Barnes v. Tarver

• Decision Date: 21 July 1978
• Citation: 360 So.2d 953
• Parties: Charles Edward BARNES v. Norman Eugene TARVER and American Motorist Insurance Company, a corporation, and Liberty Mutual Insurance Co., a corporation. SC 2585.
• Court: Alabama Supreme Court

Page 953

360 So.2d 953

Charles Edward BARNES v. Norman Eugene TARVER and American Motorist Insurance Company, a corporation, and Liberty Mutual Insurance Co., a corporation.

SC 2585.

Supreme Court of Alabama.

July 21, 1978.

B. F. Stokes, III, of Gibbons, Stokes & Clark, Mobile, for appellant.

James J. Duffy, Jr. and John N. Leach, Jr., Mobile, for American Motorist Ins. Co., appellee.

Michael D. Knight, Mobile, for Liberty Mut. Ins. Co.

Charles S. Street, Mobile, for Norman Eugene Tarver.

ALMON, Justice.

Appellant Barnes brought a negligence action against Tarver for personal injuries. Barnes, a pedestrian, was hit by an automobile driven by Tarver.

Tarver was uninsured. Barnes is insured under his insurance policy issued by American Motorist Insurance Company, and under an insurance policy issued by Liberty Mutual Insurance Company to Poole Truck Line, Inc.

Barnes amended his complaint to add American Motorist and Liberty Mutual, Appellees, as additional parties defendant seeking to recover under the uninsured motorist provisions of the policies. After answering the complaint, the two insurance companies filed a cross-claim against co-defendant Tarver for any payments they were liable to pay Barnes. These cross-claims were based on the insurance companies' right of subrogation provided for in the insurance contracts.

The accident occurred around 6:00 P.M. on November 17, 1974, in front of Barnes' house. He lived in Calvert, Alabama, on U. S. Highway 43. At that time Barnes was a truck driver and owned a tractor-trailer which he leased to Poole Truck Line, Inc. The rig was parked across the two-lane highway from his home. While sitting in his living room, Barnes saw a fire in or under his truck. He went outside to investigate and while crossing the highway was struck by an automobile driven by Tarver.

The jury, after considering evidence of negligence and contributory negligence, returned a verdict for defendant Tarver. Judgment was also rendered by the court for Tarver on the cross-claim filed by American Motorist and Liberty Mutual.

Barnes complains that the trial judge erroneously charged the jury on the subrogation rights of the insurance companies. He objected to the following portion of the oral charge:

"The last issue is that the Defendant Tarver had no liability insurance available; that he was an uninsured motorist. All right, lastly I must tell you this that in the event the uninsured motorist coverage is available to the Plaintiff in this case the Defendants American Motorist Insurance Company and the Liberty Mutual Insurance Company would be entitled to a judgment against the Defendant Tarver up to the limit of their respective uninsured motorist coverage. In otherwords (sic), you have a situation of where under the terms of their agreement, their contracts with the Plaintiff, they would be substituted to the extent and limits of their liability for the Defendant's liability to the Plaintiff if you determine and then ."

Although the court mentioned the issue of subrogation, it was not submitted to the jury for its decision. The court admonished the jury not to consider the ultimate impact that uninsured motorist coverage or subrogation might have on the parties, but to consider and decide solely the issue of Tarver's liability to Barnes. We quote from the court's charge:

"The first thing I am going to do is to, I will give you the evidence in this case which you will take to the jury room with you. I am going to give you a verdict form and this has only to do with whether or not Charles Edward Barnes recovers against Norman Eugne Tarver for personal injuries. I don't want you to think one thing about this uninsured motorist's coverage in this deliberation and then when you return a verdict to me, I will decide at that time whether to send you out again and ask you to answer yes or no to one question which I shall ask you. At that time I don't want you to be concerned with that now. I want you to retire and consider your verdict as to whether for or against the Defendant Tarver on the count of the accident which occurred at the time and place which has been testified to you."

Nevertheless, it is contended that the instruction was error because the insurance companies were not subrogated to the rights of Barnes. Two reasons are asserted for this proposition: (1) the insurance companies denied Barnes' claim, thereby waiving their rights of subrogation, and (2) payment of a claim by the insurance companies is a condition precedent to the right of the insurer to become subrogated.

There was no evidence that the insurance companies denied Barnes' claim other than the fact that the insurance companies were party defendants. This was not an issue in the lawsuit.

There is no allegation that Barnes submitted a claim which was denied nor was evidence adduced to that end. Furthermore, the nature of uninsured motorist coverage distinguishes this case from the case Barnes relies on, Poole v. William Penn Fire Ins. Co., 264 Ala. 62, 84 So.2d 333 (1955).

In Poole the action was by Poole against a fire insurer to recover the loss of an ambulance caused by a tort-feasor. Poole filed a claim which the insurer denied. Poole sued the tort-feasor, received $3,000.00, and executed a release. Poole then instituted a suit against its insurer on the policy. The insurer claimed the suit was barred because (1) the release executed by Poole cut off insurer's subrogation rights, and (2) the consideration for the release amounted to full coverage of the policy and constituted a discharge of insurer's liability. The court held that the denial of the claim by the insurer waived its right to subrogation and Poole's action on the policy was not barred. The court noted it was the insurer's own conduct which forced Poole to proceed against the tort-feasor to save himself. 264 Ala. at 66, 84 So.2d 333.

The right of the insured in Poole to the benefits of the policy depended in no way upon the legal liability of the tort-feasor. The right of Barnes to recover...