Easley v. Firemen's Ins. Co. of Newark, N. J.

• Decision Date: 20 June 1979
• Docket Number: No. 7041,7041
• Citation: 372 So.2d 1067
• Parties: Cecil F. EASLEY, Plaintiff-Appellant-Appellee, v. FIREMEN'S INSURANCE COMPANY OF NEWARK, NEW JERSEY, Defendant-Appellant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 1067

372 So.2d 1067

Cecil F. EASLEY, Plaintiff-Appellant-Appellee, v. FIREMEN'S INSURANCE COMPANY OF NEWARK, NEW JERSEY Defendant-Appellant-Appellee.

No. 7041.

Court of Appeal of Louisiana, Third Circuit.

June 20, 1979.

Gold, Little, Simon, Weems & Bruser, Eugene J. Sues, Alexandria, for defendant-appellant-appellee.

Thomas & Dunahoe by G. F. Thomas, Jr., Whitehead & McCoy, Charles F. Whitehead, Jr., Natchitoches, for plaintiff-appellant-appellee.

Before WATSON, FORET and CUTRER, JJ.

FORET, Judge.

This is an action on an insurance policy brought by the insured against his insurer. The district court, upon interpretation of the provisions of the policy, granted plaintiff recovery of the sum sought but held that the insurance company was not liable for any penalties or attorney fees. From such judgment, defendant has perfected this appeal. Plaintiff has answered, and, additionally, seeks the previously denied penalties and attorney fees.

The factual circumstances of this case are, for the purposes here present, basically undisputed. On December 28, 1977, the trailer of a tractor-trailer rig was struck broadside by a Kansas City Southern train as it was crossing certain railroad tracks in the Village of Goldonna, Natchitoches Parish, Louisiana. The trailer was destroyed in the accident, which also resulted in the derailment of the train and the explosion of a tank car(s) carrying combustible materials. Plaintiff, Cecil F. Easley, a pedestrian-bystander on his own property adjacent to the train tracks, was burned by the "gigantic fireball" (trial ct., reasons for judgment) which erupted from the damaged tank car(s). Various other persons and property near the scene were also damaged and/or destroyed by fire or explosion.

Easley demanded payment from his personal automobile liability insurer (defendant, Firemen's) under the medical payments provision of the policy; subsequently this suit was filed.

The three issues presented to the trial court and on appeal are:

1. Is the plaintiff entitled to recovery under the medical payments provision of his insurance policy?

2. If he is entitled to a recovery, in what amount (i. e. can he "stack" the medical payments provisions of the two automobiles on the policy)?

3. Is he entitled to penalties and attorney fees?

The trial court rendered judgment in favor of plaintiff on the first two issues but denied the third. The same three issues are before us on appeal. We affirm.

COVERAGE

The first legal issue involves an interpretation of the policy language contained in the policy of insurance issued by defendant to plaintiff. The "medical payments" provision requires the insurance company:

"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:

Division 1. To or for the named insured and each relative who sustains bodily injury, sickness or disease, including death resulting therefrom, hereinafter called "bodily injury", caused by accident,

(a) while occupying the owned automobile (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;"

Plaintiff, who was a pedestrian at the time of the accident, claims coverage under sub-section (c). Initially, it must be stated that plaintiff was not physically struck by either the train or truck or any parts thereof, but was burned in the explosion.

In the interpretation of insurance policies, the vast majority of jurisdictions hold that to recover under this provision, an injured person need not be actually physically struck by a motor vehicle, but may recover if injured By a motor vehicle. With one exception (which will be discussed later in this opinion), Louisiana is included in this majority.

The first Louisiana case to deal with this issue was Blanchard v. Hanover Insurance Co., 250 So.2d 484 (La.App. 1 Cir. 1971). In that case, the injured plaintiff, driving his employer's truck, collided with another vehicle. The other vehicle did not physically contact him. The court, in a comprehensive review of the law in other jurisdictions, and Louisiana, granted him recovery, holding that actual physical contact was not a prerequisite.

This ruling was affirmed by the First Circuit in Landry v. State Farm Mutual Automobile Insurance Company, 298 So.2d 291 (La.App. 1 Cir. 1974), writ refused, a factually similar case.

