The Supreme Court of Idaho reversed an appellate court's grant of summary judgment in favor of an insurer after finding the insurer's policy provided illusory UIM coverage. The case is Pena v. Viking Ins. Co., 503 P.3d 201 (Ida. 2022).

Erick Pena's auto policy with Viking had UIM limits of $25,000 per person and $50,000 per accident as well as a $5,000 limit for medical care. Pena was injured in an auto accident in 2016, for which the other driver's insurer paid its $25,000 policy limit; Viking paid the limit for medical care. Pena subsequently filed a UIM claim. The Viking policy defined an underinsured motor vehicle as "[a] motor vehicle to which a bodily injury liability bond or policy applies at the time of the car accident providing bodily injury liability limits less than the limit of liability for this coverage." (emphasis original). Viking denied Pena's claim, saying the other driver's car was not an "underinsured motor vehicle" because the other driver's liability limit was not less than Pena's limit. 

Pena sued, alleging the policy definition for "underinsured motor vehicle" and the offsets in the Viking policy rendered UIM coverage illusory. Viking claimed its policy complied with Idaho law and asserted it had a right to offset Pena's recovery from the other driver against Pena's limits. The lower court found the language in the Viking policy was not identical to Idaho's UIM statute, but they "fixed" that problem by replacing the policy definition of "underinsured motor vehicle" with the statutory definition. The judges said the policy was not illusory because it could afford coverage to a small group of plaintiffs, even if Pena was not one of them. Judgment was granted to Viking, and Pena appealed.