Bates v. United Sec. Ins. Co.

• Decision Date: 10 December 1968
• Docket Number: No. 53188,53188
• Citation: 163 N.W.2d 390,33 A.L.R.3d 950
• Parties: Arnold E. BATES, Appellant, v. UNITED SECURITY INSURANCE COMPANY, Appellee.
• Court: Iowa Supreme Court

Page 390

163 N.W.2d 390

33 A.L.R.3d 950

Arnold E. BATES, Appellant, v. UNITED SECURITY INSURANCE COMPANY, Appellee.

No. 53188.

Supreme Court of Iowa.

Dec. 10, 1968.

Robert G. Bridges, Des Moines, for appellant.

A. Roger Witke, Des Moines, for appellee.

MASON, Justice.

Defendant United Security Insurance Company issued its family automobile policy to plaintiff Arnold E. Bates as the named insured. In this law action tried to the court he sought recovery under the medical payment section of his policy for expenses incurred in treating bodily injuries sustained in an automobile accident May 13, 1966.

Plaintiff appeals from denial of his claim.

I. All relevant facts were stipulated. Plaintiff was injured in an automobiletruck accident on Interstate 80 when a truck owned by Colonial Baking Company and driven by plaintiff in the course of his employment as a truck driver or route salesman for Colonial was struck from the rear by an approaching automobile. The truck was furnished by the baking company for plaintiff's regular use, not as a temporary substitute automobile. As a result of the accident Bates incurred necessary medical expenses of $1221.04.

The issue is whether plaintiff is entitled to recover these expenses under Part II of his policy. Defendant denied payment, contending no coverage was extended by the policy.

The policy provides inter alia:

'Part II--Expenses for Medical Services

'Coverage C--Medical Payments: To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, X-ray * * * and necessary ambulance, hospital, professional nursing * * * services:

'Division 1. To or for the named insured * * * who sustains bodily injury * * * hereinafter called 'bodily injury', caused by accident, (a) while occupying the owned automobile, (b) while occupying a non-owned automobile, but only if such person has, or reasonably believes he has, the permission of the owner to use the automobile and the use is within the scope of such permission, or (c) through being struck by an automobile * * *'

The trial court held plaintiff did not sustain bodily injury 'through being struck by an automobile' within Part II, Coverage C, Division 1, paragraph (c) of the policy when this paragraph is considered in context of the entire Part II and that the policy language in question is not ambiguous.

A determination of the issue first involves interpretation of the policy language 'struck by an automobile' in the medical payment section.

II. Plaintiff asserts the court erred (1) in holding he did not sustain bodily injury 'through being struck by an automobile' within the meaning and intent of paragraph (c), supra, and (2) in holding as a matter of law the policy language under coverage (c) is not ambiguous on the question of whether coverage is extended to plaintiff.

Plaintiff argues the court's ruling is contrary to the plain meaning of the policy, other jurisdictions faced with similar language for interpretation on similar facts have almost universally allowed recovery, holding there is no need for physical contact between the striking automobile and the insured. We consider later the decisions he cites.

Defendant, on the other hand, maintains a reasonable construction of the policy which gives effect to all its provisions and corresponds to the intent of the parties as therein reflected is that subparagraph (c) applies to situations when the insured is not occupying an automobile. It further contends a construction of the policy which interprets subparagraph (c), 'through being struck by an automobile * * *,' as extending coverage to an insured while driving a non-covered vehicle that is neither 'owned' nor 'non-owned' within the expressed definitions of the policy does violence to the intention of the parties and virtually renders meaningless subparagraphs (a) and (b) of Division 1, Coverage C, Part II of the policy.

Stated otherwise, defendant contends if coverage is extended to plaintiff it would in effect give him coverage not only in an owned and a non-owned vehicle as those terms are defined in the policy but also separate and distinct coverage while occupying a vehicle not within either category merely by purchasing coverage on two classifications.

III. Except in determining the legal consequences of the policy we do not review the case de novo but only on errors assigned. Rule 334, Rules of Civil Procedure.

It is clear there was no physical touching of plaintiff by the vehicle which collided with the one he was operating.