This Circuit, in Leger v. Allstate Insurance Co., 252 So.2d 186 (La.App. 3 Cir. 1971), followed the majority rule in a situation where a motorcyclist was injured when his bike struck a slowly moving automobile. We noted there that "Since the automobile was moving and provided part of the force for the blow, there can be no question that the insured was 'struck by' the automobile within the contemplation of the policy provisions". 252 So.2d at pg. 188.

In Vallot v. All American Insurance Co., 302 So.2d 625 (La.App. 3 Cir. 1974), this Court, citing Blanchard, Landry, and Leger, held that there was coverage for plaintiff when her husband was killed when his tractor was struck from the rear by an overtaking truck, which did not physically touch decedent's person.

As noted above, the vast majority of states no longer require any actual physical contact of the injured person by a motor vehicle. In addition to those cases cited and quoted with approval by the First Circuit in Blanchard, we note the following cases whose factual circumstances are somewhat closer to our instant case:

In Black v. Hanover Insurance Co. (1961), 30 Misc.2d 1081, 220 N.Y.S.2d 168, the plaintiff left an automobile which the driver was trying to park and was injured when the rear of the automobile hit a pole which in turn struck the plaintiff. The New York court granted recovery for the plaintiff, finding that the apparent purpose of the clause was to compensate a policy holder in the event he incurred expenses in connection with an automobile accident.

In McKay v. Travelers Indemnity Company (1963 App.), 27 Ohio Op.2d 76, 94 Ohio L.Abs. 1, 193 N.E.2d 431, the Ohio court gave judgment for a plaintiff who was seated on a stool inside a building when a truck struck the building, canned goods fell on her, and she fell from the stool to the floor, suffering injuries.

In DeBerry v. American Motorists Insurance Co., 33 N.C.App. 639, 236 S.E.2d 380 (1977), the North Carolina court granted recovery to a plaintiff who was injured when a rope barrier, tied across a city street for crowd control purposes, was struck by an automobile, causing the rope to break and strike the plaintiff.

These cases are but a few examples of foreign jurisprudence. ¹ Those cases cited by defendant which require actual physical contact are in the decided minority and generally not very recently decided. The apparently leading case for this view, Johnston v. Maryland Casualty Co., 22 Wash.2d 305, 155 P.2d 806 (1945) has been specifically criticized in many jurisdictions (including Louisiana in Blanchard ) and we decline to follow it at this late date.

As noted earlier in this opinion, there is one Louisiana case the defendant has cited in support of its position. In Bowab v. St. Paul Fire & Marine Ins. Co., 152 So.2d 66 (La.App. 3 Cir. 1963), the ruling was against the plaintiff. In that case the plaintiff had removed a wheel and tire from his boat trailer and was attempting to replace a missing bolt in the wheel, when the tire exploded, causing the tire and a part of the wheel to strike plaintiff. As we noted in Leger, where the defendant also attempted to rely on Bowab, "the majority rule (is) that if the automobile is moving this satisfies the requirement that the insured be 'struck by' the automobile . . . where the offending automobile is in motion there is no question that the insured was 'struck by' the automobile".

In the instant case, the tractor trailer was in motion (if too slowly) across the railroad tracks when it was hit by the train. As we noted in Leger, this fact is sufficient; the entire force and momentum of the blow need not come from the motor vehicle. Accordingly, we find that plaintiff is entitled to recover under the medical payments provision of his insurance policy.

STACKING

Plaintiff insured two automobiles under his Firemen's automobile insurance policy. Each vehicle coverage contained a medical payments provision of $2,000 for which the plaintiff was charged separate premiums. As the plaintiff's medical expenses are in excess of $2,000, he sought to have the coverages for the two vehicles combined ("stacked") to reach a total coverage of $4,000, which demand was granted by the trial court.

A review of the insurance policy shows the following language which, Firemen's argues, acts to limit any liability under medical payments provision to $2,000 (the amount of coverage on one automobile):

Limit of Liability

The limit of liability for medical payments stated in the declarations as applicable to "each person" is the limit of the company's liability for all expenses incurred by or on behalf of each person who sustains bodily injury as the result of any one accident.

We also note another provision of the policy:

4. Two or More Automobiles Parts I, II and III

When two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each but an automobile and a trailer attached thereto shall be held to be one automobile as respects limits of liability under Part I of this policy, and separate automobiles under Part III of this policy, including any deductible provisions applicable thereto.

Despite the apparent ambiguity between these two provisions of the insurance policy, defendant argues merely...