Home Ins. Co. v. Williams

• Decision Date: 03 July 1972
• Docket Number: No. 5--5858,5--5858
• Citation: 252 Ark. 1012,482 S.W.2d 626
• Parties: HOME INSURANCE CO., Appellant, v. Carroll P. WILLIAMS, Individually and as Father and next friend of Bruce Williams, a Minor, Appellee.
• Court: Arkansas Supreme Court

Page 626

482 S.W.2d 626

252 Ark. 1012

HOME INSURANCE CO., Appellant, v. Carroll P. WILLIAMS, Individually and as Father and next friend of Bruce Williams, a Minor, Appellee.

No. 5--5858.

Supreme Court of Arkansas.

July 3, 1972.

Griffin Smith, Little Rock, for appellant.

Gordon & Gordon, Morrilton, for aplee.

OPINION ON REHEARING.

HOLT, Justice.

Appellee brought this action against appellant to enforce the uninsured motorist provision of appellant's policy issued to appellee. Appellee alleged that his minor son, Bruce, was crossing a public highway when he was struck by an uninsured automobile owned by Gene Darter and driven by James L. Ward. Appellant answered and denied that the vehicle involved was uninsured within the meaning of the policy and alleged that the accident and injuries resulted from the negligence of appellee's son. Appellant also secured a court order which required that appellee amend his pleadings to assert his claims against Darter and Ward and Ward's business partner as third party defendants pursuant to the Uniform Contribution Among Tortfeasors Act, Ark.Stat.Ann. § 34--1007 (Repl.1962.) In response, the appellee asserted that this joinder statute was inapplicable. Subsequently, appellant agreed that the joinder of the third party defendants under § 34--1007 was incorrect. Appellant asserted, however, that its joinder motion should have been predicated upon § 66--4006 (Repl.1966) which provides for subrogation up to the extent of any amount appellant paid under its uninsured motorist coverage. Upon trial date, the appellee successfully asserted that he was not required to join anyone as a third party defendant pursuant to § 66--4006 because it provides only for subrogation '(i)n the event of payment to any person under the coverage required by this section * * *.' A jury trial then resulted in a verdict for the appellee under the uninsured motorist provisions of the policy.

For reversal of that judgment appellant contends that it was an error for the trial court to dismiss the actual tort-feasors and to require appellant to defend alone. Appellant argues that under the provisions of the policy and through the dictates of fairness, the third parties allegedly responsible for appellee's damages should be made co-defendants by the appellee himself in any suit against appellant arising out of the uninsured motorist coverage. We find no merit in this contention. It is true that the policy issued by appellant provided for the 'Assistance and Cooperation of the Insured.' This clause states that 'in any action against the Company, the Company may require the Insured to join such person or organization as a party defendant.' However, this provision was not specifically pleaded, and it is relied upon for the first time on appeal. In Universal Life Ins. Co. v. Howlett, 240 Ark. 458, 400 S.W.2d 294 (1966), we said: 'In an action upon an insurance policy a general denial merely puts the plaintiff to his proof; an affirmative defense, such as an exception in the policy, must be specially pleaded.' See, also, Stucker v. Hartford Accident & Indemnity Co., 220 Ark. 472, 248 S.W.2d 383 (1952). In our view, it was necessary for the appellant to specifically invoke the 'cooperation' clause in the trial of the case. Instead, appellant sought to compel plaintiff-appellee to join the alleged tortfeasors pursuant to § 34--1007 and § 66--4006 which are inapplicable. Further, in Hartford Accident & Indemnity Co. v. Warren, 246 Ark. 323, 438 S.W.2d 31 (1969), it was asserted that a judgment against the uninsured motorist was a condition procedent to an action against the insurer under its uninsured motorist clause. In rejecting this argument, there we cited as controlling our decision in MFA Mutual Ins. Co. v. Bradshaw, 245 Ark. 95, 431 S.W.2d 252 (1968), where we held that an insured has the option of suing either his insurer or the uninsured motorist or both; also, that the insurer itself is not prevented from cross-complaining against the uninsured motorist, or proceeding by a separate action against an uninsured motorist after payment of a judgment in favor of its insured. Similarly, in the circumstances here, we deem that decision controlling. In the case at bar, the trial court correctly held that appellant-insurer could not compel the appellee-insured to join the alleged tortfeasors as co-defendants with appellant pursuant to either of the two statutes invoked by appellant.

However, as we have said, the appellant definitely has the right to make the alleged tortfeasors defendant by a cross-complaint. MFA Mutual Ins. Co. v. Bradshaw, supra. We observe that in appellant's motion to compel the appellee-insured to make the tortfeasors third party defendants appellant, also, alleged entitlement to a judgment over against them in the event a recovery resulted in...