We consider first plaintiff's contention he was 'struck by an automobile' and the cases he cites to support it. He asserts a person in a vehicle into which another vehicle crashes and injures him has been 'struck' by the other vehicle and he qualifies for benefits under a policy covering injuries received 'by being struck by an automobile'. Plaintiff says it is not necessary the insured actually come in physical contact with the colliding vehicle.

Plaintiff relies heavily upon Carson v. Nationwide Mutual Insurance Company, Ohio Com.Pl., 84 Ohio Law Abst. 378, 169 N.E.2d 506. Although from an intermediate court, it has been cited and extensively quoted from with approval by the same court and others. It was a law action, under the medical payment provisions of an automobile policy issued him by defendant, to recover medical and hospital expenses resulting from injuries as the result of an accident when plaintiff's farm tractor was struck by a land motor vehicle while he was operating the tractor on a public highway. There was no physical touching of plaintiff's person by the vehicle which struck the tractor.

In a declaration attached to the policy plaintiff was identified as the policy holder and the auto specifically covered as insured was a Buick station wagon. The insurer denied liability and the matter was tried to the court without a jury on stipulated facts. We quote from the opinion:

'The pertinent provisions of the policy * * * are to be found on page 1 of the policy under 'Insuring Agreements' subtitled 'Coverages'. Subsection D(2) of the 'Coverages' provides for payment of all reasonable expenses incurred within one year following an accident to the policyholder whose injury was sustained:

'(a) by being struck by a land motor vehicle or trailer, Or

'(b) while in or upon, entering or alighting from any other land motor vehicle or trailer Except one owned by the Policyholder or a member of his household * * *'

'Plaintiff claims he is entitled to recover under above sub-paragraph (a) since the injuries resulted, he contends, from his being 'struck by a land vehicle or trailer.'

'Defendant contends that sub-paragraph (b) specifically denies recovery if the injuries were sustained while in a land motor vehicle, if such vehicle is one owned by the policyholder. The defendant further contends that plaintiff was Not 'struck by a land motor vehicle or trailer' as claimed and as that expression appears in sub-paragraph (a) Because there was No physical touching between the person of the plaintiff and the vehicle which collided with the one in which he was then riding.

'The decision in this case therefore rests upon the interpretation and meaning of the language 'by being struck by a land motor vehicle or trailer' and the effect, if any, of sub-paragraph (b) of the policy which limits recovery under that sub-paragraph to injuries received while in or upon or operating a vehicle Other than one owned by policyholder or by a member of his household.

'The first question to be considered is whether or not within the context of this policy a person is 'struck by a land motor vehicle' when the vehicle which he is then operating or on which he is riding is involved in a collision with another vehicle and such person receives injuries admittedly resulting from such accident, even though there has been no physical touching between the person injured and the vehicle which collided with the one in which he was riding or which he was operating.

'* * *

'Webster's New International Dictionary devotes three full columns to the varied definitions and meanings of the word 'strike' and they include the words and phrases 'to hit', 'dash', 'clash' or 'to come in collision with'.

'* * *

'A pedestrian who walks with the assistance of a cane, thrown to the ground when a vehicle strikes his cane from his hands without actually touching his person, causing him to be injured; two pedestrians walking side by side Only one of whom, however, is physically brushed by a passing vehicle causing them Both to be thrown to the ground and injured; a person seated in a swing or on a hammock, on a lawn, off the street, thrown into the air by a vehicle out-of-control, crashing into the swing or hammock but not actually touching the person of the injured; a person riding on a bicycle or motorcycle, having it hurled from under him by a passing vehicle without actually touching his person; the rear-end collisions which are a daily occurrence on our city streets, and frequently happen when a vehicle stops at an intersection for a red light and while stopped is struck by a vehicle from behind, causing injury to the operator or passenger of the stationary vehicle.

'To hold as the defendant insists, that in none of these instances was the person injured 'struck by' the offending vehicle, merely because there was no physical touching of the person injured by said vehicle, would seem to be novel, unwarranted and without justification, taking into account the common and ordinary meaning of these words and phrases which are not obscure or ambiguous and which in ordinary usage, in the opinion of this Court, are commonly understood to mean the contrary.

'* * *

'Thus, the inescapable conclusion is reached that the reasonable and ordinary meaning of the words 'struck by', not elsewhere or otherwise in the policy restricted or limited, must be given and applied...