Harthcock v. State Farm Mut. Auto. Ins. Co., 46040

• Citation: 248 So.2d 456
• Decision Date: 01 February 1971
• Docket Number: No. 46040,46040
• Parties: Shirley Foster HARTHCOCK v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Universal Underwriters Insurance Company.
• Court: Mississippi Supreme Court

Page 456

248 So.2d 456

Shirley Foster HARTHCOCK v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Universal Underwriters Insurance Company.

No. 46040.

Supreme Court of Mississippi.

Feb. 1, 1971.

Rehearings Denied June 7, 1971.

J. H. Hogue, Jr., John S. Holmes, Yazoo City, for appellant.

Satterfield, Shell, Williams & Buford, Carl E. Bufkin, Lipscomb, Barksdale, Steen & Caraway, Jimmie B. Reynolds, Jr., Jackson, for appellees.

GILLESPIE, Presiding Justice:

The several questions in this case involve the Uninsured Motor Vehicles Act, Mississippi Code 1942 Annotated Section 8285-51 et seq., enacted in 1966.

Shirley Foster Harthcock was the plaintiff in the trial court and is appellant here. She was a passenger on a motorcycle owned by Lonzo L. Horne, Jr., and operated by James P. Horne. Plaintiff sustained bodily injuries when the motorcycle was involved in an intersection collision with an automobile driven by Gary Roark. Plaintiff first made claim against Roark who was covered by an automobile liability insurance policy issued by Southern Farm Bureau Insurance Company, with bodily injury coverage limited to $5,000 per person. Plaintiff settled with Roark for the sum of $4,500, reserving the right to pursue her claims against other persons.

Plaintiff then filed suit against State Farm Mutual Insurance Company on the uninsured motorists coverage of an automobile liability policy issued by State Farm to plaintiff's husband, Clyde Harthcock, Jr., in whose household she lived. She was an insured under the State Farm policy.

The State Farm policy provided uninsured motorists coverage. Plaintiff alleged that the motorcycle on which she was riding at the time of the accident was an uninsured vehicle; her damages in the amount of $50,000 resulted from the negligent operation of the motorcycle by James P. Horne; and she was entitled to recover from State Farm the limit of its uninsured motorists coverage, which was $5,000 per person. Plaintiff then filed a separate suit on the uninsured motorists coverage of a policy issued by Universal Underwriters Insurance Company to Lonzo L. Horne, Jr., on the motorcycle involved in the accident. The same allegations as to James P. Horne's negligence were made as in the suit against State Farm. The Universal policy provided that the bodily injury liability coverage of the policy did not apply 'to bodily injury to any person while on or getting on or alighting from the insured vehicle.' Plaintiff alleged that the motorcycle was an uninsured vehicle as defined in the uninsured motorists coverage of the policy; that she was an insured under uninsured motorists coverage of Universal's policy and was entitled to recover the limit of the uninsured motorists coverage, or $5,000.

The two suits against State Farm and Universal were consolidated for trial in the lower court and the circuit judge heard the cases without a jury, the parties having waived jury trial. The trial judge found both Roark, the driver of the automobile, James P. Horne, operator of the motorcycle, guilty of negligence and that plaintiff sustained damages of $14,500. He found that the motorcycle was an uninsured vehicle within the meaning of the statute relating to uninsured vehicles. He was of the opinion that State Farm's uninsured motorists coverage was applicable but that State Farm should be credited with the $4,500 received by plaintiff from the Roark settlement. He held State Farm liable to plaintiff in the sum of $500, and dismissed the suit as to Universal. Plaintiff appealed and State Farm cross-appealed. We reverse and enter judgment here in favor of plaintiff against State Farm for $5,000 and against Universal for $5,000 and affirm on cross-appeal.

The following questions are at issue and must be decided in order to dispose of the case.

I.

Was the motorcycle an uninsured vehicle?

One of the statutory definitions of an 'uninsured motor vehicle' is a motor vehicle as to which there is no bodily injury liability insurance. Mississippi Code 1942 Annotated section 8285-52 (Supp.1968).

