Lawler v. Government Employees Ins. Co.

• Decision Date: 29 August 1990
• Docket Number: No. 07-CA-59093,07-CA-59093
• Citation: 569 So.2d 1151
• Parties: Jennifer Toney LAWLER v. GOVERNMENT EMPLOYEES INSURANCE COMPANY and Michael Bridwell.
• Court: Mississippi Supreme Court

Page 1151

569 So.2d 1151

Jennifer Toney LAWLER v. GOVERNMENT EMPLOYEES INSURANCE COMPANY and Michael Bridwell.

No. 07-CA-59093.

Supreme Court of Mississippi.

Aug. 29, 1990.

Rehearing Denied Nov. 7, 1990.

Earl L. Denham, Levi & Denham, Ocean Springs, for appellant.

Jay T. Golden, Fredrick B. Feeney, II, Franke Rainey & Salloum, Gulfport, for appellee.

En Banc.

SULLIVAN, Justice, for the Court:

This cause arises from a June 11, 1979, automobile accident in which Jennifer Toney Lawler, then age 17, was a passenger in an automobile owned and operated by Michael Bridwell, an uninsured motorist. While returning from New Orleans via Interstate 10, Bridwell's vehicle left the road near the Bay St. Louis or Diamondhead exit and collided with a bridge support. Because of the accident, Jennifer sustained serious and severe injuries which required approximately one month of hospitalization.

At the time of the accident, Jennifer's father, Leonard C. Toney, had an automobile insurance policy with GEICO in effect from August 8, 1978, through August 8, 1979. Among the coverages admitted under this policy on two covered vehicles was uninsured motorist coverage with a policy limit of $10,000 per person and $20,000 per accident. It appears that Jennifer qualified as an additional insured under that contract.

On November 6, 1982, Jennifer turned 21 years old. The record indicates that GEICO was first notified of this uninsured motorist accident by Jennifer on either December 30, 1985, or on March 3, 1986.

On May 5, 1986, Leonard Toney and Jennifer Toney Lawler filed suit against GEICO and Michael Bridwell in the Circuit Court of Jackson County. Jennifer sought personal injury damages while Leonard sued to recoup expenses incurred on behalf of his injured daughter.

GEICO moved for summary judgment, arguing the statute of limitations and that timely notice of the claim was not given. The Toneys filed a cross-motion for summary judgment. The Circuit Judge, after hearing oral arguments, granted GEICO's motion, holding:

that the Plaintiffs failed to provide the Defendant, Government Employees Insurance Company, with notice of the accident of June 11, 1979, until almost seven years after the accident, that the Plaintiffs' notice to Government Employees Insurance Company of the accident of June 11, 1979, was not given "as soon as practicable"...

In dismissing the Toneys' complaint against Bridwell, no grounds were stated.

WAS THIS CASE PROPER FOR SUMMARY DISPOSITION?

We have held that in cases which turn upon the construction of an insurance contract, summary judgment is appropriate where the contract is without material ambiguities. Willis v. Miss. Farm Bureau Mut. Ins. Co., 481 So.2d 256, 258 (Miss.1985). Because the insurance contract was not included in the record, it is impossible to determine whether or not the notice provision applied to the uninsured motorist coverage with no substantial ambiguities on material points. Therefore, this case was an inappropriate one for summary disposition.

Besides the obvious problem with interpreting something which is not in the record, the trial court's position is not tenable on other grounds as well. Where there In Harris v. American Motorist Insurance Company, 240 Miss. 262, 271, 126 So.2d 870, 874 (1961), this Court held, "[T]he question whether an insured in an action on a policy indemnifying him from liability or bodily injury or death, gave timely notice, 'as soon as practicable' is a question of fact to be determined by the jury or the chancellor." (Emphasis added), (Citations omitted). Continuing at 126 So.2d page 875, we held that the question of whether an insurance company had been prejudiced by the breach of the provision in the policy requiring timely notice, was also a question of fact. Because the questions of timely notice and prejudice were questions of fact for the jury to decide, the circuit judge erred in granting GEICO's motion for summary judgment.

is no genuine issue of material fact to be tried, the moving party is entitled to a summary judgment as a matter of law. However, the burden is on the party moving for summary judgment to establish that there is no genuine issue of fact. The nonmoving party receives the benefit of every reasonable doubt which exists as to whether a material issue of fact exists. Brown v. Credit Center, Inc., 444 So.2d 358, 362-63 (Miss.1983).

STATUTE OF LIMITATIONS

The manner in which the trial court construed the notice provision would allow insurance companies to contract around the statutory scheme imposed by our legislature. In Latham v. United States Fidelity & Guaranty Co., 267 So.2d 895 (Miss.1972), this Court recognized that insurance contracts are subject to the general six year statute of limitations (in effect at that time) and that any change in such limitations as made by contract stipulation is null and void as an attempt to prescribe a shorter period of limitations than the applicable statute of limitations.

