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

• Decision Date: 31 January 1973
• Docket Number: 3,2,No. 47539,Nos. 1,47539,s. 1
• Citation: 128 Ga.App. 285,196 S.E.2d 485
• Parties: Marvin L. BASS v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
• Court: Georgia Court of Appeals

Page 485

196 S.E.2d 485

128 Ga.App. 285

Marvin L. BASS v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.

No. 47539.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Jan. 31, 1973.

Rehearing Denied Feb. 27, 1973.

Syllabus by the Court

1. Where an insured owns two automobiles on which he carries separate policies of liability insurance, regardless of whether the policies are issued by a single company or by two different companies, a policy containing a paid up endorsement covering the insured up to a $10,000 limit for bodily injury sustained due to the negligence of an uninsured motorist entitles the insured to collect thereon up to the policy limit. The coverage of the named insured is extended to him, so far as bodily injury is concerned, whether he is occupying the insured automobile or another automobile or no automobile, and whether he is a driver or passenger. The existence and the coverage afforded by any other policy of insurance is immaterial so far as the existent policy is concerned.

2. Where the defendant raises multiple defenses, all of which have been adjudicated in this state contrary to its contentions, and most of which have been adjudicated in cases where the insurer was the named defendant, a jury question is raised as to bad faith under which penalty and attorney fees may be awarded.

The appellant Bass owned two automobiles, a Pontiac and a Plymouth. State Farm, the insurer, had issued a separate liability policy on each, and on each the appellant had in writing rejected uninsured motorist insurance. Thereafter, the Pontiac policy came up for renewal, at which time the insurer sent him a premium notice including a proposed uninsured motorist endorsement, pointing out that the premium included this coverage, but that if the insured did not wish to have it he should so notify the insurer and should delete the designated premium payment for this coverage. Bass kept the endorsement and paid the full premium, thus effecting coverage on the Pontiac. Thereafter, he had a collision with an uninsured motorist while driving the Plymouth. The insurer refused to pay the judgment for damages for bodily injury on the ground of lack of coverage; Bass sued, and the defendant's motion for judgment on the pleadings was granted.

Lanier, Powell, Cooper & Cooper, Jack L. Cooper, Augusta, for appellant.

Burnside, Dye & Miller, A. Montague Miller, Augusta, for appellee.

DEEN, Judge.

1. There is no dispute as to the facts of this case. We are asked to decide whether Bass had uninsured motorist coverage as to bodily injury to himself, and, if so, whether a jury question is presented as to sums sought as penalty and attorney fees for bad faith. The parties agree that the insurer stands on three and only three defenses as follows: (1) Uninsured motorist coverage written as a part of the policy of insurance naming the 1966 Pontiac did not cover the appellant while the appellant was driving the 1953 Plymouth in which the accident occurred; (2) The rejection of uninsured motorist coverage in the application for insurance on the 1953 Plymouth prevented the uninsured motorist endorsement written on the 1966 Pontiac from applying to the appellant while the appellant was driving the 1953 Plymouth; (3) The uninsured motorist endorsement on the Pontiac policy contained an exclusionary clause making this coverage inapplicable while the insured was driving the Plymouth. We examine each of these contentions in turn.

