Charley v. Farmers Mut. Ins. Co. of Nebraska

• Decision Date: 26 April 1985
• Docket Number: No. 84-013,84-013
• Parties: Margaret CHARLEY, Personal Representative of the Estate of Albert Charley, Appellant, v. FARMERS MUTUAL INSURANCE COMPANY OF NEBRASKA, Appellee.
• Court: Nebraska Supreme Court

Page 417

366 N.W.2d 417

219 Neb. 765

Margaret CHARLEY, Personal Representative of the Estate of Albert Charley, Appellant, v. FARMERS MUTUAL INSURANCE COMPANY OF NEBRASKA, Appellee.

No. 84-013.

Supreme Court of Nebraska.

April 26, 1985.

Syllabus by the Court

1. Insurance. Where there is a conflict between the typed and printed portions of an insurance policy, the typed portions control over the printed portions.

2. Insurance: Motor Vehicles. Neb.Rev.Stat. § 60-509.01 (Reissue 1984) neither requires nor prohibits the aggregation, or "stacking," of multiple uninsured motorist coverages.

3. Insurance: Motor Vehicles. Whether multiple uninsured motorist coverages are to be aggregated depends upon the policy language.

George H. Moyer, Jr., of Moyer, Moyer, Egley & Fullner, Madison, for appellant.

Noyes W. Rogers of Leininger, Grant, Rogers & Maul, Columbus, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

CAPORALE, Justice.

On September 19, 1980, Albert Charley was struck and killed by an uninsured motorist. His widow and personal representative, Margaret Charley, brought a contract action against Farmers Mutual Insurance Company of Nebraska, which, through a single automobile liability insurance policy issued to the Charleys, provided uninsured motorist coverage on each of the two automobiles owned by them. The jury found the death to have been the proximate result of the uninsured motorist's negligence and returned a verdict in favor of Margaret Charley for $125,000. She then moved for judgment on the verdict against Farmers Mutual for the aggregate amount of the uninsured motorist coverage on each of the two automobiles, $30,000, and a reasonable attorney fee. The trial court determined the two coverages could not be aggregated, or "stacked," and entered judgment in the maximum amount of the coverage on one automobile for the death of one person, $15,000, and an attorney fee of $11,818.30. We affirm.

The typed policy declarations state the limit of the uninsured motorist coverage on each of the two automobiles to be $15,000 for each person injured, up to a maximum of $30,000 for each occurrence. Farmers Mutual charged a separate premium of $9.10 for the combined uninsured motorist and bodily injury liability coverages on each of the two vehicles. The declarations also reflect that a "second car credit," or discount, was given with respect to each premium. The uninsured motorist agreement includes the following printed language:

The company's limit of liability shall not exceed $10,000 for all damages, including damages for care and loss of services arising out of bodily injury sustained by one person in any one accident and subject to this provision $20,000 for all such damages for bodily injury sustained by two or more persons in any one accident.

There is no dispute but that the limits of liability specified in the typed policy declarations control over the lesser limits printed in the foregoing policy provision. Neb.Rev.Stat. § 25-1216 (Reissue 1979); Spencer-O'Neill House, Inc. v. Denbeck, 196 Neb. 456, 243 N.W.2d 767 (1976).

At the relevant time Neb.Rev.Stat. § 60-509.01 (Reissue 1984) provided in pertinent part, as it does now:

No policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state ... unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in section 60-509, under provisions approved by the Director of Insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; Provided, that the named insured shall have the right to reject such coverage....

Neb.Rev.Stat. § 60-509 (Reissue 1978) then required liability coverage of not less than $15,000 for bodily injury to or the death of one person in any one accident and, subject to said limit for one person in any one accident, coverage of not less than $30,000 for bodily injury or death of two or more persons in any one accident.

We have been presented with several opportunities to interpret and apply § 60-509.01. In Stephens v. Allied Mut. Ins. Co., 182 Neb. 562, 156 N.W.2d 133 (1968), the insurer sought, among other things, to reduce its uninsured motorist coverage by setting off against that coverage the amount it had paid under the medical payments coverage of the policy. This court reasoned that the policy behind the statute was to give one injured by an uninsured motorist the same protection he would have had if injured by one covered by a standard automobile liability policy. Holding that the statute was to be liberally construed, the court unanimously concluded that the provision permitting the setoff was void and against public policy, as it would have the effect of reducing the minimum coverage of uninsured motorist protection required by the statute.

