Alabama Farm Bureau Mut. Cas. Ins. Co., Inc. v. Mitchell

• Decision Date: 18 July 1979
• Citation: 373 So.2d 1129
• Parties: ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY, INC. v. P. P. MITCHELL, as Executor of the Estate of Louise C. Mitchell, Deceased, and Donald Ray Brown, a minor. Civ. 1900.
• Court: Alabama Court of Civil Appeals

Page 1129

373 So.2d 1129

ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY, INC. v. P. P. MITCHELL, as Executor of the Estate of Louise C. Mitchell, Deceased, and Donald Ray Brown, a minor.

Civ. 1900.

Court of Civil Appeals of Alabama.

July 18, 1979.

Rehearing Denied Aug. 22, 1979.

Jacob Walker, Jr., of Walker, Hill, Adams, Umbach & Herndon, Opelika, for appellant.

Michael I. Kent, Opelika, for appellee.

Richard D. Lane, Auburn, Court Appointed Guardian ad litem for appellee, Donald Ray Brown, a minor.

BRADLEY, Judge.

This is an appeal from a declaratory judgment determining the rights and obligations of Alabama Farm Bureau Mutual Casualty Insurance Company, Inc. (hereinafter Farm Bureau) under the uninsured motorist provisions of its automobile insurance policy issued to Mrs. Louise Mitchell (hereinafter Mrs. Mitchell or "the insured") now deceased.

Donald Ray Brown (hereinafter Brown) entered a guilty plea in the Circuit Court of Lee County for the murder in the first degree of Mrs. Mitchell and was sentenced to life imprisonment. The murder occurred on or about October 13, 1976. The automobile insurance policy insuring a 1972 Chevrolet Malibu owned by Mrs. Mitchell was in effect at the time of the murder.

According to the deposition of Brown, the facts relating to the murder of Mrs. Mitchell are as follows: Brown was employed by Mrs. Mitchell to cut her lawn, trim hedges, and do other odd jobs. He lived near her residence with his parents and had known Mrs. Mitchell about a year. On the day of the murder, Brown went to see Mrs. Mitchell. He and Mrs. Mitchell began to "tussle." Brown threw Mrs. Mitchell on the floor, straddled her, and hit her with his fists. He bumped her head on the floor a number of times and took a towel and tried to choke her with it. Mrs. Mitchell became unconscious or semi-conscious, at which time Brown took Mrs. Mitchell's car keys out of her purse, drove her car around to the back door, took a blanket and wrapped it around her, and placed Mrs. Mitchell in the trunk of her car. Brown said it seemed Mrs. Mitchell was making faint groaning noises when he put her in the trunk. He thought she was dying. Brown drove the car all day; he then parked the car behind an old abandoned house and walked home. The car remained there all night with Mrs. Mitchell in the trunk. Brown testified he looked in the trunk on one occasion after he thought he heard bumping noises while he was driving around. He said Mrs. Mitchell did not move and he assumed she was dead. Brown touched her and said she felt damp cold. In Brown's best judgment, two hours had elapsed between the time he put Mrs. Mitchell in the trunk and the time he looked in on her. Brown drove the car through rural areas of the county the next day and left the car in a field. He looked in on Mrs. Mitchell again and said he was sure she was dead. He closed the trunk and left.

Brown testified he swished the car around on some of the dirt roads. He said he did not intend to cause Mrs. Mitchell harm by driving that way. When Brown abandoned the car, the gas tank was on "E". He could not remember whether he left the car running when he abandoned it. He said he might have. He also said he was not trying to cause Mrs. Mitchell's death by driving the car. Brown said he put Mrs. Mitchell in the trunk so he could find a place to dispose of her. He testified he did not want her riding in the front with him as someone might have seen her.

The executor of the estate of Mrs. Mitchell filed a wrongful death action against Brown. The complaint as amended avers Brown wantonly operated the automobile.

As a result of the . . . wanton misconduct . . . Louise C. Mitchell, deceased, suffered from lack of food, lack of water, and lack of oxygen from which combined causes she died. Plaintiff avers that defendant wantonly operated the automobile . . . in such a fashion as to torment the said Louise C. Mitchell, deceased, during her hours of agony and such a fashion as to hasten her death.

