Cockrum v. Travelers Indem. Co., 16973
| Decision Date | 29 September 1967 |
| Docket Number | No. 16973,16973 |
| Citation | 420 S.W.2d 230 |
| Parties | William A. COCKRUM, Appellant, v. TRAVELERS INDEMNITY COMPANY, Appellee. . Dallas |
| Court | Texas Court of Appeals |
Marvin Menaker, Dallas, for appellant.
John A. Gilliam, of Thompson, Knight, Simmons & Bullion, Dallas, for appellee.
This is an appeal by William A. Cockrum from a take nothing summary judgment in favor of Travelers Indemnity Company in a suit filed by Cockrum to recover medical payments under a family automobile insurance policy. The facts were not in dispute and both parties filed a motion for summary judgment. The sole question presented was the liability Vel non of Travelers for the payment of medical payment insurance under the automobile policy. The trial court found that as a matter of law there was no liability and granted appellee's motion for summary judgment.
On February 9, 1965 Travelers Indemnity Company issued its Family Automobile Policy (being a renewal of prior coverage) with William A . Cockrum as the named insured. This policy contained a schedule of coverage on three separate automobiles owned by Cockrum. Car No. 1 was a Cadillac, 1961 model, and was specifically insured for bodily injury liability; property damage liability; medical payments in the sum of $1,000; comprehensive liability; collision and towing. Each separate coverage bore a designated premium charge. Car No. 2 was a 1956 Cadillac and was insured for the same coverages with the exception of medical payments and collision. Car No. 3 was a 1961 Pontiac and was specifically insured against all losses except medical payments. It was undisputed that medical payment coverage was not requested for the No. 3 automobile and none was charged therefor. The policy contained the provision that:
'The absence of an entry in any premium space shall mean that such insurance is not afforded with respect to the particular automobile.'
On May 9, 1965, while the policy in question was in full force and effect, William A. Cockrum's daughter, Barbara Jean, while driving the Pontiac automobile, being the No. 3 car described in the policy, was in collision with another automobile and, as a result of such accident, she was killed. The amount of the funeral expenses incurred as a result of the daughter's death exceeded the sum of $1,000. It was conceded by the insurance company that if there was liability under the policy in question Cockrum would be entitled to recover the sum of $1,000, plus 12 per cent penalty in the amount of $120, and for reasonable attorney's fees.
The material portions of the policy of insurance sued upon and which must control the issue of liability are as follows:
The term 'owned automobile' means
'(a) a private passenger * * * automobile described in this policy for which a specific premium charge indicates that coverage is afforded, * * *.'
'PART II--Expenses for Medical Services.
'Coverage C--Medical Payments.
'To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, X-ray and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services:
'(b) while occupying a non-owned automobile, but only if such person has, or reasonably believes he has, the permission of the owner to use the automobile and the use is within the scope of such permission, or
'(c) through being struck by an automobile or by a trailer of any type;
'(a) the owned automobile, while being used by the named insured, by any resident of the same household or by any other person with the permission of the named insured; * * *.'
'Definitions.
'The definitions under Part I apply to Part II, and under Part II: 'occupying' means in or upon or entering into or alighting from.
'Exclusions.
'This policy does not apply under Part II to bodily injury:
'(a) sustained while occupying (1) an owned automobile while used as a public or livery conveyance, or (2) any vehicle while located for use as a residence or premises;
'(b) sustained by the named insured or a relative while occupying or through being struck by (1) a farm type tractor or other equipment designed for use principally off public roads, while not upon public roads, or (2) a vehicle operated on rails or crawler-treads;
'(c) sustained by any person other than the named insured or a relative,
'(1) while such person is occupying a non-owned automobile while used as a public or livery conveyance, or
'(2) resulting from the maintenance or use of a non-owned automobile by such person while employed or otherwise engaged in the automobile business, or
'(3) resulting from the maintenance or use of a non-owned automobile by such person while employed or otherwise engaged in any other business or occupation, unless the bodily injury results from the operation or occupancy of a private passenger automobile by the named insured or by his private chauffeur or domestic servant, or of a trailer used therewith or with an owned automobile;
'(d) sustained by any person who is employed in the automobile business, if the accident arises out of the operation thereof and if benefits therefor are in whole or in part either payable or required to be provided under any workmen's compensation law;
'(e) due to war.'
