LeBlanc v. Allstate Ins. Co., 1831

• Decision Date: 11 January 1967
• Docket Number: No. 1831,1831
• Citation: 194 So.2d 791
• Parties: LeRoy LeBLANC, Plaintiff-Appellee, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 791

194 So.2d 791

LeRoy LeBLANC, Plaintiff-Appellee, v.ALLSTATE INSURANCE COMPANY, Defendant-Appellant.

No. 1831.

Court of Appeal of Louisiana, Third Circuit.

Jan. 11, 1967.

Rehearing Denied Feb. 15, 1967.

Dissenting Opinion Feb. 21, 1967.

Nicholls Pugh, Jr., of Pugh & Boudreaux, Lafayette, for defendant-appellant.

Rogers, McHale & St. Romain, by Phillip W. St. Romain, Lake Charles, for plaintiff-appellee.

Before FRUGE , SAVOY and CULPEPPER, JJ.

SAVOY, Judge.

This suit and a companion case, Marie Josephine Courville v. State Farm Mutual Automobile Insurance Company, 194 So.2d 797, were the outgrowth of a single automobile collision and, because they involve an identical issue of law, will be discussed together in this opinion.

The facts of the accident are not disputed and only a single issue of insurance law is presented for our decision.On October 27, 1963, a vehicle owned and operated by Lawrence Pellerin collided with an automobile owned and operated by Calvin Lee Deshotel.LeRoy LeBlanc, the plaintiff herein, was a guest passenger in the Deshotel vehicle and was injured in the collision.The husband of the plaintiff in the companion case, Joseph Clifford Courville, was also a passenger in the Deshotel automobile and was killed as a result of the collision between the two vehicles.The Pellerin automobile was uninsured, and on the trial it was established that the negligence of its driver was the sole and proximate cause of the accident.

State Farm Mutual Automobile Insurance Company was the insurer of the Deshotel vehicle, and it deposited the sum of $10,000.00, the limit of liability under the uninsured motorist provision of the Deshotel policy, into the Registry of the court to be distributed among the three claimants.In the distribution, the widow of Joseph Courville received $5,000.00, LeRoy LeBlanc $3,000.00, and Calvin Lee Deshotel $2,000.00.It was stipulated that the damages of LeRoy LeBlanc and Marie Courville were each in excess of $10,000.00.

At the time of the collision LeRoy LeBlanc was insured by Allstate Insurance Company as a passenger in a non-owned automobile under the provisions of the family policy covering his own automobile.In like manner, Joseph Courville was an insured under a policy of public liability insurance on his family automobile, which policy was written by State Farm Mutual Automobile Insurance Company.In the two instant suits LeRoy LeBlanc and the widow of Joseph Courville are suing the insurers of their respective family automobiles under the uninsured motorist coverage in the policies issued to each passenger.

The trial judge rendered judgment in favor of each plaintiff in the amount of $5,000.00, the policy limit for a single person under the uninsured motorist endorsement.The two insurance companies, State Farm Mutual and Allstate Insurance Company, have appealed, claiming that the distribution of the $10,000.00 fund deposited into the Registry of the court under the policy covering the automobile of Calvin Deshotel extinguished further liability under the LeBlanc and Courville policies, respectively.

Our research discloses no Louisiana case dealing precisely with the issue thus presented: Can a guest passenger who is injured through the negligence of an uninsured motorist and who collects a portion of his damages from the host driver's liability insurance carrier under the uninsured motorist coverage, also maintain an action against the passenger's own liability insurer under the uninsured motorist coverage of that policy?

Both insurers argue strongly that the policy of insurance covering the Deshotel vehicle was the primary policy and, under the 'other insurance' provisions of their respectve policies, the distribution of the entire policy limits under the Deshotel policy extinguished any claim which the plaintiffs might have under the uninsured motorist provisions of their respective policies.Each 'other insurance' clause provides substantially as follows:

'Other Insurance.With respect to bodily injury to an insured while occupying an automobile now owned by the named insured, the insurance under Part IV shall apply only as excess insurance over any other similar insurance available to such insured and applicable to such automobile as primary insurance, and this insurance shall then apply only in the amount by which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance.'

Since the limits of all three insurance policies in question are identical, the defendants contend that there is no 'excess coverage', and, therefore, no liability at all under their respective policies.

