Lammers v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 22 March 1972
• Docket Number: 8 Div. 59
• Citation: 48 Ala.App. 36,261 So.2d 757
• Parties: Lovis C. LAMMERS v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., a Corporation.
• Court: Alabama Court of Civil Appeals

Page 757

261 So.2d 757

48 Ala.App. 36

Lovis C. LAMMERS v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., a Corporation.

8 Div. 59.

Court of Civil Appeals of Alabama.

March 22, 1972.

Perkins, Walker & Musgrove, Florence, for appellant.

Poellnitz, Cox, Robison, McBurney & Jones, Florence, for appellee.

ON APPLICATION FOR REHEARING

THAGARD, Presiding Judge.

Upon appellant's application for rehearing the original opinion is withdrawn and the following is substituted therefor:

This is an appeal by plaintiff in the trial court from a ruling sustaining defendant's demurrer to plaintiff's complaint and the resulting judgment of nonsuit entered by the court on plaintiff's motion.

Plaintiff sued defendant, who will hereinafter sometimes be referred to as State Farm, under the uninsured motorist provision of a personal injury and property damage liability policy issued by State Farm to her deceased husband, Coyle K. Lammers, on July 14, 1959, and subsequently renewed from year to year thereafter until the time of the alleged accident. It was alleged that her husband, Coyle K. Lammers, was the driver of the insured truck at the time of the accident in which she sustained injuries and he was killed.

The policy was made an exhibit to the complaint. The complaint contained two counts, the first charging her deceased hosband with negligence in proximately causing her injuries and the second with wantonness. The uninsured motorist clause sued upon reads:

'Coverage U--Bodily Injury to Insured. To pay all sums up to $10,000.00 which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injuries sustained by the insured, caused by accident and arising out of the ownership, maintance (sic) or use of such uninsured automobile.'

The complaint alleged, in effect, that because of the 'household exclusion' clause of the policy she was precluded from collecting from State Farm under the personal injury liability provision of the policy, wherefore, the vehicle was an 'uninsured' one and her husband an 'uninsured motorist' insofar as her claim was concerned. We should mention here that no other vehicle was involved in the accident and no other person was liable to plaintiff for her injuries.

There were eight grounds of demurrer, the first seven of which said, in substance, that from the complaint it affirmatively appeared that the motor vehicle in which the plaintiff was riding at the time of the accident causing her injuries was not an 'uninsured automobile' as defined in the definitions pertaining to the 'uninsured motorist' feature of the policy.

We hold that all of the grounds of demurrer except four and eight were good as to both counts of the complaint.

Appellant assigned only one error, viz: 'For that the Court erred in sustaining Appellee's demurrer to Appellant's complaint.'

The questions with which we are confronted are (1) whether that part of the definition of an 'uninsured automobile' reading, '. . . but the term 'uninsured automobile' shall not include; (a) an automobile owned by the named insured or any resident of the same household;' so conflicts with the statute requiring that all liability and property damage policies issued to residents of Alabama contain 'uninsured motorist' coverage, as to render said definition void as to persons injured while riding in the named automobile or any other automobile owned by the named insured or by any member of his family residing in the same household; and (2) whether the definitions in the policy of an 'insured automobile' and an 'uninsured automobile' are so repugnant as to create an ambiguity requiring a construction in favor of appellant.

The 'Uninsured Motorist Coverage' statute, being § 74(62a) of Tit. 36 of the 1958 Recompiled Code of Alabama of 1940, reads as follows:

'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 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 74(46) of this title, 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.'

Appellant contends that that part of the definition of an 'uninsured automobile' which excludes an automobile owned by the named insured or any resident of the same household is more restrictive than that of the statute next above quoted and therefore void and inoperative, and in support of her position cites Bowsher v. State Farm Fire and Casualty Company, 244 Or 549, 419 P.2d 606. The facts in the Bowsher case were that Bowsher, the owner of the automobile upon which appellee had issued a standard liability insurance policy which contained an 'uninsured automobile' coverage clause, suffered injuries while riding as a passenger in his own automobile, which was being driven at the time by one Simpson, who had no liability insurance in his own name, but while driving Bowsher's automobile with his permission was an insured under the terms of Bowsher's policy. But the bodily-injury liability insurance was not in force as to Bowsher because a clause in the policy specifically excluded him (as the named insured) from the right to recover under the personal liability coverage of the policy.

Bowsher, contending that, because of the family exclusion clause of the personal injury liability coverage, the automobile was an 'uninsured automobile' within the meaning of the 'Uninsured Motorist Coverage' of the policy, sued his insurance carrier and obtained a judgment in the trial court. Upon appeal the Supreme Court of Oregon, in affirming the judgment, said:

'Whether or not an automobile is 'insured' in such cases depends upon whether or not existing insurance is applicable to compensate the particular injured person asserting coverage. If, as to the particular injured person, there is no other insurance available, and his policy contains an 'uninsured-automobile' or 'uninsured-motorist' clause, then the company writing such a policy must come in and defend on their merits claims made against the company under such coverage.' (419 P.2d 608)

It is to be noted, however, that if the policy in the Bowsher case, supra, contained an 'exclusion by reason of ownership' definition similar to the one relied upon by the insurer in this case, the same is not referred to in the opinion of the Oregon Supreme Court. The court did say that:

'The problem in this case arises out of the exclusions and definitions contained in Bowsher's insurance policy. One of the definitions specifically defines his described automobile as an insured automobile. Since Bowsher was injured while riding in an 'insured' automobile, the company contends, he cannot claim coverage under a policy provision expressly written to protect him against injuries caused by operators of 'uninsured' automobiles.' (419 P.2d 607)

Evidently, the court based its opinion on the definition of an 'insured' automobile and not on an exclusionary provision in the definition of an 'uninsured' automobile, which differentiates the case from the one with which we are dealing.

More to the point is an Illinois case, decided by the Appellate Court of Illinois, Fifth District, styled Madison County Mutual Automobile Insurance Co. v. Goodpasture, 267 N.E.2d 31, cited by appellant, in which the appellate court held that the owner-insured under a personal injury liability policy containing 'uninsured automobile' coverage was entitled to recover under said coverage for injuries sustained by her while riding as a passenger in her insured automobile which was being operated at the time of the accident, with her permission, by one John Wright. The 'Uninsured Automobile' definition recited that, '; . . . but the term 'uninsured automobile' shall not include: (i) an insured automobile . . .'; and an 'insured automobile', as to the 'uninsured automobile' coverage, was defined as 'an insured automobile to which the bodily injury liability coverage of the policy applies; . . .'

Apparently, this is a case of first impression in Alabama. Neither appellant nor appellee cites an Alabama case directly in point. Appellant says in her brief that she has found no Alabama case in point and only three cases in other jurisdictions that are somewhat similar in their facts. Two of them are the Bowsher case, supra and the Goodpasture case, supra, and the third was a Grorgia case that was decided solely on the basis of the Georgia Uninsured Motorist Statute that specifically defined an uninsured motor vehicle as follows: 'The term uninsured motor vehicle means a motor vehicle other than a motor vehicle owned by or furnished for the regular use of the named insured, the spouse of any such named insured . . ..'

In cases of first impression in Alabama we believe it our duty to draw upon well established principles that have been long adhered to by our Supreme Court, if they provide a solution to the problem, before going to the law of other states for guidance. Furthermore, we conclude from a review of Alabama ...