Bose v. American Family Mut. Ins. Co., 37617

• Citation: 186 Neb. 209,181 N.W.2d 839
• Decision Date: 11 December 1970
• Docket Number: No. 37617,37617
• Court: Supreme Court of Nebraska
• Parties: Herman BOSE, for Himself and as Next Friend of Lynn H. Bose, a Minor, Appellee, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, a Corporation, Appellant.

Page 839

181 N.W.2d 839

186 Neb. 209

Herman BOSE, for Himself and as Next Friend of Lynn H. Bose, a Minor, Appellee, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, a Corporation, Appellant.

No. 37617.

Supreme Court of Nebraska.

Dec. 11, 1970.

Syllabus by the Court

A clause embodied in an uninsured motorist insurance policy prorating liability is not enforceable in these circumstances: The adjudicated damages to the named insured and his dependent son equal or exceed the aggregate liability of two policies naming the same insured and issued by the same insurer for a separate premium on the coverage in each policy.

Chambers, Holland, Dudgeon & Beam Lincoln, for appellant.

Ginsburg, Rosenberg, Ginsburg & Krivosha, R. P. Cathcart, Bernard Wishnow, Lincoln, for appellee.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.

SMITH, Justice.

The question is whether under Nebraska law certain 'other insurance' clauses in uninsured motorist provisions of automobile policies are enforceable under the circumstances. The district court found in the negative, entering judgment of $20,000 for plaintiffs. Defendant appeals.

Defendant named plaintiff Herman Bose insured in two automobile policies with uninsured motorist liability coverage of $10,000 a policy. Each policy applied to a different one of the two family automobiles owned by Herman. The policies defined the insured to include the named insured and any relative. Defendant charged and collected a separate premium for the coverage in each policy.

Plaintiff Lynn Bose resided with his father, Herman, who had a legal duty to pay Lynn's costs of maintenance and medical care. While both insurance policies were in force and Lynn was operating one of Herman's family automobiles with permission on November 25, 1966, he collided with an 'uninsured automobile' operated by an uninsured motorist. As the result of bodily injury to Lynn in the collision, he and Herman were entitled to recover from the uninsured motorist damages of $20,000. The court found that Herman was damaged in the sum of $11,140.82, and Lynn, $8,859.18.

Defendant contends that its maximum liability is $10,000 because of clauses in both policies as follows:

'* * * if the insured has other similar insurance available to him, and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the company shall not be liable for a greater proportion of any loss to which this Uninsured Motorist Coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.

'Subject to the foregoing * * *, if the insured has other similar insurance available to him against a loss caused by the Uninsured Motorists Coverage of this policy, the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability herein bears to the total applicable limits of liability of all valid and collectible insurance against such loss.'

In determining enforceability, we consider public policy declared by the Legislature and reasonable expectations of the named insured. Shipley v. American Standard Ins. Co. of Wis., 183 Neb. 109, 158 N.W.2d 238 (1968); Stephens v. Allied Mut. Ins. Co., 182 Neb. 562, 156 N.W.2d 133 (1968).

Section 60--509.01, R.R.S.1943, provides: 'No policy insuring against loss resulting from liability imposed by law for bodily injury * * * suffered by any person...