Farm Bureau was notified by letter of the wrongful death suit against Brown. Farm Bureau filed an action for declaratory judgment against both the estate of Mrs. Mitchell and Brown seeking to ascertain its duty and obligation under the uninsured motorist provisions of its policy issued to Mrs. Mitchell in regard to the pending wrongful death action against Brown. It prayed the circuit court declare Farm Bureau was not obligated to defend Brown in the wrongful death suit and also was not obligated to pay damages which the executor of the estate might obtain against Brown. Furthermore, Farm Bureau asked the circuit court to declare the insured automobile was not an "uninsured motor vehicle" within the meaning of the policy nor within the meaning of the Alabama Uninsured Motorist Statute, Code of Alabama 1975, § 32-7-23; that Brown was not an uninsured motorist within the meaning of the policy nor within the meaning of the Alabama Uninsured Motorist Statute; and any other proper relief.

The circuit court ordered, in pertinent part, the following: (1) Brown was not entitled to protection of the liability insurance provision because he was not operating the vehicle as an agent, servant or employee, or with express or implied permission. Brown was not a named insured under any policy applying to the automobile. Farm Bureau was not obligated to defend Brown under the liability portion of the policy; (2) on the occasion in question, the automobile driven by Brown was an "uninsured vehicle" within the meaning of the language in the policy. The provision of the policy "that an uninsured automobile shall not include '(ii) an automobile owned by the Named Insured or by any resident of said household,' is invalid as applied to the facts in this case;" (3) Farm Bureau was liable to pay damages under the "uninsured motorist" provisions of the policy if a judgment is rendered against Brown for the death of Mrs. Mitchell, arising out of the use or operation of the automobile.

The issues to be decided on appeal are: (1) whether the provision of the policy "that an uninsured automobile shall not include '(ii) an automobile owned by the Named Insured or by any resident of said household,' " conflicts with the Alabama Uninsured Motorist law, I. e., § 32-7-23, Code of Alabama 1975, and is thereby void and unenforceable; (2) whether this court may decide if Mrs. Mitchell's death arose out of the "use" of the automobile in question; (3) whether there can be recovery under the uninsured motorist provisions of an automobile insurance policy where the death of the insured results from an intentional act.

Code of Alabama 1975, § 32-7-23 (uninsured motorist coverage) provides in part as follows:

No automobile liability . . . policy . . . shall be delivered or issued . . . in this state . . . unless coverage is provided therein . . . for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury . . . including death . . . .

The pertinent provisions of the policy read as follows:

The Company will pay all sums which the Insured or His legal representative shall be legally entitled to recover as damages except punitive damages (other than death) From the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, Including death resulting therefrom, hereinafter called "bodily injury," sustained by the insured, Caused by accident and Arising out of the ownership, maintenance or use of such uninsured automobile provided for the purposes of this coverage . . . . (Emphasis added.)

Under that part of the policy entitled "Definitions Insuring Agreement III," it reads in part:

(b) Insured Automobile.

The term "insured automobile" means an automobile:

(1) which is owned by the Named Insured and described in the declarations of the policy, . . .

but the term "insured automobile" shall not include:

(ii) under subparagraphs (1) and (2) above . . . an automobile unless being used by or with the express permission of such Named Insured or such spouse; or

(c) Uninsured Automobile.

but the term "uninsured automobile" shall not include:

(ii) an automobile owned by the Named Insured or by any resident of the same household;

Farm Bureau contends the exclusion involved in the definition of "uninsured automobile" (c)(ii) above and its relationship to uninsured motorist coverage has been specifically approved by Lammers v. State Farm Mutual Automobile Insurance Company, 48 Ala.App. 36, 261 So.2d 757, Cert. den. 288 Ala. 745, 261 So.2d 766 (1972). On the other hand, the executor of Mrs. Mitchell's estate contends Lammers, supra, has been so eroded by Higgins v. Nationwide Mutual Insurance Co., 50 Ala.App. 691, 282 So.2d 295, Aff'd 291 Ala. 462, 282 So.2d 301 (1973), and State Farm Automobile Insurance Co. v. Reaves, 292 Ala. 218, 292 So.2d 95 (1974) that it no longer has any validity.

Lammers involved a suit by the wife of a named insured (husband) against an insurer under the uninsured motorist provisions of an automobile insurance policy. The wife sustained injuries as the result of an accident involving an insured truck driven by her husband. The truck was the only vehicle which was involved in the accident. The wife's complaint alleged that because of the "household exclusion" clause of the policy she could not recover under the liability portion of the policy; therefore the vehicle was "uninsured" and her husband was an "uninsured motorist" insofar as her claim was concerned. An "uninsured automobile" was defined in the "uninsured motorist" provisions of the policy as not including an automobile owned by the named insured or any resident of the same household. The issue was whether this exclusion conflicted with Alabama's Uninsured Motorist Coverage law so as to be void as to persons injured while riding in the named automobile or any other automobile...