Elledge v. Warren

• Decision Date: 19 May 1972
• Docket Number: No. 3835,3835
• Citation: 263 So.2d 912
• Parties: Mary A. ELLEDGE, Individually and In Her Capacity As Natural Tutrix of the Minor, Murray Jay Elledge, Plaintiff-Appellant, v. Earl F. WARREN et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 912

263 So.2d 912

Mary A. ELLEDGE, Individually and In Her Capacity As Natural Tutrix of the Minor, Murray Jay Elledge, Plaintiff-Appellant, v. Earl F. WARREN et al., Defendants-Appellees.

No. 3835.

Court of Appeal of Louisiana Third Circuit.

May 19, 1972.

Rehearing Denied June 15, 1972.

Writ Refused Sept. 19, 1972.

Richard R. Kennedy, Lafayette, for plaintiff-appellant.

McBride & Brewster, by Robert R. McBride, Lafayette, for defendants-appellees.

Before FRUGE , HOOD and MILLER, JJ.

MILLER, Judge.

The trial court granted summary judgment dismissing Mary A. Elledge's claim against her insurer under the uninsured motorist coverage, enforcing the exclusion of uninsured motorist coverage when the insured is occupying an uninsured automobile owned by the named insured or a relative. We reverse. The exclusionary provision is contrary to the statute which requires uninsured motorist protection unless specifically waived.

Mary A. Elledge owned two automobiles and a Honda motorcycle. Both automobiles were insured, and uninsured motorists protection was provided for both. Under the terms of the policy, her son was an insured. The motorcycle was not insured. Mrs. Elledge's son Murray Elledge was operating the Honda motorcycle in Lafayette and had stopped for a traffic light. Two other motorists--one insured and one uninsured--collided causing one to strike and injure Murray. In the claim for damages for personal injuries and medical expenses, plaintiff joined her insurer as party defendant under her uninsured motorist coverage, in the event the uninsured motorist was found to be the sole cause of the accident.

Mrs. Ellege's insurer, defendant State Farm Mutual Automobile Insurance Company, moved for summary judgment based on its policy exclusion relating to uninsured motorist coverage--Part IV coverage U at page 8:

'EXCLUSIONS. This policy does not apply under Part IV.

'a) to bodily injury to an insured while occupying an automobile (other than an insured automobile) owned by the named insured or a relative, or through being struck by such an automobile, . . .'

As to the applicability of the exclusionary clause to the uninsured Motorcycle in this case, we note that in many instances the words of a policy are interpreted according to their general and popular use. The exclusionary clause in this case is worded in terms of automobiles other than insured automobiles, i.e., uninsured automobiles, owned by the named insured or his relatives. We accede to the proposition that in its general and popular use the word uninsured automobile would not comprehend motorcycle.

However, the rule of general and popular use construction applies Only where the terms are not defined by the policy itself. 'Where a policy of insurance contains a definition of any word or phrase, this definition is controlling.' Hendricks v. American Employers Insurance Co., 176 So.2d 827, 830 (La.App. 2 Cir. 1965), writ refused 248 La. 415, 179 So.2d 15. Furthermore, exclusionary provisions must be read in the context of the entire policy. West v . City of Ville Platte, 237 So.2d 730 (La.App. 3 Cir. 1970).

In the case at hand the exclusion relating to automobiles owned but not insured is found in Part IV of the policy. The definition of such an uninsured automobile is found in the same section, as follows:

'. . . the term 'uninsured automobile' shall not include:

(4) a land motor vehicle or trailer if operated on rails or crawler-treads or while located for use as a residence or premises and not as a vehicle . . .'

In Thibodeaux v. St. Paul Mercury Insurance Company, 242 So.2d 112, (La.App. 3 Cir. 1971), this definition was held to have the following meaning:

'This specific exclusion of certain types of land motor vehicles indicates that the policy did include all and motor vehicles under its uninsured motorist provision . . .'

