Allstate Ins. Co. v. Fusco
| Decision Date | 28 October 1966 |
| Docket Number | No. 25,25 |
| Citation | 101 R.I. 350,223 A.2d 447 |
| Parties | ALLSTATE INSURANCE COMPANY v. Judith S. FUSCO. Appeal |
| Court | Rhode Island Supreme Court |
This is an appeal from a judgment entered by a superior court justice pursuant to his decision that the uninsured automobile bodily injury benefit contained in the amendatory endorsement attached to a policy of automobile insurance issued by the plaintiff company to the defendant's deceased spouse is not recoverable in the circumstances established by the instant record.
It appears therefrom that on March 12, 1965, plaintiff, hereafter referred to as Allstate, delivered its 'Crusader Policy,' so called, providing automobile liability coverage to Ralph C. Fusco, then husband of defendant. By the terms of an amendatory endorsement it is provided:
'Section II-Protection Against Bodily Injury By Uninsured Automobiles
Coverage S-Bodily Injury Benefit Insurance Allstate will pay all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sustained by the insured, caused by accidnt and arising out of the ownership, maintenance or use of such automobile.'
The record further discloses that on March 27, 1965 said Ralph C. Fusco, hereafter called the decedent, was killed while riding as a passenger in an automobile owned and operated by Thomas J. Baumgardner who held a policy of liability insurance issued by another carrier, namely, Transamerica Insurance Company. The limits of Baumgardner's coverage, however, were $5,000 for any one person and $10,000 for any one accident. Allstate's Crusader Policy on the other hand provided for limits of $10,000 for injuries to any one person and $20,000 for any one accident.
The Crusader Policy, by the terms of the amendatory endorsement, made defendant beneficiary as surviving spouse and she made demands on Allstate for payment of the $5,000 differential between the basic limits of the two policies. Her claim was predicated on her contention that as to said differential Baumgardner was an 'uninsured' motorist for whose negligence Allstate was required to respond in damages.
The defendant's claim being denied by Allstate, she proceeded to arbitration as required by the Crusader Policy when the parties could not agree. Taking the position that, because Baumgardner had liability coverage even though in a lesser sum than that provided in its Crusader Policy, the automobile in which decedent was killed was not 'uninsured' as defined by Allstate and that in any event the position taken by defendant was not such as comes within the contemplation of the arbitration clause, Allstate initiated the instant proceedings. It sought thereby to enjoin defendant temporarily and permanently from pursuing her demand for arbitration as was the case in American Universal Ins. Co. v. Costello, 95 R.I. 191, 185 A.2d 447.
The cause was heard by a superior court justice on complaint, answer, replication and proof. Allstate conceded Baumgardner's negligence and the parties thereupon submitted to a determination by the court of the ultimate question, namely, was Baumgardner an 'uninsured' motorist to the extent that his liability coverage with another company was less than that provided for in Allstate's policy issued to the decedent?
The parties further stipulated that the court should also determine the amount of damages for bodily injuries resulting in death provable by defendant in the event that it should be determined that the uninsured automobile coverage provided by Allstate's Crusader Policy was applicable to the $5,000 differential.
On the evidence offered by defendant, the trial justice found that the damages were in excess of the $10,000 limit but held that Baumgardner was not an 'uninsured' motorist. The trial justice, in substance, based his decision on the definition of an 'uninsured automobile' as set forth in Allstate's policy which in pertinent part reads as follows:
'4. 'uninsured automobile' means:
(a) an automobile with respect to the ownership, maintenance or use of which there is no bodily injury liability insurance applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile * * *.'
He concluded that 'no bodily injury liability insurance' could not reasonably be construed to mean 'insufficient bodily injury liability insurance' and ordered judgment entered for Allstate.
Appealing therefrom, defendant makes several contentions. The first of these is, in effect, that the trial justice misconceived and thus failed to make into consideration a provision of the amendatory endorsement which reads as follows:
'If there is other insurance
'With respect to bodily injury sustained by any insured while occupying any automobile, other than one owned by the named insured, the insurance hereunder shall not apply if the owner of such automobile has insurance similar to that provided for herein.
'Subject to the preceding paragraph, if the insured has other similar insurance available to him, any damages shall be deemed not to exceed the higher of the applicable limits of the respective coverages, and such damages shall be pro-rated between such coverages in such proportion as each coverage bears to the total of such limits.'
It is the thrust of defendant's contention with regard to the 'other insurance' provision that the words 'insurance similar' as set forth in the first paragraph mean similar in amount as well as the nature of the coverage. This, she argues, is clear from the repeated use of 'similar' when used in connection with the prorating formula set forth in the second paragraph of the quoted provision.
We are in accord with her contention that the amount of coverage is included in the reference to 'similar insurance,' but she misconceives the nature of the coverage to which it refers, namely, bodily injury resulting from the negligence of an uninsured motorist. It would have meaning if, for example, the automobile in which the decedent was riding had been negligently struck by an uninsured automobile and Baumgardner carried insurance under which the decedent would have been included as an insured. In that event Allstate and Baumgardner's carrier, Transamerica Insurance Company, would prorate the damages for bodily injury sustained by the decedent and payable under the uninsured motorist provision of both policies.
Such, however, is not the...
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