Herrick v. Liberty Mut. Fire Ins. Co., 41753

Decision Date17 January 1979
Docket NumberNo. 41753,41753
Citation202 Neb. 116,274 N.W.2d 147
PartiesArden E. HERRICK and Paul D. Herrick, Appellants, v. LIBERTY MUTUAL FIRE INSURANCE COMPANY, a Foreign Corporation, et al., Appellees.
CourtNebraska Supreme Court

Syllabus by the Court

An exclusion in an automobile liability insurance policy which excludes coverage under uninsured motorist coverage for an insured while occupying an owned highway vehicle, other than an insured automobile, is valid.

Warren C. Schrempp and Thomas G. McQuade of Schrempp & McQuade, Omaha, for appellants.

D. Nick Caporale and Michael A. Nelsen of Schmid, Ford, Mooney, Frederick & Caporale, Omaha, for appellees.

Heard before SPENCER, C. J., Pro Tem., BOSLAUGH, McCOWN, CLINTON, BRODKEY and WHITE, JJ., and KUNS, Retired District Judge.

BOSLAUGH, Justice.

This is a suit on the medical expense and uninsured motorist coverage provided by an automobile liability insurance policy issued by the defendant, Liberty Mutual Fire Insurance Company, to Arden E. Herrick and Betty J. Herrick, the parents of the plaintiff, Paul D. Herrick. The policy insured a 1963 Chevrolet automobile owned by the named insureds.

The plaintiff was injured on July 7, 1975, when the 1973 Kawasaki motorcycle which he owned and was operating was in collision with a 1973 Dodge automobile owned by Dorothy L. Colwell and being operated by Jeannine G. Harvey. There was no liability insurance on the 1973 Dodge automobile at the time of the accident and Jeannine G. Harvey was an uninsured motorist.

The plaintiff appeals from an order sustaining a general demurrer of the defendant insurance company and dismissing the action as to that defendant.

With respect to the claim under the medical expense coverage, the policy provided coverage to the named insured or a relative "while occupying the owned automobile." Since the accident occurred while the plaintiff was occupying an owned vehicle which was not "the owned automobile" described in the policy, the medical expense coverage was not applicable. The plaintiff does not contend otherwise in this court.

With respect to the uninsured motorist coverage, the policy contained the following exclusion: "Exclusions This policy does not apply: * * * Under the Uninsured Motorists Coverage, (q) to bodily injury to an insured while occupying a highway vehicle (other than an insured automobile) owned by the named insured or by any person resident in the same household who is related to the named insured by blood, marriage or adoption, or through being struck by such a vehicle; * * * ."

In Shipley v. American Standard Ins. Co., 183 Neb. 109, 158 N.W.2d 238, the plaintiff was operating an uninsured motorcycle when he was injured in a collision with another motorcycle operated by an uninsured motorist. We held that the plaintiff could not recover under the uninsured motorist coverage of a policy which insured a Chevrolet automobile owned by the plaintiff and excluded coverage for "bodily injury to an insured while occupying an automobile (other than an insured automobile) owned by the named insured * * * ." We said: "An uninsured motorist endorsement should be interpreted in light of statutory requirements concerning victims of negligent and financially irresponsible motorists. " The uninsured motorist on the highway is a real risk. " Stephens v. Allied Mut. Ins. Co., 182 Neb. 562, 156 N.W.2d 133. An overriding public policy of protecting an owner-operator who inexcusably has no applicable bodily injury liability coverage is not presently discernible.

"An insurance contract should be interpreted in accordance with reasonable expectations of the insured at the time of the contract. See Stephens v. Allied Mut. Ins. Co., supra. Plaintiff does not assert that he had bodily injury liability coverage applicable to his motorcycle under any contract. He...

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12 cases
  • Boardman v. United Services Auto. Ass'n
    • United States
    • Mississippi Supreme Court
    • May 22, 1985
    ...policy terms. 20. Nebraska law appears to uphold the "owned vehicle" exclusionary clause. See Herrick v. Liberty Mutual Fire Insurance Company, 202 Neb. 116, 118-19, 274 N.W.2d 147, 148-49 (1979); Shipley v. American Standard Insurance Company of Wisconsin, 183 Neb. 109, 111-12, 158 N.W.2d ......
  • Nationwide Mut. Ins. Co. v. Hampton
    • United States
    • U.S. Court of Appeals — Third Circuit
    • May 31, 1991
    ...A.2d 1188 (Me.1985); Beliveau v. Norfolk & Dedham Mut. Fire Ins. Co., 120 N.H. 73, 411 A.2d 1101 (1980); Herrick v. Liberty Mut. Fire Ins. Co., 202 Neb. 116, 274 N.W.2d 147 (1979); Arguello v. State Farm Mut. Auto. Ins. Co., 42 Colo.App. 372, 599 P.2d 266 (1979); Employers' Fire Ins. Co. v.......
  • Dullenty v. Rocky Mountain Fire and Cas. Co.
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    • Idaho Supreme Court
    • June 4, 1986
    ...10, 221 N.W.2d 151 (1974); Lowery v. State Farm Mutual Automobile Ins. Co., 285 So.2d 767 (Miss.1973); Herrick v. Liberty Mut. Fire Ins. Co., 202 Neb. 116, 274 N.W.2d 147 (1979); Chavez v. State Farm Mutual Automobile Ins. Co., 87 N.M. 327, 533 P.2d 100 (1975); Ady v. West American Ins. Co.......
  • Hammon v. Farmers Ins. Group
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    • November 29, 1984
    ...Ark. 514, 495 S.W.2d 155 (1973); Safeco Insurance Co. of America v. Hubbard, 578 S.W.2d 49 (Ky.1979); Herrick v. Liberty Mutual Fire Insurance Co., 202 Neb. 116, 274 N.W.2d 147 (1979); Beliveau v. Norfolk & Dedham Mutual Fire Insurance Co., 120 N.H. 73, 411 A.2d 1101 (N.H.1980); Employers F......
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