Curry v. Travelers Indem. Co.

• Decision Date: 22 November 1989
• Docket Number: Civ. A. No. H87-0239(W).
• Parties: James W. CURRY, Plaintiff, v. The TRAVELERS INDEMNITY COMPANY, Defendant.
• Court: U.S. District Court — Southern District of Mississippi

728 F. Supp. 1299

James W. CURRY, Plaintiff, v. The TRAVELERS INDEMNITY COMPANY, Defendant.

Civ. A. No. H87-0239(W).

United States District Court, S.D. Mississippi, Hattiesburg Division.

November 22, 1989.

Sam H. Buchanan, Jr., Watson & Buchanan, Hattiesburg, Miss., for plaintiff.

J. Price Coleman, Daniel, Coker, Horton & Bell, Jackson, Miss., for defendant.

MEMORANDUM OPINION AND ORDER

WINGATE, District Judge.

Before the court are two motions: a motion by the defendant, The Travelers Indemnity Company (hereinafter Travelers), for summary judgment and a cross-motion by the plaintiff, James Curry, also for summary judgment, both pursuant to Rule 56 of the Federal Rules of Civil Procedure. In this court pursuant to diversity jurisdiction under 28 U.S.C. § 1332, this lawsuit was originally filed in the Circuit Court of Forrest County, Mississippi, and removed to this court upon motion of the defendant. The plaintiff is an adult resident citizen of Forrest County, Mississippi. The defendant is a Connecticut corporation licensed to do business in Mississippi. The issue which brings together these parties in this lawsuit is whether the plaintiff, a cab driver who was injured in the scope of his employment, may stack uninsured motorist benefits pursuant to his employer's single business automobile policy with Travelers which covered three taxis. Emphasizing that plaintiff is a second class insured and that the policy in question is a business policy covering multiple vehicles, defendant argues that Mississippi law does not recognize stacking in this instance. For the reasons set out below, the court disagrees with the defendant and grants summary judgment to the plaintiff.

Facts

At the time of the automobile accident giving rise to this lawsuit, the plaintiff, James M. Curry, was employed by the Liberty Cab Company of Hattiesburg, Mississippi, which was owned by Abraham Pack, Jr. On March 5, 1987, while driving a 1979 Chevrolet Impala taxi cab owned by Liberty Cab, plaintiff was struck from behind when stopped at the intersection of Highway 49 North and Hardy Street in Hattiesburg, Mississippi. The automobile which struck the plaintiff was driven by Jeffrey Kuhlman.

The 1979 Chevrolet Impala taxi cab, as well as two other vehicles owned by Liberty Cab, were insured by defendant Travelers under a single business automobile policy— Number 68BAP895G148-1-86. The policy provided uninsured motorist coverage, inter alia, for the named insured, Abraham Pack, and "anyone else occupying a covered auto" in the face amount of $10,000.00 for each person and $20,000.00 for each accident. Both parties concede that Jeffrey Kuhlman was an uninsured motorist.

Following the accident, plaintiff sought uninsured motorist benefits from Travelers for injuries he sustained in the March 5th accident. In response, Travelers tendered the amount of $10,000.00 to plaintiff as the uninsured motorist limit payable to a single person for injuries sustained in a single accident. Plaintiff thereafter filed this lawsuit seeking an additional $20,000.00 from Travelers on the premise that he should be allowed to stack an aggregate coverage on the three automobiles owned by Liberty Cab and insured by Travelers.

In their respective motions for summary judgment, both parties agreed that the germane, material issues are undisputed and that this case should be decided pursuant to summary judgment. The court agrees with their assessment of the facts and the propriety of summary judgment here. Celotex Corporation v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Since the court's jurisdiction is premised upon diversity of citizenship pursuant to 28 U.S.C. § 1332, the court applies Mississippi law. Erie v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

Uninsured Motorist Coverage

Uninsured motorist insurance was conceived by the insurance industry and adopted in Mississippi to provide innocent injured motorists a means of recovery of all sums to which they are entitled from an uninsured motorist. Wickline v. United States Fidelity & Guaranty Co., 530 So.2d 708, 712 (Miss.1988); Rampy v. State Farm Mutual Automobile Insurance Company, 278 So.2d 428, 431-32 (Miss. 1973); Harthcock v. State Farm Mutual Automobile Insurance Company, 248 So.2d 456, 461-62 (Miss.1971). The Mississippi Supreme Court has noted that the Uninsured Motorist Act must be liberally construed in order to achieve this stated purpose. Wickline, supra, at 711; Parker v. Cottonbelt Ins. Co., Inc., 314 So.2d 342 (Miss.1975); Lowery v. State Farm Mutual Automobile Ins. Co., 285 So.2d 767 (Miss.1973); Hodges v. Canal Ins. Co., 223 So.2d 630 (Miss.1969). Under Mississippi law, insurers must include uninsured motorist coverage in their automobile liability policies with minimum limits of $10,000.00 per person and $20,000.00 per occurrence. Miss.Code Ann. §§ 83-11-101, 63-15-43 (Supp.1985); Tucker v. Aetna Casuaty & Surety Co., 801 F.2d 728, 730 (5th Cir. 1986), reh. denied, 805 F.2d 1030 (5th Cir. 1986). One qualifies for uninsured motorist coverage when the negligent tortfeasor's vehicle is an "uninsured motor vehicle" as defined in the Mississippi uninsured motorist statute. Miss.Code.Ann. § 83-11-103(c); Wickline, supra, at 712; McMinn v. New Hampshire Insurance Company, 276 So.2d 682 (Miss.1973). Thus, an uninsured motor vehicle is a motor vehicle as to which there is no bodily injury liability insurance or a vehicle with liability insurance limits less than the uninsured motorist limits applicable to the injured person.

