Higgins v. Nationwide Mut. Ins. Co.

• Decision Date: 30 August 1973
• Citation: 282 So.2d 301,291 Ala. 462
• Parties: In re Gwen HIGGINS, a minor v. NATIONWIDE MUTUAL INSURANCE CO. Ex parte NATIONWIDE MUTUAL INSURANCE COMPANY. SC 326.
• Court: Alabama Supreme Court

Page 301

282 So.2d 301

291 Ala. 462

In re Gwen HIGGINS, a minor v. NATIONWIDE MUTUAL INSURANCE CO.

Ex parte NATIONWIDE MUTUAL INSURANCE COMPANY.

SC 326.

Supreme Court of Alabama.

Aug. 30, 1973.

Rives, Peterson, Pettus, Conway & Burge and Edgar M. Elliott, III, Birmingham, for petitioner.

M. Clay Alspaugh, Birmingham, for respondent.

McCALL, Justice.

Nationwide Mutual Insurance Company, the insurer and the defendant in the trial court, petitioned us for a writ of certiorari to issue to the Court of Civil Appeals to review and reverse and adverse opinion of that court on the ground that a legal question of first impression in Alabama was involved. See Rule 39, Revised Rules of Practice in the Supreme Court, as amended, Appendix to Title 7, Code of Alabama, Recompiled 1958 (Cum.Sup.). Upon preliminary examination, we were of the opinion that the writ should issue and so granted the application.

The plaintiff, a minor daughter of the named insured in the defendant insurer's automobile liability policy, was also an insured under that policy. She was injured in a one vehicle accident while being transported as a student-passenger in an uninsured Jefferson County, Alabama, school bus allegedly as a result of the negligence of the bus driver. She sought to recover damages for her injuries under the uninsured motor vehicle provision in her father's automobile liability policy. For a better understanding of the facts in the case and the decision of the Court of Civil Appeals, see Higgins v. Nationwide Mutual Insurance Co., Civ. 57 (Ms.), decided on February 7, 1973.

The policy of insurance contains an express exclusion of 'an automobile which is owned by the United States of America, Canada, a state, a political subdivision of any such government or an agency of any of the foregoing,' from the definition of the term 'uninsured automobile,' as defined therein.

The Court of Civil Appeals held that the exclusion in the insurance contract was void. We have carefully reviewed the decision of the Court of Civil appeals, and it is our considered opinion that in its holding it has reached a correct result and the case is due to be affirmed.

Our Uninsured Motorist Act, Act No. 866 of the Legislature, Acts of Alabama, Regular Session, 1965, Vol. II, p. 1614, listed in the Recompilation as Tit. 36, § 74(62a) provides:

'No automobile liability or moter (sic) vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a 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 limits for bodily injury or death set forth in subsection (c) of Section 5, of the Motor Vehicle Safety-Responsibility Act (Code 1958, Title 36, Sec. 74(46)), under provisions 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, that the named insured shall have the right to reject such coverage; and provided further, that unless the named insured requests such coverage in writing, such coverage need not be provided in or supplemental to a renewal policy where the named insured had rejected the coverage in connection with the policy previously issued to him by the same insurer.'

The purpose of Act No. 866 is to provide coverage 'for the protection of persons insured thereunder' against injury, including death, caused by the wrongful act of an uninsured motorist. Gulf American Fire & Casualty Co. v. Gowan, 283 Ala. 480, 218 So.2d 688. While there may be argument for not including motor vehicles owned by the United States, Canada, a state or a political subdivision or agency of any of these, since governmental bodies are likely able to respond in damages, the fact remains that the Legislature did not provide this exclusion in the Act. It might have undertaken to do so, had it desired, Jones v. Southern Farm Bureau Casualty Co., 251 S.C. 446, 163 S.E.2d 306, but not having done so, it is mandatory that Act No. 866, the governing law be read into the policy contract as it exists. Where the inclusion of uninsured motorist coverage is mandatory under an act, unless specifically waived, the governing act states what the coverage shall include. Page v. Insurance Co. of North America, 256 Cal.App.2d 374, 64 Cal.Rptr. 89; Standard Accident Insurance Co. v. Gavin, 184 So.2d 229 (Fla.App.); Ampy v. Metropolitan Casualty Insurance Co., 200 Va. 396, 105 S.E.2d 839.

In 11 Am.Jur. Trials, § 6, p. 86, it is stated:

'Where a statute (an Act) requiring uninsured motorist coverage is broad and comprehensive in scope, it establishes as a matter of public policy that every bodily injury motor vehicle policy should provide uninsured motorist coverage; the code (Act) becomes in effect a part of every policy of insurance to which it is applicable, as if it were written out in full in the policy itself. * * *.' Hendricks v. Meritplan Insurance Co., 205 Cal.App.2d 133, 22 Cal.Rptr. 682.

Couch on Insurance, Second Edition, Vol. 12, § 45.625, p. 571 states:

'An uninsured motorist statute requiring uninsured motorist coverage enters into the contract of insurance as an implied term and forms a part thereof.' Citing among other cases Prosk v. Allstate Insurance Co., 82 Ala.App.2d 457, 226 N.E.2d 498, 25 A.L.R.3d 1294; Travelers Indemnity Co. v. Powell, (Fla.App.) 206 So.2d 244; Stevens v. American Service Mutual Insurance Co., (Dist.Col.App.) 234 A.2d 305; Allison v. Imperial Casualty & Indemnity Co., (Fla.App.) 222 So.2d 254; Rose v. Travelers Indemnity Co., 209 Va. 755, 167 S.E.2d 339; Travelers Indemnity Co. v. Williams, 119 Ga.App. 414, 167 S.E.2d 174; Progressive Mutual Insurance Co. v. Brown, (Fla.App.) 229 So.2d 645, quashed on other grounds (Fla.) 249 So.2d 429; Indiana Insurance Co. v. Noble, Ind.App., 265 N.E.2d 419.

In Safeco Insurance Co. of America v. Jones, 286 Ala. 606, 614, 243 So.2d 736, 742, the restriction on uninsured motorist coverage under consideration was a contractually imposed limit on the total amount recoverable, it more than one insurer became liable to pay under its policy. In rejecting the unauthorized attempt to limit coverage this court said:

'* * * (W)e cannot permit an insurer to avoid its statutorily imposed liability by its insertion into the policy of a liability limiting clause which restricts the insured from receiving that coverage for which the premium has been paid.'

Similary, an attempt to contract away the uninsured motorist coverage provided by law by excluding from coverage any amounts which were received by the insured from any other similar insurance, was held void and unenforceable in State Farm Mutual Automobile Insurance Co. v. Cahoon, 287 Ala. 462, 252 So.2d 619 (1971). There the appellant insurer sought to set off the amounts recovered or to be recovered under workmen's compensation insurance against the amounts due under its uninsured motorist coverage. We held there as in Safeco, supra, that such attempts to avoid the statutory liability of coverage were themselves void.

The Court of Civil Appeals in its opinion cites as authority, Vaught v. State Farm Fire & Casualty Co., 413 F.2d 539 (8th Cir.), which dealt with an exclusion in an uninsured motorist...