'Conditions.
'Parts I, II and V
'When two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each, * * *.'
OPINIONAppellant and appellee agree that the only question to be resolved by this appeal is one of law, i.e., whether the insurance contract sued upon imposes the legal obligation upon the part of appellee to pay benefits under the medical payment provision of the policy under the admitted facts presented in this record. Appellant, in his sole point of error, contends that since appellant's daughter sustained injuries, which resulted in her death, which were caused by an accident through being struck by an automobile, that the terms of the insurance policy became effective. In support of his contention appellant relies upon the decision of this court in Hale v. Allstate Ins. Co. (Tex.Civ.App., Dallas 1961), 345 S.W.2d 346, and the opinion of the Supreme Court of Texas in answering a certified question, Hale v. Allstate Ins. Co., 162 Tex. 65, 344 S.W.2d 430 (1961). Appellant contends that the trial court erred in failing to sustain his motion for summary judgment as well as committing error in sustaining appellee's motion.
Appellee, by appropriate counterpoints, takes the position that the trial court's judgment was correct since at the time the accident occurred appellant's daughter was driving the Pontiac automobile owned by appellant but which was expressly not insured under the medical payment provision of the policy. Appellee argues that since the parties had expressly contracted that no medical payment benefits would be provided on the Pontiac automobile, and no premium charges were made for such coverage on such automobile, there can legally be no liability on appellee for the payment of such coverage. In support of its position appellee relies upon Vaughn v. Atlantic Ins. Co., 397 S.W.2d 874 (Tex.Civ.App., Tyler 1965, writ ref'd n.r.e.), and Gonzales v. Farmers Ins. Exchange, 399 S.W.2d 888 (Tex.Civ.App., Eastland 1966 writ ref'd n.r.e.). We are unable to agree with appellee that either of these cases is applicable under the factual situation here presented.
In Vaughn, supra, the insured had a policy of insurance upon each of two automobiles owned by him, one a Ford and the other a Chevrolet. While Vaughn, his wife and daughter, were driving the Ford automobile they were involved in a head-on collision in which Mrs. Vaughn was killed. The insurance company admitted liability on the medical coverage provision of the policy covering the Ford automobile and paid the same. Waughn attempted to collect medical payment coverage on the Chevrolet automobile, which was...
To continue reading
Request your trial
-
Wachovia Bank & Trust Co. v. Westchester Fire Ins. Co.
...v. Watson, 111 Ga.App. 98, 140 S.E.2d 505; Southwestern Fire and Casualty Co. v. Atkins, 346 S.W.2d 892 (Tex.Civ.App.); Cockrum v. Travelers Indemnity Co., 420 S.W.2d 230 (Tex.Civ.App.); 8 Appleman, Insurance Law and Practice, § 4896, 1969 pocket parts. See also: Kansas City Fire & Marine I......
-
Wachovia Bank & Trust Co. v. Westchester Fire Ins. Co., 6910DC479
...the construction of a medical payments provision in an automobile insurance policy in the case of Cockrum v. Travelers Indemnity Company, 420 S.W.2d 230, (Tex.Civ.App.1967). In this case the policy involved was the new form policy similar to the policy in the instant case. The insured owned......
-
Lord v. State Farm Mut. Auto. Ins. Co., 800158
...is fixed and final. See Nagy v. Lumbermens Mutual Casualty Company, 100 R.I. 734, 219 A.2d 396 (1966), and Cockrum v. Travelers Indemnity Company, 420 S.W.2d 230 (Tex.Ct.App.1967). In these circumstances, the insurer should be required to show that any delay in the receipt of notice was unr......
-
Harris v. Employers Mut. Cas. Co.
...Co. v. Sweet, Supra; Travelers Indemnity Co. v. Watson, Supra. See Carson v. Nationwide Mutual Insurance Co., Supra; Cockrum v. Travelers Indemnity Co., 420 S.W.2d 230 When the ordinary meaning is ascribed to the phrase 'struck by an automobile,' Division 1(c) provides coverage which overla......