Bourgeois v. Government Emp. Ins. Co., 10348

• Decision Date: 08 July 1975
• Docket Number: No. 10348,10348
• Citation: 316 So.2d 804
• Parties: Percy Charles BOURGEOIS et ux. v. GOVERNMENT EMPLOYEES INSURANCE COMPANY.
• Court: Court of Appeal of Louisiana — District of US

Page 804

316 So.2d 804

Percy Charles BOURGEOIS et ux. v. GOVERNMENT EMPLOYEES INSURANCE COMPANY.

No. 10348.

Court of Appeal of Louisiana, First Circuit.

July 8, 1975.

Rehearing Denied Aug. 26, 1975.

Writ Refused Oct. 24, 1975.

Robert E. Leake, Jr., New Orleans, for appellants.

Prentice L. G. Smith, Jr., Baker, for appellee.

Before LANDRY, SARTAIN and BLANCHE, JJ.

BLANCHE, Judge.

The defendant, Government Employees Insurance Company (GEICO), appeals an adverse judgment of the Nineteenth Judicial District Court which awarded the plaintiffs, Percy Charles Bourgeois, et ux., the sum of $12,000, together with interest at the rate of 7 percent per annum from October 17, 1973, until paid, and all costs of the proceedings. We affirm.

The following facts were stipulated in the trial court:

On July 8, 1973, Percy Charles Bourgeois, Jr., a resident of the household of his father, Percy Charles Bourgeois, Sr., was struck and killed by a vehicle driven by Eva Mae McCray while Bourgeois was a guest passenger riding on an uninsured 1967 Suzuki motorcycle in East Baton Rouge Parish.

At the time of the accident, Percy Charles Bourgeois, Sr., was insured by GEICO under its automobile liability policy No. 582--52--76. Two automobiles were insured under this single policy, a 1968 Pontiac with uninsured motorist coverage of $5,000 for a premium of $6 and medical payments coverage of $2,000 for a premium of $12.45; and a 1965 Willys with uninsured motorist coverage of $5,000 for a premium of $5 and medical payments coverage of $1,000 for a premium of $8.45. Eva Mae McCray was an 'uninsured motorist' within the contemplation of GEICO's policy, and her negligence was the sole and proximate cause of the accident.

On October 17, 1973, the plaintiffs filed proof of claim for general damages as a result of the accident and death of their son exceeding the sum of $10,000 and funeral expenses exceeding the sum of $3,000.

On December 18, 1973, and again on January 7, 1974, GEICO offered to pay plaintiffs $7,000 in settlement of its policy obligations, which offers plaintiffs refused. The plaintiffs contended that the uninsured motorist and medical coverage benefits of the policy should be 'stacked,' thereby affording them a larger recovery. After a trial on the merits, the trial judge allowed 'stacking' of the uninsured motorist coverage but refused it as to the medical payments coverage. The issue before this Court are the propriety of 'stacking' uninsured motorist coverage on two vehicles covered on a single policy when two sepate premiums are paid and the refusal to do the same regarding medical payments coverage.

Concerning the uninsured motormist coverage, GEICO relies upon its limits of liability clause to limit its payment under the policy to a total of $5,000. The clause reads as follows:

'Limits of Liability:

'(a) Regardless of the number of automobiles or trailers to which this policy applies, the limit of liability stated in the declarations as applicable to 'each person' is the limit of the company's liability for all damages, including damages for care or loss of services, because of bodily injury sustained by one person as the result of any one accident; and, subject to the above provision respecting each person, regardless of the number to (sic) automobiles or trailers to which this policy applies, the limit of liability stated in the declarations as applicable to 'each accident' is the total limit of the company's liability for all damages, including damages for care of loss of services, because of bodily injury sustained by two or more persons as the result of any one accident.' (Exhibit D--1--Emphasis supplied)

LSA-R.S. 22:1406 requires automobile liability insurers to provide uninsured motorist coverage on all automobile insurance issued in this state in not less than the limits prescribed in the Motor Vehicle Safety Responsibility Law of Louisiana, in particular, LSA-R.S. 32:900, subd. B; that is, in amounts not less than $5,000 for bodily injury to one person and $10,000 for all bodily injuries arising out of a single accident.

In Graham v. American Casualty Company of Reading, Pennsylvania, 261 La. 85, 259 So.2d 22 (1972), the Supreme Court held that an 'other insurance clause,' or 'pro rata' clause, could not be employed to reduce the uninsured motorist coverage of insurance below the statutory minimum.

The plaintiff therein had in force three separate policies of $5,000 each for uninsured motorist coverage and as his damages exceeded the total of the three, he was allowed to 'stack' them for maximum recovery.

The holding of Graham that the law requires that each policy issued must provide not less than the minimum $5,000 coverage regardless of attempts to reduce the minimum coverage of each policy by pro rata clauses was reiterated in Deane v. McGee, 261 La. 686, 260 So.2d 669 (1972).

To distinguish Graham and Deane, supra, the defendant asserts that the instant case concerns a single policy which covers two automobiles, whereas the former cases dealt with separate policies for each automobile. The defendant then reasons that the Supreme Court mandate that Every policy issued in the state afford the minimum $5,000 coverage for uninsured motorist has been complied with in the instant case. A fortiori he argues that the instant policy is a single policy, being No. 582--51--76, and being a single policy, it conforms with the mandate of R.S. 32:900, subd. B and Graham and Deane, in that it affords the minimum amount of protection.

It is clear from reading Graham and Deane that the Supreme Court considers that an unambiguous clause within an insurance policy should be given effect except where it runs afoul of some legal prohibition. In fact, that was the very foundation of both cases. In the instant case we are confronted by a clearly unambiguous clause which limits recovery under the instant policy to $5,000 per person per accident, even though two vehicles are insured therein, having a combined total liability of $10,000 per person. We must, therefore, determine if the limiting clause runs afoul of some legal prohibition.

Concerning defendant's contention that the law requires only that each Policy offer the minimum coverage, we note that LSA-R.S. 22:1406 mandates said coverage for 'any motor vehicle.' R.S. 22:1406, subd. D(1) requires that:

'No automobile liability insurance Covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to Any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, For the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, however, that the coverage required under this section shall not be applicable where any insured named in the policy shall reject the coverage or selects lower limits.' (Emphasis supplied)

We note that the Court in Graham was faced with two separate policies insuring one automobile each, and when they interpreted the requirements of Section 1406, they simply said:

'Since uninsured motorist protection is required by Section 1406 of Title 22 of the Revised Statutes to be offered by the insurer in connection with every automobile liability policy delivered in this state, those policies must conform with the statutory requirements. In pertinent part the statute sets forth that

No...