The court found that the insurance company had thereby intended to include motorcycles within the concept of uninsured automobiles. We believe that although it was not so nominated, the Process of reasoning which the court used in this case was that applied in Darrell v. State Fire and Casualty Company, 221 So.2d 5, 6 (Fla.App. 3 Dist. 1969):

'So when we apply the maxim 'expressio unius est exclusio alterius' to the above quoted portion of the insurance policy we conclude that As defined in the policy 'automobile' means all land vehicles except those specifically excluded and that therefore a motorcycle is an automobile within the meaning of the instant insurance policy.'

Having determined that the definition of uninsured automobiles in the present policy includes motorcycles, ¹ we read the exclusion in this context and conclude that motorcycles are included within the vehicles owned but not insured to which this exclusion applies.

That such a broad definition of automobiles is warranted in interpreting the exclusion clause is borne out by the fact that in Rushing v. Allstate Insurance Co., 216 So.2d 875 (La.App. 2 Cir. 1968) the court found an identically worded exclusion applicable to a truck.

Can the insurer require its insured owner of uninsured motorist coverage to pay additional premiums when the insured owns more than one automobile in order to provide uninsured motorist coverage while its insured is occupying other vehicles 'owned by the named insured or a relative'? We find it cannot.

Problems caused by the financially irresponsible and the uninsured motorist have been the subject of much study. See The Problem of the Financially Irresponsible Motorist, 24 U.Kansas City L.Rev. 82 (1955--56); The Uninsured Motorist: National and International Protection Presently Available and Comparative Problems in Substantial Similarity, 9 Buffalo L.Rev. 283--320 (1960); Public Responsibility and the Uninsured Motorist, 47 Georgetown L. J. 700, 702 (1959); Uninsured Motorist Coverage in Virginia, 47 Virginia L.Rev. 145 (1961); The Nature and Potential of the Saskatchewan Insurance Experiment, 14 Florida L.Rev. 352 (1961); Widess, A Guide to Uninsured Motorist Coverage (1969); and New Provisions for Protection from Injuries Inflicted by an Uninsured Automobile, 396 Insurance L.J. 19, 20 (1956).

By the end of 1968, forty-six states had legislation requiring insurance companies to include uninsured motorist coverage (unless specifically waived) in all liability policies issued or delivered by an insurer licensed in the state, upon any motor vehicle principally used or garaged in the State. Widess, supra, § 111, p. 15. Louisiana is one. LSA-R.S. 22:1406, subd. D(1) provides:

'D. (1) 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.'

In the light of the history of this legislation as reported by the cited authorities, we find it appropriate to review our appreciation of our own statute.

There existed in our society a situation whereby financially irresponsible people could acquire and drive vehicles capable of great damage. Because of their financial irresponsibility and lack of insurance, they were unable to respond to their victim in damages under LSA-C.C. Art. 2315. This created a class of injured people in our state who were left without recourse and who, without some form of relief, might become wards of the state. Insurance plans (such as the financial responsibility law) oriented toward coercing motorists to purchase insurance or removing them from the highways if they did not, proved ineffective. Other plans had to be developed.

In an effort to forestall plans distasteful to itself, the insurance industry set forth a plan of compensation for the innocent victims of the uninsured motorists. In surveying the problem, it became evident to our legislature that the source of the harm was a danger peculiar to the use of the automobile and the industry most capable and most interested in resolving the problem was the one most closely related thereto in terms of economics and self interest--the automobile insurers. Therefore, our legislature seized upon the solution set forth by the insurance industry and made the offering of uninsured motorist protection a mandatory condition precedent before the companies could conduct business in Louisiana.

The evil and the injuries existed. By the terms of our statute, whenever evil perpetuates itself upon a policy holder availing himself of uninsured motorist coverage (or insureds under his policy), he is to be compensated for his injuries. In Booth v. Fireman's Fund Insurance Company,253 La. 521, 218 So.2d 580, 583 (1969), our Supreme Court concluded 'that the intent of our uninsured motorist statute and the policy endorsement issued thereunder is to afford protection to the insured when they become the innocent victims of the negligence of uninsured motorists.' See also Valdez v. Federal Mutual Insurance Company, 272 Cal.App.2d 223, 77 Cal.Rptr. 411, 413 (1969). '. . . Such statutes must be liberally construed to carry out this objective of providing compensation for those injured through no fault of their own.'

The nature of the premium charged for this protection given insight into the coverage afforded. The rate is a flat one and coverage is...