Bearden v. Rucker

• Decision Date: 02 September 1983
• Docket Number: No. 82-C-2506,82-C-2506
• Citation: 437 So.2d 1116
• Parties: Derry Lynn BEARDEN, Individually, and as Natural Tutrix of her minor son Ricky Bearden and Polly Christian v. Joseph RUCKER, Cavalier Insurance Company and Gulf Insurance Company.
• Court: Louisiana Supreme Court

Page 1116

437 So.2d 1116

Derry Lynn BEARDEN, Individually, and as Natural Tutrix of

her minor son Ricky Bearden and Polly Christian v. Joseph RUCKER, Cavalier Insurance Company and Gulf Insurance Company.

No. 82-C-2506.

Supreme Court of Louisiana.

Sept. 2, 1983.

Roy Maughan, Elliott W. Atkinson, Maughan & Atkinson, Ltd., Baton Rouge, for applicants.

John Swanner, Seale, Smith & Phelps, Henry D. Salassi, Jr., Breazeale, Sachse & Wilson, Baton Rouge, for respondents.

CALOGERO, Justice.

A married woman living separate and apart from her husband, and the son and mother with whom the woman shared an apartment, were injured in an automobile accident while guest passengers in a non-owned automobile. The question presented in this review is whether there was applicable, at the time of the accident, the uninsured motorist coverage provided in a "Family Combination Automobile Policy" issued in the name of the woman's husband, on a community owned vehicle which, to the knowledge of the insurance agent who issued the policy, was in the woman's exclusive custody for her use.

Derry Lynn Bearden, her son Ricky Bearden, and her mother Polly Christian, were injured in an automobile accident on September 25, 1976. The three were passengers in an automobile owned by Exxon Corporation and driven by its employee, David Peters. These plaintiffs were injured when one of the defendants in the lawsuit, one Joseph Rucker, failed to stop, notwithstanding that he was confronted by a stop sign and flashing red light. Rucker's vehicle struck the vehicle in which the plaintiffs were riding. Plaintiffs filed this suit to recover damages for the injuries they sustained in the accident. Named as defendants in the suit, besides Rucker, were Cavalier Insurance Company (Rucker's insurer), the host driver David Peters, Fireman's Fund Insurance Company (as Peters' personal insurer and also as Exxon's insurer ¹), and Gulf Insurance Company (the uninsured motorist carrier on the policy issued in the name of Lloyd Bearden, the husband of Derry Lynn Bearden).

After trial on the merits, the district court made the following findings. The court held that the accident was caused solely by the negligence of Rucker and that, consequently, both Rucker and his liability insurer, Cavalier, were liable to plaintiffs. Since the host driver Peters was found not to have been at fault, the trial court held that neither Peters' personal liability insurer nor Exxon's liability insurer were liable to plaintiffs. However, the trial court held that plaintiffs were covered under the uninsured motorist provisions of Peters' personal insurance policy, upon finding that under that policy and its definitions the Exxon vehicle was an "insured automobile". ² Finally, the trial court held that plaintiffs were not covered under the uninsured motorist provisions of the Gulf policy issued to Lloyd Bearden, as plaintiffs were not "residents of [his] household" at the time of the accident.

Damages were calculated in favor of plaintiffs collectively at $71,763.35 ³ against defendants Rucker, Cavalier and Fireman's (the latter insurance company as Peters' UM insurer), but only to the extent of the insurers' policy limits (Cavalier's $10,000.00 liability limit and Fireman's $20,000.00 uninsured limits). However, upon defendant Rucker's filing a motion for a new trial (apparently upon receipt of reasons but prior to entry of any judgment) in which he sought a reduction in damages because of his inability to pay the part of the damages not covered by insurance, ⁴ the trial court reduced the originally calculated damages of $71,763.35 and awarded judgments totaling $35,000.00 ⁵ (only $30,000.00 of which was covered by the defendant insurers' policy limits). From this judgment, plaintiffs appealed.