The provisions of LSA-R.S. 22:620 provide that all basic insurance policy forms shall be filed with and approved by the Commissioner of Insurance.The same statute recognizes the law and jurisprudence to the effect that any insurer may insert in its policy any provisions or conditions required by its plan of insurance or method of operation which are not prohibited by the provisions of the Insurance Code.In pertinent part, that statute provides as follows:

'(a) No basic insurance policy form * * * shall be issued, delivered, or used unless it has been filed with and approved by the commissioner of insurance.This Section shall not apply to policies, riders or endorsements designed to delineate the coverage for and used with relation to insurance upon a particular subject; nor which relates to the manner of distribution of benefits or to the reservation of rights and benefits under such policy, and which is used at the request of the individual policyholder, contract holder or certificate holder.Any insurer may insert in its policies any provisions or conditions required by its plan of insurance or method of operation which are not prohibited by the provisions of this Code.'

By the 1960amendment to LSA-R.S. 22:1406, the Legislature required all automobile liability insurance policies contain provisions for uninsured motorist coverage, unless rejected by the insured and again placed upon the Commissioner of Insurance the responsibility of approving the provisions of such uninsured motorist coverage.

Since the Commissioner of Insurance is charged with the administration and approval of such insurance provisions, great weight in the judicial interpretation of such provisions should be given to the construction consistently given it by the Commissioner.

In the instant case a stipulation was entered into as follows:

'It is agreed and stipulated by and between counsel for all parties to these consolidated proceedings, that if Mr. H. P. Walker were here present and testified in this case, and particularly in the case of 'LeBlanc v. Allstate' that he would qualify as an expert on insurance policies; that he is in the employ of the Louisiana Casualty and Rating Bureau, and that as such, and whose duty it is to approve and regulate insurance policies and the provisions of the policies, and that he was very familiar with the policies, and if asked for an opinion on other insurance coverage, of the other uninsured motorist provision of the family automobile policy, that he would testify as shown in Casualty and Surety Review, March 30, 1965 issue, from which the following excerpt is taken and that that is the official view of the Casualty and Surety Division of the Louisiana Insurance Rating Commission.

'In connection with the stipulation, by agreement, we offer and file and introduce into evidence the March 30 issue of the Casualty & Surety Review, and particularly the question relating to the other insurance coverage that is set out on page 2 of this booklet.'

On page 2 of the March 30, 1965 Review published by the Casualty & Surety Division of the Louisiana Insurance Rating Commission, the following appears:

'Question: We would like to ask you something that comes up frequently.Both person A and B have family automobile policies which provide uninsured motorist coverage in the obligatory limits of 5/10.Person A, while riding in Person B's automobile, is injured because of the negligence of an uninsured motorist, driving another automobile.

'Person A's injuries and also wages, etc., may exceed the uninsured motorist limit per person of $5,000.Can Person A look to his own family automobile policy insurer to provide uninsured motorist limits in excess of the $5,000 available to him from Person B's policy?

'Answer.The answer is in the negative.Unlike BI, PD, and Medical Payments coverages, the UM limits in Person A's policy do not apply as excess over the UM insurance afforded by Person B's policy.A change in the phraseology of the 'other insurance' clause in the uninsured motorist insuring agreement was made effective January 1, 1963.

'Nonetheless the new 'other insurance' phraseology was merely intended to clarify the intent that, in circumstances of this nature, Person A cannot recover as excess insurance the UM coverage from his own family automobile policy.'

The courts of this State have consistently recognized that interpretation placed upon statutes, rules and regulations by the administrators thereof will be accepted by the courts if they are reasonable and equitable.Roberts v. City of Baton Rouge, 236 La. 521, 108 So.2d 111; Bacon v. Reed (La.App., 4 Cir., 1961), 130 So.2d 141.

Under the 'other insurance' provisions of the LeBlanc policy, relating to injuries sustained while occupying an automobile not owned by the named insured, since the primary insurance was equal to the insurance provided in the LeBlanc policy, the primary policy effectively extinguished Allstate's liability under the LeBlanc policy.

This direct question has not been presented in Louisiana to an appellate court.It has, however, been presented to courts in other states.

One of the earliest decisions concerning the 'other insurance' provisions of an uninsured motorist clause was the case of Burcham v . Farmers Insurance...