The court again looked at the statute in Protective Fire & Cas. Co. v. Woten, 186 Neb. 212, 181 N.W.2d 835 (1970). Therein, Protective Fire provided uninsured motorist coverage to Woten, who was injured by an uninsured motorist while a guest passenger in an automobile owned by one Turner. Turner's insurer paid the full extent of its uninsured motorist coverage, equal to the statutorily required minimum, to Woten, the value of whose injuries exceeded the amount of Turner's coverage. The Protective Fire policy provided that if Woten were injured while occupying a nonowned automobile, it would apply only as excess insurance over other available similar insurance and, further, that with respect to its uninsured motorist coverage, Protective Fire would not be liable for a greater proportion of the loss than the applicable limit its liability bore "to the total applicable limits of liability of all valid and collectible insurance against such loss." Id. at 214, 181 N.W.2d at 836. Among other arguments, Protective Fire urged that under the foregoing "excess-escape" clause it had no liability to Woten, as the payment by Turner's insurer had placed Woten in the same position as if he had been injured by one carrying the standard automobile liability policy. This court, one judge dissenting, rejected Protective Fire's argument and held that the excess-escape clause was prohibited by § 60-509.01, again characterizing the statute as an enactment for the benefit of the public and thus to be liberally construed. The dissenting judge pointed out that the result reached by the majority could be justified only if it were required by the language of § 60-509.01 but that in fact the statute made no such requirement.

Bose v. American Family Mut. Ins. Co., 186 Neb. 209, 181 N.W.2d 839 (1970), decided unanimously the same day as Protective Fire, supra, held that the uninsured motorist coverages contained in two separate policies issued by the same insurer, each covering a different vehicle owned by the same insured, could be aggregated. Both policies contained clauses which provided that in the event there was other similar insurance coverage, the insurer's liability under the subject policy would be prorated in accordance with the relationship the insurer's limit of coverage bore to the total insurance available. The court concluded that the proration clauses would "defeat the spirit" of § 60-509.01 and were therefore unenforceable, placing at least some reliance on the fact that a separate premium had been paid for the uninsured motorist coverage embodied in each policy.

In Pettid v. Edwards, 195 Neb. 713, 240 N.W.2d 344 (1976), separate premiums had been paid for the uninsured motorist coverages provided under a single policy on two vehicles. A four-member majority of this court held that such coverages could not be aggregated in the face of a clause which provided that "[r]egardless of the number of automobiles to which this policy applies ... [t]he limit of liability for [uninsured motorist coverage] stated in the declarations as applicable to 'each person' is the limit of [the insurer's] liability for all damages ... sustained by one person as the result of any one accident...." Id. at 715, 240 N.W.2d at 346. One dissenting judge, joined by the then Chief Justice and one other judge, who also dissented separately, was of the opinion that § 60-509.01 required aggregation of the coverages and interpreted the majority opinion to make the amount of statutorily required uninsured motorist coverage depend upon the number of policies issued instead of the number of vehicles insured. The separately dissenting judge was also of the opinion the issue was controlled to the contrary by Bose, supra.

Eich v. State Farm Mut. Automobile Ins. Co., 208 Neb. 714, 305 N.W.2d 621 (1981), overruled on other grounds 209 Neb. 396, 308 N.W.2d 503, presented policy language which defined an owned motor vehicle as the one "described in the declarations" and excluded coverage for injury "TO AN INSURED WHILE OCCUPYING OR THROUGH BEING STRUCK BY A LAND MOTOR VEHICLE OWNED BY THE NAMED INSURED OR ANY RESIDENT OF THE SAME HOUSEHOLD, IF SUCH VEHICLE IS NOT AN OWNED MOTOR VEHICLE. " Id. at 720-21, 305 N.W.2d at 625. The insured owned three vehicles, each of which was insured by a separate State Farm policy. Since only the vehicle insured by each policy was described in that policy's declarations, there was but one "owned" vehicle per policy. While driving a vehicle covered under one of the State Farm policies, the insured was injured in an accident involving an uninsured motorist. This court, with the present Chief Justice concurring on an unrelated point and two judges concurring without opinion, held the aforedescribed exclusion...