Billups v. Alabama Farm Bureau Mut. Cas. Ins. Co.

• Decision Date: 30 September 1977
• Citation: 352 So.2d 1097
• Parties: Joyce BILLUPS et al. v. ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY, a corporation, et al. SC 2159.
• Court: Alabama Supreme Court

Page 1097

352 So.2d 1097

Joyce BILLUPS et al. v. ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY, a corporation, et al.

SC 2159.

Supreme Court of Alabama.

Sept. 30, 1977.

Rehearing Denied Dec. 22, 1977.

Jack Clarke, of Henley & Clarke, Northport, for appellants.

Olin W. Zeanah and William J. Donald, III, of Zeanah, Donald & Hust, Tuscaloosa, for appellees.

ALMON, Justice.

Alabama Farm Bureau Mutual Casualty Insurance Company and Federated Guaranty Mutual Insurance Company, appellees, brought this action seeking a declaratory judgment to determine their obligations to pay benefits to any of the appellants. From the trial court decree denying medical payments coverage and uninsured motorist coverage, appellants take this appeal.

The facts of this case arise out of an automobile accident on February 8, 1975, in Jefferson County, Alabama. The accident involved a 1970 Plymouth automobile, owned by Lucille Conner and driven by Jessie Silver, Jr., and an automobile driven by Henry Lee Moore, an uninsured motorist. In the 1970 Plymouth with Jessie Silver, Jr., were Debbie Billups, Joyce Billups, Melanie Carol Billups, and Curtis Conner, son of Lucille Conner. As a result of the accident, Jessie Silver, Jr., and Debbie Billups were killed. The other occupants received varying degrees of injuries.

At the time of the accident there was in force and effect on the 1970 Plymouth automobile a policy of liability insurance issued by Federated Guaranty to Lucille Conner as the named insured. At the same time there was in force and effect a policy of insurance issued by Alabama Farm Bureau to Lucille Conner as the named insured on a 1973 Chevrolet Impala automobile. The issue in this case is whether Joyce Billups, Melanie Carol Billups, the estate of Debbie Billups, and the estate of Jessie Silver, Jr., are entitled to medical coverage and uninsured motorist coverage under either of the automobile liability policies issued to Lucille Conner. The coverage of Curtis Conner under the policies is not at issue.

The two policies in question are identical except for the automobile covered. The relevant provisions are as follows:

"INSURING AGREEMENT I THE AUTOMOBILE

"Coverage C Medical Payments

"To pay the reasonable expense of necessary medical, dental, x-ray, eyeglasses, hearing aids, surgical, ambulance, hospital, professional nursing, funeral services and prosthetic devices, all incurred within one year from date of accident to or for:

"(Division 1) each person who sustains bodily injury, sickness or a disease caused by accident while occupying:

"(a) the automobile described in the declarations, if the injury arises out of the use thereof by the named insured or spouse if a resident of the same household, or with the express permission of either. (emphasis added).

"(Division 2) each insured who sustains bodily injury, sickness or disease caused by accident, while in or upon, or while entering into or alighting from, or through being struck by, an automobile.

"(Division 3) Any person occupying the described automobile who sustains bodily injury caused by accident, if such vehicle is being used by an insured; * * *.

"DEFINITIONS INSURING AGREEMENTS I AND II

"Insured under Coverages A, B, C, C-1, and C-2, the unqualified word 'insured' includes (1) the named insured, and also includes (2) his relatives, (3) any other person while using the automobile, provided the actual use of the automobile is with the express permission of the named insured, and (4) under Coverages A and B any person or organization legally responsible for the use thereof by an insured as defined under the three subsections above. (emphasis added).

"Use means the actual manual and physical driving of the automobile (emphasis added).

"INSURING AGREEMENT III UNINSURED MOTORIST

"Coverage M Damages for Bodily Injury Caused by Uninsured Automobiles.

"The Company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages except punitive damages (other than for death) from the owner or operator of an uninsured automobile * * *.

"DEFINITIONS INSURING AGREEMENT III

"The definitions of 'Automobile, Temporary Substitute Automobile, Bodily Injury and Use ' under Insuring Agreements I and II apply to Insuring Agreement III.

"(a) Insured. The unqualified word 'Insured' means

"(1) the First Named Insured as stated in the policy and residents of the same household, the spouse of any such Named Insured and relative of either;

"(2) any other person while occupying an insured automobile.

