Butler v. MFA Mut. Ins. Co.

• Decision Date: 20 February 1978
• Docket Number: No. 13494,13494
• Citation: 356 So.2d 1129
• Parties: Warren L. BUTLER, Plaintiff-Appellant, v. MFA MUTUAL INSURANCE COMPANY et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 1129

356 So.2d 1129

Warren L. BUTLER, Plaintiff-Appellant, v. MFA MUTUAL INSURANCE COMPANY et al., Defendants-Appellees.

No. 13494.

Court of Appeal of Louisiana, Second Circuit.

Feb. 20, 1978.

En Banc. Rehearing Denied April 4, 1978.

Writ Refused May 12, 1978.

Skeels, Baker & Coleman by Ben E. Coleman, Shreveport, for Warren L. Butler, plaintiff-appellant.

Mayer, Smith & Roberts by Caldwell Roberts, Shreveport, for Government Employees Ins. Co., defendant-appellee.

Before PRICE, HALL and MARVIN, JJ.

PRICE, Judge.

This appeal arises out of a multiplicity of consolidated actions resulting from a three-car collision in which five persons were killed and one seriously injured. Two of the cars, referred to as the Barnett and Collins vehicles, were racing on the Pinehill Road in Caddo Parish after dark, and as Barnett was attempting to pass Collins on the crest of a hill, the Barnett car collided head-on with a third vehicle proceeding in the opposite direction.

Plaintiff, Warren L. Butler, whose sixteen-year-old daughter, Sabrina, was a passenger in the Barnett vehicle, brought suit for damages for her death against the owners of the Barnett and Collins automobiles and their liability insurers. Plaintiff also sued his insurer, Government Employees Insurance Company, under the uninsured motorist provisions of the liability policy covering two automobiles owned by him.

The suit was consolidated with four other actions relating to the same accident, and after trial, judgment was rendered in plaintiff's favor for $16,900.75 against the owners of the Barnett and Collins vehicles and their liability insurers. Because the awards for the multiple plaintiffs exceeded the total liability insurance on the Barnett and Collins vehicles, the court prorated the proceeds resulting in plaintiff receiving a recovery of $6,004.57. Plaintiff's demands against his insurer, GEI Co., for the balance of his damage under the uninsured motorist coverage were rejected on a finding that Sabrina was not an insured under the policy definition.

Plaintiff has appealed from the judgment denying his claim against GEI Co., and this is the only matter before us for review. For the reasons discussed herein we reverse and award judgment for plaintiff.

There are three defenses raised by GEI Co. to plaintiff's action against it:

1) Sabrina Butler is alleged to have been guilty of contributory negligence or to have assumed the risk of harm by failing to protest to the driver of the Barnett vehicle concerning the manner of his driving.

2) GEI Co. contends that since custody of Sabrina was awarded to her mother after a divorce from plaintiff, she is not covered under the uninsured motorist provision of her father's insurance policy as the policy definition of this term only includes a spouse or relative "while residents of the same household."

3) GEI Co. also contends the Barnett and Collins automobiles were not "uninsured motor vehicles" within the purview of the uninsured motorist statute in effect at the time the policy of insurance was issued.

CONTRIBUTORY NEGLIGENCE AND ASSUMPTION OF THE RISK

The trial judge found no negligence on the part of any of the passengers in the Barnett vehicle. The burden is on defendant to show that plaintiff's daughter had an opportunity to make an effective protest which would have prevented the accident. The evidence is insufficient to carry this burden to support either a plea of contributory negligence or assumption of the risk. A very short period elapsed from the time the two drivers met and accelerated to a high rate of speed until the accident occurred. The trial court correctly rejected these defenses.

WAS SABRINA AN INSURED UNDER THE POLICY?

Plaintiff and his wife were divorced out of state in 1964, and the custody of Sabrina and her sister was awarded to the wife. Plaintiff thereafter moved to Shreveport and bought a home at 1105 Englemead Street and moved his divorced wife and children into this residence. He rented a room at another address and allowed his family to have full use of his property. He paid the mortgage payments, personally maintained the yard, and occasionally stayed overnight with the children when his former wife was out of town. He also furnished Sabrina and another daughter a Volkswagen automobile to drive which was kept at the Englemead address. The Volkswagen and a Pontiac used by plaintiff are the two vehicles insured by GEI Co. under a family automobile policy with liability coverage of $50,000/$100,000, and uninsured motorist coverage on each vehicle of $5,000/$10,000.

GEI Co. contends the policy language precludes coverage of Sabrina because she was not "a resident of the same household" with plaintiff after her custody was awarded to her mother following the divorce. Defendant relies on the decisions in Ursin v. Oubre, 343 So.2d 1189 (La.App. 4th Cir. 1977), and Chapman v. Allstate Insurance Company, 306 So.2d 414 (La.App. 3rd Cir. 1975), which interpreted similar provisions of an automobile liability policy to deny coverage. These were cases where coverage on minor children was disputed by their father's insurer since the children were in the legal custody of the mother pursuant to a divorce or separation decree.

These cases are factually distinguishable from the instant situation. In Ursin and Chapman the child lived in a residence provided solely by the mother to whom custody had been awarded. The courts in Ursin and Chapman in construing the provision "a resident of the same household" to deny coverage gave emphasis to the "legal residence" of a minor following a custody award.

Here the subject child was residing in her father's home. The critical factor is whether plaintiff was also a resident of the same household. The evidence shows he exercised such dominion and control over the...