Hahn suggests that the superior court erred by reading into the  

                                                                                                                                               



policy  an  additional  requirement  that  an  injured  person  must  have  "some  prior  

                                                                                                                                           



relationship" with the insured vehicle to be eligible for UIM coverage.  He argues that  

                                                                                                                                              



will  encourage  insurers  to  deny  coverage  based  on  implied  requirements,  forcing  

                                                                                                                                       



laypersons to grapple with "subtle legal distinctions when interpreting the terms of an  

                                                                                                                                                

                                                                                                                                        64    We  

insurance contract," contrary to our holding in Allstate Insurance Co. v. Teel .     

                                                                                                                                



disagree.   The need for some prior relationship is not an additional requirement, but  

                                                                                                                                               



merely a part of the meaning of the word "occupying" as understood by the lay insured.  

                                                                                                                                                      



It is undisputed that when Townsend's car struck Hahn, he was sitting on his motorcycle  

                                                                                                                                 



and was not yet upon the car.  Hahn appears to obscure this fact by defining the relevant  

                                                                                                                                       



            60  

                       Dugan  v.  Atlanta  Cas.  Cos.,113  P.3d  652,  655  (Alaska  2005).  



            61  

                       Id.  



            62  

                       Id.   (quoting   Ness   v.   Nat'l   Indem.  Co.  of  Neb.,  247 F.   Supp.   944,  947  

(D.  Alaska   1965)).  



            63  

                       Id.  



            64  

                       100  P.3d  2,  6-7  (Alaska  2004).  



                                                                      -25-                                                                 7242
  


----------------------- Page 26-----------------------

time frame broadly, describing himself as occupying Townsend's car "[d]uring the                                                                                                                                         



                                                                                                                                                                                                                  65  

course of the collision," or "during the crash and assault in which he was injured."                                                                                                                                    But  



                                                                                                                                                                                                                     

it is not disputed that Hahn's only contact with Townsend's car was temporary and came  



                                                                                                                                                                                                                           

entirely as a result of the collision. Under these circumstances, the lay insured would not  



                                                                                                                                                                                                                         

understand Hahn to be "occupying" the car at all.  Contrary to Hahn's suggestion, this  



                                                                                                                                          

is not a "subtle legal distinction," but mere common sense.  



                                                                                                                                                                                                               

                                   For the reasons outlined here, we find no error in the superior court's  



                                                                                                                                                                                                                         

conclusion  that  Hahn  was  not  "occupying"  Townsend's  car  and  therefore  was  not  



                                                                                                                                                                                                                        

insured under the GEICO policy.  Because this determination did not depend on any  



                                                                                                                                                                                                                           

disputed  factual  issues  but  rather  followed  from  the  superior  court  applying  its  



                                                                                                                                                                                                                            

interpretation  of  the  insurance  policy  to  undisputed  facts,  the  court  did  not  err  in  



                                                                                                                                                                                               

concluding  that  GEICO  was  entitled  to  judgment  as  a  matter  of  law  and  granting  



                                                                                      

summary judgment in GEICO's favor.  



                                                                                                                                                                                                                      

                  C.	              The Superior Court Did Not Err In Concluding That Townsend Was  

                                                                                                                                                                                                                                     

                                   Not A Real Party In Interest And Dismissing The Third-Party Claims.  



                                                                                                                                                                                                                

                                   Hahn sought to join Townsend as a third-party defendant under Alaska  



                                                                                                                                                                                                                 

Civil Rules 17 and 19 and brought the same negligence and intentional tort claims  



                                                                                                                                                                                                             

against Townsend in the declaratory judgment action as those he asserted in his separate  



                  65  

                                   Hahn also suggests that a person can occupy more than one vehicle at once                                                                                                          

so although he was occupying his motorcycle at the moment of impact, he could still                                                                                                                                     

have   been   occupying   Townsend's   vehicle   during  the   accident.     In   support   of   this  

argument, he cites                               Tata v. Nichols                         , which concluded that a man who was jump-starting                                                    

one vehicle with another and was crushed between themwhen an uninsured third vehicle                                                                                                                            

collided with the disabled car was eligible for uninsured motorist coverage under the                                                                                                                                     

policies of both stopped vehicles because he was "occupying" both.  848 S.W.2d 649,                                                                                                                                    

650-53 (Tenn. 1993).                                       But unlike Hahn, the claimant in                                                           Tata  was actively interacting                  

with both vehicles                                 before   the collision.                                  Id.    Thus,   Tata   is not inconsistent with our                                                           

conclusion here.   



                                                                                                            -26-	                                                                                                    7242
  


----------------------- Page 27-----------------------

 tort action against Townsend.                                        GEICO moved to dismiss or sever the third-party claims                                                              



                                                                                                                                                                                                 66  

under Alaska Civil Rule 21 on the grounds that the parties were improperly joined.                                                                                                                    



                               The  superior  court  found  that  joining  Townsend  as  a  "third-party  

                                                                                                                                                                           



 defendant" was improper.  The court explained that a third-party claim is governed by  

                                                                                                                                                                            



 Civil Rule 14, which "permits a defendant to implead any third party 'who is or may be  

                                                                                                                                                                                                    



 liable to [the defendant] for all or part of the plaintiff's claim' against him."  The court  

                                                                                                                                                                                             



reasoned  that  because  GEICO  sought  only  a  declaratory  judgment  regarding  its  

                                                                                                                                                                         



 contractual obligations to Hahn, no other party could be liable to Hahn for GEICO's  

                                                                                                                                                                                   



 claims. The court proceeded to address whether joinder could be supported under Rules  

                                                                                                                                                                                            



 17 or 19, which permit joinder of real parties in interest and indispensible or "necessary"  

                                                                                                                                                                              



parties, respectively.  The court reasoned that "[u]nlike GEICO or Hahn, Townsend's  

                                                                                                                                                      



 interest [was] in disputing and minimizing his personal liability for Hahn's injuries," but  

                                                                                                                                                                                                  



 concluded that the declaratory action would have no effect on this underlying liability.  

