Lawrence v. Beneficial Fire & Cas. Ins. Co.

• Decision Date: 19 August 1968
• Docket Number: CA-CIV,No. 1,1
• Citation: Lawrence v. Beneficial Fire & Cas. Ins. Co., 444 P.2d 446, 8 Ariz.App. 155 (Ariz. App. 1968)
• Parties: Herbert C. LAWRENCE and Ola Mae Lawrence, his wife; Sam Van Dyke and Almaetie Van Dyke, his wife, Appellants, v. BENEFICIAL FIRE & CASUALTY INSURANCE COMPANY and Central Mutual Insurance Company, Appellees. 510.
• Court: Arizona Court of Appeals

Page 446

444 P.2d 446

8 Ariz.App. 155

8 Aria.App. 155 Herbert C. LAWRENCE and Ola Mae Lawrence, his wife; Sam Van Dyke and Almaetie Van Dyke, his wife, Appellants, v.BENEFICIAL FIRE & CASUALTY INSURANCE COMPANY and Central Mutual Insurance Company, Appellees.

No. 1 CA-CIV 510.

Court of Appeals of Arizona.

Aug. 19, 1968.

Rehearing Denied Sept. 27, 1968.

Harold Goldman and Charles H. Ripps, Phoenix, for appellants.

Gust, Rosenfeld & Divelbess, by Richard A. Segal, Phoenix, for appelleeBeneficial Fire & Casualty Ins. Co.

O'Connor, Cavanagh, Anderson, West over, Killingsworth & Beshears, by Thomas A. McGuire, Phoenix, for appelleeCentral Mutual Ins. Co.

FREY, Superior Court Judge.

This is an appeal by the plaintiffs(appellants) from a judgment granting defendants' (appellees')motion to dismiss and further granting summary judgment against plaintiffs' Count I for declaratory judgment as to the rights and duties of plaintiffs and defendants under the 'uninsured motorist' clause of a policy of insurance issued to plaintiffs by defendants.

The only issue involved is whether an unknown motorist proximately causing an accident should be deemed to be driving 'an uninsured highway vehicle' under an uninsured motorist provision of insurance policies which require 'physical contact' as a prerequisite to liability and where there has been no direct physical contact by the unknown motorist's vehicle with the insured's vehicle.The facts are without dispute:

On March 10, 1965, the Central Mutual Insurance Company issued its policy of insurance to Sam Van Dyke.This policy of insurance contained an uninsured motorist clause entitled 'Protection Against Uninsured Motorists Coverage.'On May 1, 1965, Beneficial Fire & Casualty Insurance Company issued an insurance policy to Herbert C. Lawrence, which policy contains an uninsured motorists clause substantially the same as the one contained in the Central Mutual policy.

On May 17, 1965, and while each of the above mentioned policies of insurance was in full force and effect, plaintiffsHerbert C. Lawrence, Ola Mae Lawrence and Almaetie Van Dyke were injured in a Ford automobile owned and operated by Herbert C. Lawrence.The proximate cause of the accident must be assumed to be the negligence and recklessness of an unknown motorist who, at a high rate of speed, overtook the vehicle in which the plaintiffs were riding and made a sharp right turn directly in front of them, forcing plaintiffs' vehicle to swerve off the roadway and into a telephone pole.

The incident was observed by an eyewitness whose affidavit avers to the fact that a 1955 or 1956 Dodge or DeSoto automobile was proceeding in a westerly direction in the center lane of East Buckeye Road in Phoenix.The plaintiffs' Ford automobile was proceeding in the same direction, in the curb lane.Suddenly the Dodge or DeSoto automobile made a right-hand turn directly in the path of the Ford, so as to go north on 1st Street.The Ford made a right turn to avoid colliding with the Dodge, but careened out of control, off the road and ran into a telephone pole.As a result of the collision, the passengers in the Lawrence automobile suffered severe injuries.

Both insurance policies contained the standard 'hit and run' vehicle clause to protect against damage by unknown motorists as a part of the 'uninsured motorists' coverage, to wit:

"Hit and run automobile' means an automobile which causes bodily injury to the insured, Arising out of physical contact of such automobile with the insured or with an automobile which the insured is occupying at the time of the accident, provided: (a) there cannot be ascertained the identity of either the operator or the owner of such 'hit and run automobile' * * *'.(Emphasis added)

The appellants contend that the 'Uninsured Motorists' coverage in the subject insurance policies contains 'conflicting and repugnant language' granting broad coverage in bold type or on the cover page and attempting to exclude coverage in the lower case type of the succeeding pages of the policies.It is contended by the appellants that an ambiguity is created when the aforementioned hit and run motorist coverage is read with the general liability coverage clause found on the cover page of the Central Mutual Insurance Compan's policy and similar language found in the body of the Beneficial Insurance Company policy, to wit:

'The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage, arising out of the ownership, maintenance or use of an owned automobile or a nonowned automobile * * *'.

And as to the Beneficial Insurance Company:

'* * * to pay all sums 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 injury' * * *'.

The essence of this appeal is the contention that the coverage which the ordinary layman might reasonably expect to receive based upon a reading of the above general liability paragraphs alone, has been whittled away by a series of definitions and sub-definitions with the result that the lack of clarity in the attempted exclusions should be construed against the insurers.

We are unable to agree with the contentions advanced by the appellants in this appeal.In fact, some are rather novel; i.e., that all qualifying material be disregarded unless contained in that portion of the policy summarizing the coverage.It appears to be acceptable industry practice that the general liability coverage clause usually found on the cover page or nearest under a bold-faced subheading, is subsequently limited by a series of definitions or conditions.If every condition or requirement of the contract were to be set out under headings entitled 'exclusions', 'limitations', or 'definitions', it would amount to a change in form only; which form has long been established in the insurance business.Such changes would, in all likelihood, be subject...