Bryant v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 08 March 1965
• Citation: 205 Va. 897,140 S.E.2d 817
• Parties: Bernard H. BRYANT, Jr. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
• Court: Virginia Supreme Court

Page 817

140 S.E.2d 817

205 Va. 897

Bernard H. BRYANT, Jr. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.

Supreme Court of Appeals of Virginia.

March 8, 1965.

Rehearing Denied April 26, 1965.

Paul Whitehead, Lynchburg, for plaintiff in error.

Henry M. Sackett, Jr., Lynchburg, (Williams, Robertson & Sackett, Lynchburg, on brief), for defendant in error.

Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON and CARRICO, JJ.

BUCHANAN, Justice.

The question for decision in this case is whether the appellant, Bernard H. Bryant, Jr., an insured under two separate bodily injury liability insurance policies issued by the appellee, State Farm Mutual Automobile Insurance Company, may recover on both policies pursuant to the uninsured motorist statute, § 38.1-381 of the Code, 1964 Cum.Supp.

On April 20, 1959, Bryant, Jr., was driving on a highway in Amherst county a 1958 Ford truck owned by his father, Bryant, Sr., when he was struck and injured by an uninsured motor vehicle being driven by Whithorn. He brought suit in Amherst county against the driver and owner of the vehicle and on February 6, 1961, recovered a judgment against them for $85,000. At the time of the accident Bryant, Jr., was an insured under the terms of a bodily injury liability insurance policy issued by State Farm to his father, Bryant, Sr., which covered Bryant, Sr., 'and any other person while occupying the insured motor vehicle;' and he, Bryant, Jr., was also the named insured in a bodily injury liability policy issued to him by State Farm, and in his suit against Whithorn and others he served a copy of process on State Farm. Each policy had a limit of $10,000 for each person injured.

State Farm acknowledged liability on its policy issued to Bryant, Sr., and paid to Bryant, Jr., $10,059 on his $85,000 judgment in settlement of all claims of Bryant, Jr., under the Bryant, Sr., policy.

The present action was brought by Bryant, Jr., to recover on the policy issued to him by State Farm, to which the latter filed a plea asserting that there was no liability upon it under its policy issued to Bryant, Jr., because that policy provided in Part 4, Section Six, as follows:

'* * * With respect to bodily injury to an insured while occupying an automobile not owned by the named insured under this coverage, the insurance hereunder shall apply only as excess insurance over any other similar insurance available to such occupant, and this insurance shall then apply only in the amount by which the applicable limit of liability of this coverage exceeds the sum of the applicable limits of all such other insurance. * * *'

The case was submitted to the court on a stipulation of facts, in substance as stated above, including the fact that when the plaintiff, Bryant Jr., was injured he was occupying and driving the 1958 Ford truck which was not owned by him. On the pleadings and stipulation of facts the court below sustained State Farm's plea and dismissed plaintiff's action, and plaintiff appeals. The controlling question is whether the limitation of liability in the policy issued to Bryant, Jr., as quoted above, is valid and effective under the terms of said § 38.1-381 of the Code.

Paragraph (a) of that section provides, inter alia, that no policy of bodily injury liability insurance shall be issued or delivered in this State to the owner of a motor vehicle unless it contains a provision insuring the named insured and other described persons against liability for death or injury caused by negligence in the operation of such vehicle.

Paragraph (b) of said § 38.1-381 provides:

'Nor shall any such policy or contract relating to ownership, maintenance or use of a motor vehicle be so issued or delivered unless it contains an endorsement or provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle, within limits which shall be no less than the requirements of § 46.1-1(8), as amended from time to time, of the Code herein. * * *'

Section 46.1-1(8) at the time of this accident provided that the minimum amount of such insurance must me $10,000 for one person in one accident and $20,000 for two or more persons in one accident.

In State Farm Mutual Automobile Ins. Co. v. Duncan, 203 Va. 440, 125 S.E.2d 154, the insured argued that he had a right to rely on the terms of the policy as written, and since it made no mention of serving process on the insurance company the company could not rely on failure to serve process on it as required by § 38.1-381(e) (1); but we held that the statutory provision was as much a part of the policy as if incorporated therein. We had said so in the previous cases there cited.

In Doe v. Brown, 203 Va. 508, 125 S.E.2d 159, we said that the insurance company had issued its policy in accordance with § 38.1-381(b) and by accepting the risk it received an additional premium from the named insured and became entitled to share in the uninsured motorist fund according to § 12-66 of the Code, and to allow it to escape liability on the ground asserted by it that the statute was unconstitutional would allow it to escape a risk which it had accepted and to become unjustly enriched.

We pointed out in that case that the endorsement on the policy, which had been approved by the State Corporation Commission, required that before there could be recovery against the insurance company there must be physical contact between the vehicles involved, and that notice of the accident must be given within thirty days to the insurance company; but, we said, the right of the plaintiff to bring his action to establish legal liability on the uninsured motorist was not given by the endorsement but by the statute, § 38.1-381(e); that the statute was silent on the requirement of contact and notice to the insurance company, and hence it was not necessary to allege contact and notice in the motion for judgment.

Mangus v. Doe, 203 Va. 518, 125 S.E.2d 166, was an action by Mangus to recover damages inflicted by an unknown and hence uninsured motorist. On motion of the insurance company the trial court dismissed the action for failure of the plaintiff to exercise diligence in ascertaining the identity of the tort-feasor. We reversed because § 38.1-381(c) provides that a motor vehicle is uninsured if the owner or operator is unknown, and we said that this provision 'is as much a part of the policy as if it were clearly written therein. * * * There is no limitation in the statute on the commonly...