Jennifer was 17 when she was injured in the automobile accident. She did not pass the age of infancy until she reached her 21st birthday, November 6, 1982. See Miss.Code Ann. Sec. 15-1-59 (Supp.1986). The applicable statute of limitations began to run against her at that time and did not expire until November 6, 1988. See Miss.Code Ann. Sec. 15-1-49 (Supp.1986) (six year state of limitations then in effect). From the record before us, GEICO was notified of this claim well within the statute of limitations. (Appellant says notice was given December 30, 1985; GEICO says March 3, 1986).

UM ACT

The trial court's holding is also contrary to the clear language and policy behind our Uninsured Motorist Act. Miss.Code Ann. Sec. 83-11-101 (Supp.1986), clearly and unambiguously provides:

No automobile liability insurance policy or contract shall be issued or delivered after January 1, 1967, unless it contains an endorsement or provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle.

As pointed out many times before, "[t]he terms and provisions of the Mississippi Uninsured Motorist Coverage Act are written into every automobile liability policy issued in the state." Stevens v. U.S. Fidelity & Guaranty Co., 345 So.2d 1041, 1043 (Miss.1977). Our UM statute is liberally construed so as to provide coverage. Harris v. Magee, 563 So.2d 583 (Miss.1990); Cossitt v. Nationwide Mutual Insurance Company, 551 So.2d 879 (Miss.1989); Wickline v. United States Fidelity And Guaranty Company, 530 So.2d 708 (Miss.1988); Brown v. Maryland Casualty Company, 521 So.2d 854 (Miss.1987); State Farm Mut. Auto. Ins. Co. v. Nester, 459 So.2d 787 (Miss.1984); Gov. Emp. Ins. Co. v. Brown, 446 So.2d 1002 (Miss.1984).

The policy and purpose behind this statute is to provide the same protection to one injured by an uninsured motorist as that individual would have if injured by a financially responsible driver. Stevens v. United States Fid. & Guar. Co., 345 So.2d 1041 (Miss.1977); Southern Farm Bureau Cas. Ins. Co. v. Roberts, 323 So.2d 536 (Miss.1975); Rampy v. State Farm Mutual Automobile Insurance Co. Quite simply, the nonprotection advocated by the trial court is contrary to the statutory language and the recognized purpose of our UM act. Our jurisprudence holds that we must enforce our UM Coverage Act as a valid expression of our legislature's interest in protecting innocent victims injured at the hands of financially irresponsible drivers. In recognizing this valid expression, we have consistently construed the Act to provide, not limit, protection.

278 So.2d 428 (Miss.1973). By the clear language of our UM Act, and this Court's construction of that statute, GEICO contracted to pay Jennifer for all sums which she would be legally entitled to recover as damages from Michael. Because Jennifer's cause of action against Michael Bridwell is not barred by our statutory scheme, her claim against GEICO is viable.

The bottom line is that in interpreting our UM Act, we have consistently held that the injured party should be treated as if injured by a responsible party. More importantly, our statute commands that the injured party shall be able to recover from the UM carrier "all sums which he shall be legally entitled to recover as damages for bodily injury or death from the owner or operator of an uninsured motor vehicle." Because our law allows Jennifer to sue Bridwell for damages, she is allowed to sue GEICO, the UM provider. Since uninsured motorist coverage was purchased, GEICO has an obligation to protect Jennifer as long as the claim against the uninsured motorist is permitted.

The summary judgment entered against Jennifer is reversed and this case is remanded for a new trial against Bridwell and GEICO.

REVERSED AND REMANDED.

HAWKINS and DAN M. LEE, P.JJ., and PRATHER and ANDERSON, JJ., concur.

ROBERTSON, J., ROY NOBLE LEE, C.J., and BLASS, J., dissent by separate opinion.

PITTMAN, ROBERTSON and BLASS, JJ., dissent by separate opinion.

ROBERTSON, Justice, dissenting:

I.

Today's appellant seeks to recover on the uninsured motorist coverage of her father's insurance policy, notwithstanding that she did not give her insurer notice of her claim for some six years and eight months after the claim-generating accident and some three years and four months after she turned twenty-one years of age. The Circuit Court dismissed her suit against the insurer, not on grounds of any statute of limitations but because of an heretofore-thought-enforceable policy provision requiring notice of claim as soon as practicable after a loss. I dare say there is no case known to the Anglo-American legal world that allows an insured to proceed after so tardy a notice--not, that is, until today. ¹

I suggest we've missed the boat. To say that timeliness of notice is a question of fact but begs the question. All questions courts decide are...