Plaintiff's Status As Second Class Insured

Mississippi Code Annotated § 83-11-103(b) establishes two classes of insureds: those of the first class and those of the second class. Insured is defined as follows:

(b) The term "insured" shall mean the named insured and, while resident of the same household, the spouse of any such named insured and relatives of either, while in a motor vehicle or otherwise, and any person who uses, with the consent, expressed or implied, of the named insured, the motor vehicle to which the policy applies, and a guest in such motor vehicle to which the policy applies, or the personal representative of any of the above. The definition of the term "insured" given in this section shall apply only to the uninsured motorist portion of the policy.

Thus, second class insureds are those who use, with the consent, express or implied, of the named insured the motor vehicle to which the policy applies. Brown v. Maryland Casualty Co., 521 So.2d 854, 856 (Miss.1987).

Travelers' policy provided uninsured motorist protection for the following insureds:

1. You or any family member.

2. Anyone else occupying a covered auto or a temporary substitute for a covered auto. The covered auto must be out of service because of its breakdown, repair, servicing, loss or destruction.

3. Anyone for damages he is entitled to recover because of bodily injury sustained by another insured.

The plaintiff at the time of the accident was driving one of the Liberty Cabs vehicles which was covered under Policy Number 68BAP895G148-1-86 with the named insured's consent. Plaintiff, therefore, is a second class insured under Travelers' policy.

Stacking

The Mississippi Supreme Court has determined that stacking or aggregation of uninsured motorist coverage is permissible where the insured is of the first class. Southern Farm Bureau Casualty Ins. Co. v. Roberts, 323 So.2d 536 (Miss.1975); Pearthree v. Hartford Accident & Indemnity Co., 373 So.2d 267 (Miss.1979).

Travelers urges this court to adopt the rationale of those states which do not allow a second class insured to stack uninsured motorist coverage under any circumstances. These states place great significance upon the distinction between first and second class insureds and conclude that second class insureds have no reasonable expectation of increased coverage due to stacking, since, unlike first class insureds, they have no contractual relationship with the insurer and would not have paid any premiums for the coverage. See Hines v. Home Insurance Co., 495 So.2d 682 (Ala. Civ.App.1986); Murphy v. Milbank Mutual Insurance Co., 388 N.W.2d 732 (Minn. 1986); Babcock v. Adkins, 695 P.2d 1340 (Okl.1984); Utica Mutual Insurance Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984); Holloway v. Nationwide Mutual Insurance Co., 376 So.2d 690 (Ala.1979); Ohio Casualty Insurance Co. v. Stanfield, 581 S.W.2d 555 (Ken.1979); Travelers Insurance Co. v. Pac, 337 So.2d 397 (Fla.App. 1976), cert. denied, 351 So.2d 407 (Fla.1977); Cunningham v. Insurance Company of North America, 213 Va. 72, 189 S.E.2d 832 (1972).

However, it is clear that Mississippi does not limit stacking of uninsured motorist benefits solely to first class insureds. In Brown v. Maryland Casualty Co., 521 So.2d 854 (Miss.1987), a second class insured was allowed to stack uninsured motorist coverage. In Brown, Tracy Dee Brown, the daughter-in-law of Roy Brown, was killed in a motor vehicle accident while driving her father-in-law's automobile with his permission. The accident was caused by the negligence of an underinsured motorist. Roy Brown owned two vehicles for which separate premiums were paid for uninsured motorist coverage. Suit was brought by Tracy's husband and daughter who claimed entitlement to stack the uninsured motorist protection provided on both vehicles. The lower court held that the uninsured motorist coverage could not be stacked since Tracy was a Class Two insured and only entitled to the coverage provided for on the vehicle she was driving. The Mississippi Supreme Court reversed the lower court, holding that stacking of the uninsured motorist coverage was appropriate. The Court reasoned that it is not important who has paid the premiums, but rather that the protection has been purchased.

Then, in Wickline v. United States Fidelity & Guaranty Co., 530 So.2d 708 (Miss.1988), the Mississippi Supreme Court settled...