On appeal plaintiffs argued that the trial court erred in not finding Peters negligent and in thus not rendering judgment against Fireman's as Peters' personal liability insurer. They also argued that the court erred in failing to find that the plaintiffs were covered by the uninsured motorist policy issued by Gulf to Lloyd Bearden. And finally, they argued that the trial court erred in reducing the judgment because of defendant Rucker's insolvency. Rucker answered the appeal requesting a further reduction in the award because of his impecunious circumstances. The Court of Appeal, 418 So.2d 713, found no merit in any of the parties' contentions and affirmed the trial court judgment. ⁶

As earlier indicated, we granted plaintiffs' writ application primarily to consider whether Lloyd Bearden's wife, Derry Lynn, Derry Lynn's mother Polly Christian, and the couple's son, Ricky Bearden, were covered by the uninsured motorist provisions of the Gulf policy issued in the name of Lloyd Bearden. ⁷

Lloyd Bearden and Derry Lynn Bearden were married sometime prior to 1962. They lived together as man and wife for a number of years before 1976 and had three children. The oldest child was 14 years of age at the time of the accident (September, 1976) and the youngest was 9 years of age at that time. Prior to 1976 they were living together in a home which they purchased on West Darryl Parkway in Baton Rouge, Louisiana. They owned two automobiles at that time, one of which was a 1969 Chevrolet Impala. Both vehicles were listed on a "Family Combination Automobile Policy" with Gulf, issued in the name of Lloyd Benton Bearden. In January of 1976, because of marital difficulties, Ms. Bearden moved out of the marital domicile and into an apartment on Sharp Road in Baton Rouge. Her youngest son, Ricky, moved with her, and her mother also moved into the apartment with the two of them. Ms. Bearden took the 1969 Impala with her when she moved, and was thereafter the sole custodian and user of the car. On or about April 27, 1976, the Gulf policy came up for renewal. It was renewed then, with the 1969 Impala listed on the policy. This was done with the knowledge on the part of Gulf's agent that the car was in Ms. Bearden's possession and that she was not then living with her husband, Mr. Bearden.

Six weeks later on (June 9, 1976) upon Mr. Bearden's petition, a judgment of separation from bed and board was obtained. Custody of the youngest child, Ricky, was granted to Ms. Bearden and custody of the two older children was granted to Mr. Bearden. No community property settlement was made. The parties continued to owe debts and own property jointly. The couple continued to live separately.

Thereafter, on September 25, 1976 the accident which gave rise to this lawsuit occurred.

Whether these plaintiffs may recover from Gulf is governed by Ms. Bearden's status under the policy, that is, whether she qualifies as a "named insured" within the meaning of the policy definition.

In order to decide this fundamental question, it is necessary for us to examine certain terms in the policy. We do so "in accordance with the settled principle that ambiguity in an instrument is resolved against the draftsman." Bond v. Commercial Union Assur. Co., 407 So.2d 401 (La.1981), on Rehearing.

The policy issued to Lloyd Bearden contains the following provision:

PART IV--FAMILY PROTECTION COVERAGE

Coverage J--Family Protection (Damages for Bodily Injury): To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages 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 purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration. (Emphasis provided.)

The term "insured" is defined in this Part of the policy as follows:

"insured" means:

(a) the named insured and any relative (b) any other person while occupying an insured automobile; and

(c) any person, with respect to damages he is entitled to recover because of bodily injury to which this Part applies sustained by an insured under (a) or (b) above. (Emphasis provided.)

A "named insured" is defined as "the individual named in Item 1 of the declarations [in this case Lloyd Bearden] and also includes his spouse, if a resident of the same household."

"Relative" is defined in the policy as "a relative of the named insured who is a resident of the same household."

Thus, if it is determined that Ms. Bearden was, at the time of the accident, "a resident of the same household" as her husband, as that phrase is used in the policy, she is a "named insured" under the policy and covered by the uninsured motorist provisions therein.

The phrase "resident of the same household," as used in insurance policies, has been variously described by the courts of this state as having "no absolute or precise meaning," Bond v. Commercial Union Assur. Co., supra, and as having "no specific meaning as to place or time when a party would qualify for insurance coverage ... [and], therefore, uncertain and equivocal in phraseology." Hobbs v. Fireman's Fund Am. Ins. Companies, 339 So.2d 28 (La.App. 3rd Cir.1977), writs refused 341 So.2d 896 (La.1976). The courts of other jurisdictions have found the phrase to be "an ambiguous, elastic, or relative" one. Mathis v. Employers' Fire Ins. Co., 399 So.2d 273 (Ala.1981).

In Mathis v. Employers' Fire Ins. Co., supra, the court observed:

"The word 'resident' is in common usage, and many definitions of it are to be found in the decisions. It is, nevertheless, difficult to give an exact, or even a satisfactory, definition, for the term is flexible, elastic, slippery and somewhat ambiguous.

"Resident" has no technical meaning, and no...