That the named insured must be driving the vehicle described in the policy. This question has already been decided contrary to the defendant's contentions. First of all, the endorsement clearly defines an 'insured' as (1) the first person named in the declarations (i.e., the plaintiff) and while residents of his household, his spouse and the relatives of either; and (2) any other person while occupying an insured automobile. The covering agreement is 'to pay all sums which the insured . . . shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle' because of bodily injury (a) to the insured or (b) to an owned motor vehicle 'to which the liability coverage of the policy applies.' Thus, property damage recovery is limited to the designated vehicle in the policy; bodily injury recovery is limited to an insured, and insured means the named insured, his spouse and relatives while residing with him regardless of whether or not they are in a vehicle, and, if so, what vehicle they are in, but other persons are insured only while in the vehicle described in the policy declaration. This has been unequivocally held in a number of cases. 'The coverage applies not only to the owner of an insured automobile, but to his spouse and relatives of either if they live in his household. It covers them while riding in the insured car, in any other automobile, or while pedestrians if the injury is caused by an uninsured motorist.' Gulf American Fire & Casualty Co. v. McNeal, 115 Ga.App. 286, 290, 154 S.E.2d 411, 416. Since under Code Ann. § 56-407.1, no automobile liability insurance policy shall be issued (unless rejected in writing) which does not undertake to pay the insured for bodily injury which results from the fault of an uninsured motorist, any policy provision conflicting with this requirement is void. Travelers Indemnity Co. v. Williams, 119 Ga.App. 414, 167 S.E.2d 174 (holding that the insured was covered while a passenger in another car, also covered, and was entitled to stack coverage to the extent of his loss or the combined policy limits, whichever was less). The same result was reached in State Farm Mutual Automobile Ins. Co. v. Murphy, 226 Ga. 710, 177 S.E.2d 257, a case in which this defendant was also the insurer and where it litigated coverage of an insured under its policy killed by an uninsured motorist while riding in a vehicle not named in the policy. It follows that State Farm had actual knowledge at the time it filed the first of the above defenses that Georgia had decided the question, in a case where it was the named defendant, in a manner contrary to its contentions.

That the insured had rejected uninsured motorist insurance on the Plymouth. This defense would be good in law if the defendant were insuring only the automobile, but as it happens it is also insuring the person of the named insured, wherever he may be. When one rejects coverage as to an automobile named in the declaration, he has no right to any coverage under that policy. If he has another policy which does contain uninsured motorist insurance, he as the named insured is covered wherever he is, whether in that car, another car, or no car. But the uninsured car is not covered, and certain classes of persons are not covered unless they are in an insured vehicle. If a vehicle is not covered, no benefits under the liability policy of that vehicle exist so far as uninsured motorist insurance is concerned, but that is the end of the matter. If there is another policy, and other coverage, such policy will be construed according to its own provisions, unaffected by the existence or nonexistence of an unrelated policy of insurance. If two policies exist they may be stacked. State Farm v. Murphy, supra. If only one exists, it is applicable without regard to the other. In Gulf American Fire & Cas. Co. v. McNeal, supra, the plaintiff, covered by uninsured motorist insurance on one of his owned vehicles, sustained an otherwise compensable injury while driving another owned vehicle, and the defense was that 'said policy did not provide uninsured motorists protection in connection with' the car he was operating. The court specifically ruled that this defense was untenable: 'The effect of the restriction contained in the endorsement limiting the uninsured motorists coverage to 'Car #3 only' was merely to exclude Car No. 1 and Car No. 2 from the policy definition of 'insured automobile' under the uninsured motorists coverage, so that this coverage would be afforded to other persons only while occupying car No. 3' but the insured was covered as such regardless of whether he was driving an owned insured automobile or an owned uninsured automobile. This being the case, and hinging upon the common-sense conclusion that to determine coverage one looks to the provisions of the policy in effect (not to the existence or nonexistence of some other policy), if there is a policy, and if it covers the insured wherever he may be, it is irrelevant that he owns another car which he is occupying and which does not have such coverage. It is also irrelevant, if the car has no coverage, whether the reason is that at the time the policy was issued the law requiring uninsured motorist coverage had not come into effect, or whether it was in effect, but the insured had elected to reject the coverage. The rejection of coverage under one policy does not work a forfeiture or estoppel as to coverage which exists under another valid policy. The defendant puts forth no argument, and we can find none, which would determine the efficacy of existing coverage by the reason for failing to have other and different policies of insurance on other property. The fact of coverage having already been adjudicated is controlling as against this contention.

The proviso in Code Ann. § 56-407.1(a) that an insured may reject coverage in writing and that, if he does so, coverage need not be provided unless thereafter requested in writing, obviously had no application where, after the rejection, the insurer again offers the coverage and the insured accepts the offer according to its tenor by retaining the endorsement and paying the increased premium charged for the uninsured motorist coverage. To hold otherwise would be to hold that there was no coverage at all regardless of the payment and acceptance of premium. To reiterate: When the insured paid for the Pontiac renewal he was entitled to such coverage as it afforded. Since no claim...