Collins v. New Orleans Public Service, Inc.
| Decision Date | 06 April 1970 |
| Docket Number | No. 3829,3829 |
| Citation | 234 So.2d 270 |
| Parties | Mrs. Meriam COLLINS, Wife of and Eugene Collins v. NEW ORLEANS PUBLIC SERVICE, INC., Jane Doe and Dairyland Insurance Company. |
| Court | Court of Appeal of Louisiana — District of US |
Levy, Smith & Pailet, Adolph J. Levy, New Orleans, for plaintiffs-appellants.
Porteous, Toledano, Hainkel & Johnson, C. Gordon Johnson, Jr., New Orleans, for defendants-appellees.
Before SAMUEL, CHASEZ and REDMANN, JJ.
Plaintiffs, husband and wife, filed this suit for damages for alleged personal injuries sustained by the wife while she was a fare-paying passenger in a New Orleans Public Service bus. The petition names three defendants: New Orleans Public Service, Inc.; 'Jane Doe', a person whose true name and identity was unknown; and Dairyland Insurance Company, plaintiffs' automobile liability insurance carrier under a policy containing an uninsured motorist endorsement.
Dairyland filed a motion for summary judgment and after a hearing thereon there was judgment granting the motion and dismissing the suit against the defendant. Plaintiffs have appealed.
The material facts are not in dispute insofar as this appeal from the summary judgment is concerned. An automobile, described as a 'blue, 1967 Ford Mustang', drove in front of the bus in which the plaintiff-wife was riding. The bus came to an abrupt stop which caused her to fall and suffer the injuries in suit. There was no physical contact between the bus and the automobile. The latter continued on and the name and identity of its owner and of its driver are unknown. The petition alleges the abrupt stop was proximately caused by the negligence of both the bus driver and the driver of the Mustang.
Plaintiffs' cause of action against Dairyland is based on the contention that the offending automobile was uninsured within the meaning of the uninsured automobile provisions of the policy, and a 'hit-and-run' vehicle under those provisions, despite the policy definition of 'hit-and-run automobile' as one which has physical contact with the insured or with the vehicle which the insured is occupying and the fact that there was no physical contact here. Their counsel argue: (1) the requirement of physical contact is invalid because it is beyond the provisions of the pertinent uninsured motorist law; and, alternatively (2) even if the words used in the insurance contract are fairly explicit, the court must refrain from interpreting them in such a manner as to lead to absurd consequences.
The uninsured motorist law to which appellant refers is LSA-R.S. 22:1406 D(1), which reads:
'No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits described in the Motor Vehicle Safety Responsibility Law of Louisiana, under provisions filed with and approved by the Commissioner of Insurance, For the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, however, that the coverage required under this section shall not be applicable where any insured named in the policy shall reject the coverage.' (Emphasis added).
In pertinent part, the insurance contract in suit:
1. Provides that the insurer (Dairy-land) '* * * will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an...
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