                                                                                                                                                                                                           



 The  court  emphasized  that  the  contractual  relationship  at  issue  in  the  declaratory  

                                                                                                                                                                              



judgment was between Hahn as the potential insured and GEICO, and that Townsend's  

                                                                                                                                                                             



presence in the case would not affect that contractual relationship.  Because the court  

                                                                                                                                                                                             



 found that Townsend had only a collateral interest in the outcome, it concluded that he  

                                                                                                                                                                                                    



was  neither a real party in interest nor a necessary party.   The superior court  also  

                                                                                                                                                                                



reasoned that allowing the third-party claims to go forward might lead to multiple and  

                                                                                                                        



 inconsistent legal obligations for Townsend becausethey duplicated theclaimsinHahn's  

                                                                                                                                                                                         



 tort suit.  The court therefore dismissed the third-party claims against Townsend.  

                                                                                                                                                                   



                66  

                               Alaska R. Civ. P. 21 ("Misjoinder of parties is not ground for dismissal of                                                                                          

 an action. Parties may be dropped or added by order of the court on motion of any party                                                                                                     

 or of its own initiative at any stage of the action and on such terms as are just. Any claim                                                                                                

 against a party may be severed and proceeded with separately.").                                                                                         



                                                                                                -27-                                                                                         7242
  


----------------------- Page 28-----------------------

                           On appeal, Hahn challenges only the court's determination that Townsend                                                          



                                                                                                 67  

was not a real party in interest under Rule 17.                                                                                                               

                                                                                                       He argues that Townsend "stood to  



                                                                                                                                                                            

directly benefit from the declaratory judgement action started by GEICO by having his  



                                                                                                                                                                       

personal  liability  to  Chad  Hahn  reduced  by  $50,000"  if  the  court  concluded  UIM  



                                                       

coverage was available to Hahn.  



                                                                                                                                                                

                           Having considered Hahn's argument, we find no error in the superior  



                                                                                                        

court's conclusion.  In this case, both GEICO and Hahn sought declaratory judgments  



                                                                                                                                                           

as to the scope of Hahn's contractual rights against GEICO and GEICO's contractual  



                                                                                                                                                                            

obligations to Hahn. While Townsend is the policy holder and named insured under the  



                                                                                                                                                                          

GEICO  policy,  UIM  coverage  is  not  liability  coverage  for  those  injured  by  the  

                                                                                                                                                            68   Hahn is  

                                                                                                                                                                              

policyholder; it is coverage for personal damages suffered by insured parties. 



the injured person who was purportedly occupying the insured vehicle; thus, only Hahn  

                                                                                                                                                                       



is potentially entitled to UIM benefits.  Civil Rule 17 "has been consistently interpreted  

                                                                                                                                                            



to mean that an action or claim for relief shall be prosecuted in the name of the party  

                                                                                                                                                                       



              67  

                           Rule 17 provides that "[e]very action shall be                                             prosecuted  in the name of the                        

real   party   in   interest."     (Emphasis   added.)     As   the   language   suggests,   this   rule   is  

generally applied to determine the propriety of the plaintiff.                                                                 See   6A C           HARLES  ALAN  

WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE   1543, at 482-83 (2010) (noting                                                                                   

                                                                                      

that "the question of who should or may be joined in the action must be determined                                                                        

under Rule 19 and Rule 20 rather than Rule 17(a)").                                         



              68           "The idea underlying underinsured motorist coverage is that the insured  

                                                                                                                                                                   

purchases coverage to benefit herself in case she is injured by a motorist whose liability  

                                                                                                                                                                  

insurance is insufficient to cover her injuries.  UIM coverage thus is meant to stand as  

                                                                                                                                                            

supplemental liability insurance covering an underinsured motorist for the benefit of the  

                                                                                                                                                                            

insured."  State Farm Mut. Auto. Ins. Co. v. Wilson, 199 P.3d 581, 584 (Alaska 2008).  

                                                                                                                                                                                   

This is consistent with Townsend's GEICO policy, which describes UIM coverage as  

                                                                                                                                                                             

"protection for you and your passengers for injuries caused by uninsured, underinsured  

                                                                                                                                                       

and hit-and-run motorists," in contrast to liability coverage, which it described as "your  

                                                                                                                                                                      

protection against claims from others."  

                                                                                  



                                                                                    -28-                                                                               7242
  


----------------------- Page 29-----------------------

                                                                                                                                                                                                                                                                                                                                                                               69  

who,   by   the   substantive   law,   possesses   the   right   sought   to   be   enforced."                                                                                                                                                                                                                                                                                      Here,  



Townsend has no clear right to enforce the UIM provision because he is not the insured                                                                                                                                                                                                                                                                                             



in this context. Thus, the superior court did not err in determining that Townsend was not                                                                                                                                                                                                                                                                                                            



a real party in interest and dismissing Hahn's claims against him.                                                                                                                                                                                                                         



V.                              CONCLUSION  



                                                              We AFFIRM the superior court's decision in all respects.                                                                                                                                                                            



                               69                             Burns  v. Anchorage  Funeral  Chapel,  495  P.2d  70,  72  (Alaska 1972).  

                                                                                                                                                                                                                                                                                                                                                                                     



                                                                                                                                                                                                 -29-                                                                                                                                                                                                              7242  

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