Jones v. Morrison
| Decision Date | 10 June 1968 |
| Docket Number | Civ. A. No. 1051. |
| Citation | 284 F. Supp. 1016 |
| Parties | James B. JONES, Plaintiff, v. Charles MORRISON, Otis Cupit, United States of America, Federal Insurance Company, and Southern Farm Bureau Casualty Insurance Company, Defendants, Liberty Mutual Insurance Company, Intervenor, Federal Insurance Company, Intervening Plaintiff. |
| Court | U.S. District Court — Western District of Arkansas |
Tom Gentry, Little Rock, Ark., for plaintiff.
Fenton Stanley, Malvern, Ark., for Morrison & Cupit.
Shaver, Tackett & Jones, Texarkana, Ark., for Southern Farm Bureau Cas. Ins. Co.
Wootton, Land & Matthews, Hot Springs, Ark., for Liberty Mutual Ins Co.
Wright, Lindsey & Jennings, Little Rock, Ark., for Federal Ins. Co.
On April 11, 1968, the court filed an opinion herein and entered a judgment in favor of the plaintiff and against all defendants except the United States, the complaint against which was dismissed. This memorandum and judgment is being filed as an amendment and supplement to the earlier opinion and judgment.
As set forth in the first opinion, the plaintiff was injured as a result of the negligence of an uninsured motorist who was employed by and at the time acting on behalf of another uninsured.
At the time of the accident the plaintiff was driving a vehicle owned by his employer, which was insured by virtue of a policy issued by the Federal Insurance Company. Also, at the time of the accident the plaintiff was the owner of three vehicles, each of which was insured by separate policies issued by Southern Farm Bureau Casualty Insurance Company. All of the policies in question contain "uninsured motorist" protection. The attorneys for Federal Insurance Company and Southern Farm admitted at the trial that Morrison, the driver of the truck with which plaintiff collided, and also Cupit, the owner of the truck, were uninsured motorists.
At the conclusion of the testimony the case was taken under consideration and the parties were requested to submit memoranda in support of their respective contentions, and after a consideration of all the evidence and briefs of the parties, the court found that Morrison was guilty of negligence which was a proximate cause of the collision of the automobile being driven by plaintiff Jones, but also found that Jones was guilty of negligence in a lesser degree in the driving of the automobile which was likewise a proximate cause of the collision. The court found that the plaintiff, Jones, was damaged in the amount of $25,000, which included medical expenses, etc.
Since the plaintiff was guilty of negligence, although of a lesser degree than the negligence of Morrison, the court was required under the provisions of Ark.Stat.Ann. § 27-1730.1, to compare the negligence of the plaintiff and the defendant Morrison, and the court fixed Morrison's negligence at 60 percent and Jones' negligence at 40 percent, and thus the $25,000 damage suffered by Jones was required to be reduced by 40 percent, or to $15,000. The court also found that the automobile which plaintiff was driving and which was insured by Federal Insurance Company was damaged to the extent of $2,250, but the salvage amounted to $609.50, leaving $1,640.50 damage to the automobile, but because Federal's right of recovery was derivative from plaintiff, this amount was reduced by 40 percent, leaving the sum of $984.30 due Federal Insurance.
Liberty Mutual Insurance Company was the compensation carrier of plaintiff Jones, and as a result of said insurance was required to pay $1,297.66 medical expense and disability benefits. Liberty Mutual was entitled to recoup its expense pursuant to Ark.Stat.Ann. § 81-1340.
At the time of the filing of the opinion on April 11, 1968, the court did not undertake to apportion the liability between the companies, but stated in the opinion:
The insurance companies were unable to agree, but prior to any motion by the plaintiff, both insurance companies filed notices of appeal — Southern Farm on May 10, 1968, and Federal three days later. On May 17, 1968, the court wrote counsel for the two companies, with copy to counsel for the plaintiff, advising that it was doubtful that the court could apportion the liability after the notices of appeal were filed. The letter also contained citations 28 U.S.C.A. §§ 1291, 1292; Smith v. United States (8 Cir. 1964), 332 F.2d 731; Smith v. Sherman (8 Cir. 1965), 349 F.2d 547; Benada Aluminum Products Co. v. Home Insurance Co. (5 Cir. 1966), 368 F.2d 1001 which strongly indicate that the judgment entered herein is not appealable at this time because of the failure of the court to settle the apportionment question.
On May 20, 1968, the plaintiff filed his motion for apportionment. Likewise, on May 24, 1968, Federal Insurance filed its motion for apportionment, and on May 31, Southern Farm filed its reply to the motion for apportionment filed by Federal Insurance.
At the time of the accident the plaintiff, James B. Jones, was employed by Local 382 of the International Union of Operating Engineers and was driving a vehicle owned by that organization. Federal Insurance had issued a liability and collision policy which was in force covering the vehicle being driven by Jones. The policy also provided uninsured motorist protection in the amount of $10,000 for any one "insured", which term concededly applied to Jones.
Also at the time of the accident there were in force three other liability policies issued by Southern Farm covering three vehicles owned by Jones. Each of these policies contained uninsured motorist protection identical to that provided by Federal Insurance. It is not disputed that Jones is, and was, at the time of the accident an "insured" within the meaning of these three policies.
In its "Motion for Apportionment" Federal Insurance contends that since there were in force four policies, all providing the same coverage, that it is liable only for one-fourth of the total applicable limits of liability of the two companies.
Southern Farm in its reply contends that Federal Insurance is the "primary insurer," and that as such its coverage, $10,000, should be exhausted before Southern Farm, whose coverage is "excess," should be required to contribute. The court agrees with the contention of Southern Farm.
As previously stated, the uninsured motorist coverage in each of the four policies is set forth in identical terms. With respect to "other insurance" the policies state:
Jones was operating a vehicle "not owned" by a named insured under the Southern Farm policies. The vehicle belonged to Local 382. Therefore, the first paragraph of the "other insurance" clause applies to the Southern Farm policies and its insurance is "excess."
Because the first paragraph is limited to the operation of a vehicle not owned by a named insured, it does not apply to Federal Insurance, whose liability must be ascertained from the remaining paragraphs in the clause.
Relying on the second paragraph, Federal Insurance contends that the liability should be prorated and that it is liable for one-fourth of Jones' damage because its coverage ($10,000) represents one fourth of the total insurance available ($40,000).
The extent to which insurance companies complicate and confuse the wording of their policies in an attempt to limit their liability wherever possible is amazing. This is the situation which has developed in the field of uninsured motorist coverage which is relatively new to the insurance industry. However, there is no reason why accepted principles relative to "other insurance" should not apply to "uninsured motorist" coverage as well as to liability coverage.
In the opinion of the court the solution to this problem is correctly stated in Appleman, Insurance Law and Practice, Vol. 8, § 4914, pp. 400-402, where the learned author states:
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