The motorcycle was insured by Universal against bodily injury liability, but it excluded from the bodily injury coverage 'bodily injury to any person while on or getting on or alighting from the insured vehicle.' When claim was made against James P. Horne by plaintiff, Universal denied coverage. Universal's policy contains uninsured motorists coverage.

Code section 8285-51 requires that no automobile liability insurance policy shall be issued or delivered,

* * * (U)nless it contains an endorsement or provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages for bodily injury or death from the owner or operator of an uninsured motor vehicle, within limits which shall be no less than those set forth in the Mississippi Motor Vehicle Safety Responsibility Act, as amended, * * *.

There was no bodily injury liability insurance on the motorcycle available to plaintiff because it excluded riders. This Court said in Hodges v. Canal Insurance Co., 223 So.2d 630 (Miss.1969), that the provisions of the uninsured motorists statute must be construed from the perspective of the injured insured, from whose standpoint a tort-feasor operating an automobile with no insurance available is an uninsured motorist. But Universal and State Farm say that the intent of the uninsured motorists statute is to afford to the public generally the same protection that it would have if the uninsured motorist had in force the minimum bodily liability insurance required by the Mississippi Motor Vehicle Safety Responsibility Act, or $5,000 for one person and $10,000 for any one accident, and that the liability coverage on the joint tort-feasor, Roark, fulfills the requirement of the uninsured motorists statute and excludes the application of the uninsured motorists coverage in the State Farm and Universal policies.

There is nothing in our statute to suggest that the existence of Roark's liability insurance limits or extinguishes the coverage of the uninsured coverage provided by the State Farm and Universal policies. An injured person may recover damages only once, and one joint tort-feasor is released pro tanto upon payment by another joint tort-feasor of less than full damages. If plaintiff had been paid the full amount of her damages by Roark's insurer, she could not recover further damages from anyone. But the Roark settlement does not extinguish the coverage of the uninsured motorists insurance because plaintiff sustained uncollected damages of $10,000, after crediting the amount received from Roark. The discussion of the last question in this opinion is relevant to this question.

II.

Is State Farm or Universal Entitled to be Subrogated to the

extent of the sum paid plaintiff by Roark's insurer?

Section 8285-54 Mississippi Code 1942 Annotated (Supp.1968) is in part as follows:

An insurer paying a claim under the endorsement or provisions required by Section 1 (§ 8285-51) shall be subrogated to the rights of the insured to whom such claim was paid against the person causing such injury, death or damage, to the extent that payment was made; * * *.

The 'person causing such injury' within the meaning of this section is the uninsured motorist. The statute is not concerned with other joint tort-feasors. The protection afforded by the uninsured motorists coverage is not liability insurance. It affords no protection to the uninsured motorist. Its sole utility is to provide the injured party a means of collecting damages for his injuries; and rather than indemnifying the uninsured motorist, as does conventional liability insurance, it provides that the insurer paying the injured party is subrogated to the injured party's rights against the uninsured motorist to the extent that payment is made. State Farm and Universal are not entitled to be subrogated to plaintiff's claim against Roark, and the settlement of that claim did not diminish the uninsured motorists coverage.

III.

Is plaintiff precluded from recovering on the uninsured

motorists coverage because she settled with Roark

without the written consent of Universal

and State Farm?

Universal's policy contains the following exclusion with reference to the uninsured motorists coverage:

* * * to bodily injury to an insured with respect to which such insured, his legal representative or any person entitled to payment under this endorsement shall, without written consent of the company, make any settlement with any person or organization who may be legally liable therefor.

State Farm's policy contains a similar provision. Insofar as this exclusion applies to a tort-feasor other than the uninsured motorist, this provision is invalid. The insurer may not cut down on the coverage the statute requires. The statute intends to provide a source for the collection by the insured of all sums which he shall be legally entitled to recover as damages against the owner or operator of an uninsured motor vehicle. The coverage afforded by these policies is mandatory under the statute and may not be cut down by a policy exclusion. The...