Insurance Co. of North America v. Thomas
| Decision Date | 07 July 1976 |
| Citation | 337 So.2d 365 |
| Parties | INSURANCE COMPANY OF NORTH AMERICA v. Gilbert W. THOMAS and State Farm Mutual Automobile Insurance Company. Civ. 762. |
| Court | Alabama Court of Civil Appeals |
McDaniel, Hall, Parsons & Conerly, Birmingham, for appellant.
Rives, Peterson, Pettus, Conway, Elliott & Small, Birmingham, for appellees.
This is a case involving Alabama's statutory requirement of uninsured motorist insurance coverage, Title 36, Section 74(62a), Code of Alabama 1940. Defendant, Insurance Company of North America (INA), appeals from a judgment of the Circuit Court of Jefferson County, awarding plaintiff-appellee Thomas $8,062.50 including interest.
The circumstances involved are as follows:
On May 28, 1974 Thomas was driving a truck owned by Grady Simmons and leased to Eagle Motor Lines, Inc., when he was involved in an accident with Steven Gillespie, an uninsured motorist. Thomas suffered substantial bodily injury. The trip on which Thomas was then embarked had been dispatched by Eagle; Thomas had no written contract with Eagle but was operating under an agreement whereby Thomas received twenty percent of payment received for deliveries, Simmons sixty-five percent, and Eagle fifteen percent. Prior to May 28, Thomas had received one check in payment of his percentage: the check came from Grady Simmons. Prior to working for Simmons, Thomas had entered two other contractual relationships which had kept him in regular contact with Eagle since 1968: for a time Thomas had leased his own truck to Eagle; later he had driven for Harold Phillips, whose truck was leased to Eagle. Thomas has never owned stock in or been an officer of Eagle.
At the time of the accident, Thomas had a policy with State Farm Mutual Automobile Insurance Company which provided uninsured motorist benefits. Eagle had a liability insurance contract with INA which did not contain an uninsured motorist endorsement, and which was an excess policy with a $25,000 self-retained limit.
Thomas initiated the present case on August 19, 1974 by filing suit claiming damages for bodily injury against his own insurer, State Farm. Subsequently, State Farm filed a third-party complaint against Gillespie.
On January 19, 1975 the complaint was amended to add INA as a defendant. The amendment alleged that Thomas was a third-party beneficiary of the INA policy carried by Eagle, that the INA policy covered the truck driven by Thomas on May 28, 1974, and that the state law of Alabama required the INA policy to contain provisions for uninsured motorist coverage in Thomas's favor.
The defendant, INA, filed a motion to dismiss, which was overruled on January 21, 1975.
INA then filed its answer to plaintiff's complaint denying that the plaintiff was a beneficiary to the contract issued to Eagle by INA; denying that uninsured motorist protection for the plaintiff was written into said policy under the law of Alabama; denying that the plaintiff was entitled to recover damages from INA; setting forth that the contract between INA and Eagle was strictly an excess policy over and above the $25,000 self-retained limits; that the defendant was not an insured under said excess contract and was therefore not entitled to uninsured motorist protection; denying that the law of Alabama required uninsured motorist coverage for the plaintiff under this particular contract of insurance; and alleging that the uninsured motorist was not guilty of negligence, but that the plaintiff was himself guilty of contributory negligence.
INA filed a motion for summary judgment on October 31, 1975, reiterating several of the grounds contained in its answer. Additionally, INA submitted the affidavit of William C. Wilson, the INA agent who negotiated Eagle's policy. The affidavit stated that there was a specific rejection of uninsured motorist coverage by Eagle, and no premium for uninsured motorist coverage was paid.
On November 18, 1975 the case came up for trial. Before striking a jury, a hearing on the motion for summary judgment was heard, including testimony from Thomas and Wilson, and introduction, over INA's objection, of a 1965 memorandum from the superintendent of insurance requiring that rejection of uninsured motorist coverage be in writing. The trial judge overruled the motion for summary judgment.
Subsequent to that ruling, various cross claims and counterclaims were filed by the parties. INA's counterclaim against Thomas was stricken prior to the trial on the merits of the case.
At the trial before a jury Thomas repeated most of the testimony he had given at the summary judgment hearing. There was also additional testimony, stipulations, and motions. Verdict was rendered in the amount of $7,500 plus $562.50 interest.
State Farm then moved for judgment, alleging that they provided excess coverage only, and that INA was primarily liable. The trial judge held that INA was primarily liable for the first $10,000 of the verdict and entered judgment accordingly. INA excepted to the judgment.
This appeal calls for review only of questions relating to the coverage of the INA policy. These questions below were determined by the trial judge and not by the jury. We do not address ourselves to matters contained in the jury verdict.
On appeal INA argues first that the Alabama uninsured motorist coverage statute, Title 36, Section 74(62a), Code of Alabama 1940, does not provide that such coverage is implicitly written into the policy in question, which makes no express mention of such coverage. The statute says, in pertinent part:
'No automobile liability or motor 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 . . . unless coverage is provided therein or supplemental thereto, . . . under provisions approved by the commissioner of insurance, for the protection of persons insured thereunder . . . from owners or operators of uninsured motor vehicles . . . provided, that the named insured shall have the right to...
To continue reading
Request your trial
-
Auto-Owners Ins. Co. v. Hudson, AUTO-OWNERS
...insurance company is required to provide uninsured/underinsured coverage in an automobile liability policy. Insurance Co. of North America v. Thomas, 337 So.2d 365 (Ala.Civ.App.1976). While the issue of impairment of subrogation rights in an uninsured/underinsured motorist setting has been ......
-
Romero v. Dairyland Ins. Co.
...and was fully aware that the policy did not specifically provide for uninsured motorist coverage. See also Insurance Co. of N. Am. v. Thomas, 337 So.2d 365 (Ala.Civ.App.1976) (oral rejection invalid when memorandum of insurance commissioner required rejection of uninsured motorist coverage ......
-
Browder v. General Motors Corp.
...is not compulsory and may be rejected by the insured. See Ala Code § 32-7-23 (1975); Best, 540 So.2d at 1382; Insurance Co. of N. Am. v. Thomas, 337 So.2d 365 (Ala.Civ.App.1976); State Farm Mut. Auto. Ins. Co. v. Martin, 292 Ala. 103, 289 So.2d 606 (1974). Without the benefit of the contrac......
-
Star Freight, Inc. v. Sheffield
...insurance company is required to provide uninsured/underinsured coverage in an automobile liability policy. Insurance Co. of North America v. Thomas, 337 So.2d 365 (Ala.Civ.App.1976)." See also Sprouse v. Hawk, 574 So.2d 754 In this case, the parties admit that Liberty Mutual paid the $60,0......