"(b) Insured Automobile

"but the term 'insured automobile' shall not include:

"(ii) under subparagraphs (1) and (2) above, if the insured named in the declarations of the policy is an individual or husband and wife who are residents of the same household, an automobile unless being used by or with the express permission of such Named Insured or such spouse; (emphasis added).

* * * * * "

I UNINSURED MOTORIST COVERAGE

The court found that the 1970 Plymouth automobile was not used with the express permission of the named insured, Lucille Conner, or her spouse, and that the appellants were not entitled to uninsured motorist coverage under the Conner policies.

The appellants contend that the express permission provision of the policies conflicts with the Alabama Motor Vehicle Safety-Responsibility Act ¹ and is therefore void. We agree insofar as it pertains to uninsured motorist coverage.

Tit. 36, § 74(62) (mandatory liability coverage) provides in part as follows:

"(a) A 'motor vehicle liability policy' as said term is used in this subdivision shall mean an owner's or an operator's policy of liability insurance, certified as provided . . . as proof of financial responsibility, and issued . . . by an insurance carrier . . . to or for the benefit of the person named therein as insured.

"(b) Such owner's policy of liability insurance:

"(2) shall insure the person named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of such motor vehicle . . . ." (Emphasis added).

Tit. 36, § 74(62a) (uninsured motorist coverage) provides in part as follows:

"No automobile liability . . . policy . . . shall be delivered or issued . . . in this state . . . unless coverage is provided therein . . . for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles . . . ."

The question is the effect the statutory provisions have upon the scope of the uninsured motorist coverage under the policy. This court has held that the scope of uninsured motorist coverage must be coextensive with liability coverage. State Farm Automobile Insurance Co. v. Reaves, 292 Ala. 218, 292 So.2d 95 (1974). In Reaves, supra, we stated that, "once an automobile liability policy is issued extending coverage to a certain class of insureds under such a clause, uninsured motorist coverage must be offered to cover the same class of insureds." 292 Ala. at 223, 292 So.2d at 99.

§ 74(62) is unambiguous in mandating the extension of liability insurance coverage to persons using an insured vehicle with the express or implied permission of the named insured. Accordingly, the uninsured motorist coverage must be as broad. Reaves, supra.

The insurance policies in question extend uninsured motorist coverage to "any other person while occupying an insured automobile." See, Definitions Insuring Agreement III, supra. Under the policy terms, an insured automobile is one used with the express permission of the named insured or his spouse. See, Definitions Insuring Agreement III, supra.

Restricting uninsured motorist coverage to occupants of an automobile only if the automobile is used with the express permission of the named insured is repugnant to the statutory requirements and the decisions of this court. Reading the statutory requirement into the policy, American Southern Insurance Co. v. Dime Taxi Service, Inc., 275 Ala. 51, 151 So.2d 783 (1963), the policy must afford uninsured motorist coverage to the occupants of the automobile if it was used with the express or implied permission of the named insured. Tit. 36, § 74(62); State Farm Automobile Ins. Co. v. Reaves, supra.

The trial court did not make a factual finding as to whether Jessie Silver, Jr., used the automobile with Lucille Conner's or her husband's implied permission. Therefore, we remand to the trial court for such a determination.

The appellees reliance on past cases of this court upholding the express permission provisions contained in the policies in question, Alabama Farm Bureau Mutual Cas. Ins. Co. v. Government Employees Ins. Co., 286 Ala. 414, 240 So.2d 664 (1970); Alabama Farm Bureau Mutual Cas. Ins. Co. v. Mattison, 286 Ala. 541, 243 So.2d 490 (1970); Crawley v. Alabama Farm Bureau Mutual Cas. Ins. Co., 295 Ala. 226, 326 So.2d 718 (1976), is without merit. In none of the mentioned cases was there a challenge to the express permission provision in the policies on the ground that it conflicted with the Alabama Motor Vehicle Safety-Responsibility Act. Each case was decided on terms of policy language construction alone. To the extent that these cases construe the meaning and effect of a valid express permission provision, they remain good law. However, future cases involving the scope of uninsured motorist coverage must be read in light of the Alabama Motor Vehicle Safety-Responsibility Act and today's decision.

II MEDICAL COVERAGE

Our decision regarding the uninsured motorist coverage required by our statutes is not dispositive of whether the appellants are entitled to medical payments coverage under the policies in question. The Alabama Motor Vehicle Safety-Responsibility Act mandates automobile liability and uninsured...