Heavner v. Farmers Ins. Co., 57359
| Decision Date | 10 May 1983 |
| Docket Number | No. 57359,57359 |
| Citation | 1983 OK 51,663 P.2d 730 |
| Parties | Thomas J. HEAVNER, Appellant, v. FARMERS INSURANCE COMPANY, Farmer's Insurance Group and American Deposit Insurance Co., Appellees. (Two cases) |
| Court | Oklahoma Supreme Court |
Appeal from the District Court of Oklahoma County; John M. Amick, judge.
Insured is entitled to recover on uninsured motorist coverage if the actual amount received on liability coverage is less than uninsured motorist coverage.
REVERSED.
Rex D. Brooks, Oklahoma City, for appellant.
Roger D. Everett, Culp, Heath & Sushnik, Oklahoma City, for appellee, Farmers Ins. Co., Inc.
Michael E. Smith, King, Roberts & Beeler, Oklahoma City, for appellee, American Deposit Ins. Co.
On April 15, 1978, appellant, while a passenger in a car driven by Carlos H. Sturms, was injured in an accident with another automobile. Sturms was insured by appellees, Farmer's Insurance Company, Inc. and Farmer's Insurance Group, hereinafter referred to as "Farmers". Prior to the filing of the case at bar, Farmers admitted liability and filed an interpleader action naming appellant and the occupants of the other vehicle as defendants. As a result, appellant was awarded $4,500.00 of the $20,000.00 liability coverage available for distribution. Subsequently, appellant filed a "Release and Satisfaction" of judgment.
This action was later commenced by appellant to recover under the uninsured motorist provisions of Sturms' policy and under similar provisions of a policy issued by American Deposit Insurance Company, hereinafter referred to as "American", which named as the insured, appellant's sister-in-law with whom he resided. All parties filed Motions for Summary Judgment and the trial court granted appellees' motion.
On appeal, we are urged to interpret 36 O.S.Supp.1976 § 3636, to allow appellant to recover $5,000.00 from American and $5,500.00 from Farmers. Since the accident occurred in 1978, our interpretation will be limited to 36 O.S.Supp.1976 § 3636 even though the statute was amended in 1979.
We will first consider appellant's argument in regard to Farmers liability. Appellant attempts to "stack" the liability and uninsured motorist coverage under the same Farmer's policy. As previously noted, he was awarded $4,500 under the liability portion of the policy on which Sturms was named insured.
Appellant and appellee agree that appellant should be considered as an insured because he was occupying an insured motor vehicle.
Appellant then contends that since he is an insured he is eligible to collect the uninsured motorist benefits, provided in the policy. Appellee contends that under the policy definition of "uninsured motor vehicle", appellant is excluded from uninsured motor vehicle coverage. The policy provides:
"The term 'uninsured motor vehicle' shall not include:
(a) an 'insured motor vehicle', or
(b) a motor vehicle owned by the named insured ..." (emphasis added)
However, Subsection C of 36 O.S.Supp.1976 § 3636 provides:
"(c) For the purposes of this coverage the term 'uninsured motor vehicle,' shall include an insured motor vehicle where the liability insurer thereof is unable to make payment with respect to the legal liability of its insured within the limits specified therein because of insolvence or whose liability insurer for any reason either cannot or is not legally required to accord at least the per person coverage limits with respect to the legal liability of its insured, applicable to any injured party under any uninsured motorist coverage covering such injured party." (emphasis added)
Applying this statute to the instant case, Sturms' vehicle comes within its definition of an "uninsured motor vehicle". Because the liability insurer (Farmers) is not legally required to pay at least the per person coverage limits ($10,000.00) with respect to the legal liability of its insured, applicable to any injured party (appellant) under any uninsured motorist coverage covering such injured party, the Sturms' vehicle is considered to be uninsured. Farmers was legally obligated to pay to appellant only $4,500.00 under the liability coverage while the per person uninsured motorist coverage limit of the Farmers policy...
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