Lefeve v. State Farm Mut. Auto. Ins. Co., Civ. A. No. 80-G-0885-NW.

• Decision Date: 24 August 1981
• Docket Number: Civ. A. No. 80-G-0885-NW.
• Citation: 527 F. Supp. 492
• Court: U.S. District Court — Northern District of Alabama
• Parties: David A. LEFEVE, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation; State Farm Fire & Casualty Insurance Company, a corporation, Defendants.

527 F. Supp. 492

David A. LEFEVE, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation; State Farm Fire & Casualty Insurance Company, a corporation, Defendants.

Civ. A. No. 80-G-0885-NW.

United States District Court, N. D. Alabama, Northwestern Division.

August 24, 1981.

John D. Clement, Jr., Tuscumbia, Ala., for plaintiff.

Robert O. Cox, Poellnitz, Cox, McBurney & Jones, Florence, Ala., for defendants.

MEMORANDUM OPINION

GUIN, District Judge.

This case arises out of an automobile accident which occurred on June 30, 1980, in Waverly, Tennessee. The plaintiff, David Lefeve, was a passenger in an automobile operated by Scott Folks, and owned by Charles Folks, which was involved in an accident with an automobile owned by Beverly Scurlock and operated by Randy Duke. The plaintiff suffered severe and crippling injuries as a result of this accident, and seeks to recover under policies providing uninsured motorist coverage which are available to him. In order to do so, plaintiff alleges that Randy Duke was negligent and that the automobile operated by Randy Duke was uninsured.

By agreement of the parties, this case was submitted to the court on the issue of coverage alone upon the depositions, exhibits, and briefs submitted by counsel. After reviewing those documents and applicable law, the court finds that judgment is due to be granted the defendants for the reasons stated herein.

In order to understand the contentions of the parties, it is necessary to establish the relationship between the parties and the insurance policies involved. The plaintiff claims coverage under four policies of liability insurance issued by the defendant State Farm Fire & Casualty Insurance Company State Farm Fire to Harold L. Scott, the stepfather of the plaintiff and with whom the plaintiff resided at the time of the accident. By the terms of those policies, the plaintiff thus qualifies as an insured within the meaning of the uninsured motorist provisions of these policies, which provide protection with limits of $10,000.00 per person per policy.

The plaintiff also claims coverage under the liability insurance policy issued by the defendant State Farm Mutual Automobile Insurance Company State Farm Mutual to the owner of the car in which the plaintiff was riding. That policy also provides uninsured motorist protection for any person who might be injured by an uninsured motorist while occupying said automobile, with limits of $10,000.00 for each person.

The automobile which collided with the car in which the plaintiff was riding was owned by Beverly Little Scurlock and was insured by Tennessee Farmers Mutual Insurance Company. The driver of the car, Randy Duke, was employed by Mrs. Scurlock's husband, Tommy Scurlock, and his partner, Robert Romer. The Scurlocks, who were out of town at the time of the accident, had given Duke permission — though perhaps limited — to drive the car to and from work.

The parties have agreed that Tennessee law applies to determine the issue of liability of the driver and the owner of the car which collided with the car in which the plaintiff was riding, and further have agreed that Alabama contract law governs the issue of coverage under the uninsured motorist provision of the policies.¹

The only issue before the court is whether coverage is provided the plaintiff under the uninsured motorist provisions of the four State Farm Fire policies and the one State Farm Mutual policy in question. It is not disputed that the plaintiff was an "insured" within the meaning of the uninsured motorist provisions of those policies. The issue centers on whether the automobile driven by Randy Duke qualifies as uninsured within the meaning of those provisions.

The definitive terms of all four policies issued by State Farm Fire are identical and the definitions contained in the State Farm Mutual policy do not significantly differ. The definition of an uninsured motor vehicle, as contained in the State Farm Fire policies, basically provides that an uninsured motor vehicle means:

1. a motor vehicle, the ownership, maintenance or use of which is:

a) not insured; or

b) insured, but

(1) the limits of liability are less than required by state law; or

(2) the insuring company denies coverage or is insolvent; or

2. a "hit and run" vehicle whose owner or driver remains unknown.

The State Farm Mutual policy contains the above definition, plus additional definitions which are inapplicable to this situation.²

The court finds that the Scurlock automobile which injured the plaintiff falls outside the policy definition of uninsured motor vehicle in that the "ownership, maintenance or use" of the vehicle was in fact insured by Tennessee Farmers Mutual. Furthermore, the insurance is within the limits required by Alabama law,³ the insurance company has not denied coverage and is not insolvent, and it was not a hit and run accident.

Also, under Alabama statutory and decisional law, the vehicle in question was not uninsured. By statute, every motor vehicle liability policy issued or delivered in Alabama covering automobiles registered or garaged in the state must provide "insurance for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles ...." Code of Alabama 1975, § 32-7-23 (emphasis added).⁴ Although the statute itself does not define uninsured motor vehicle, the Alabama Supreme Court stated that the term is "`ordinarily defined to include motor vehicles with respect to which neither the owner nor the operator carries bodily injury liability insurance, and "hit and run" automobiles.' 7 Am.Jur.2d Automobile Insurance, § 136, p. 462; 79 A.L.R.2d 1253." Higgins v. Nationwide Mutual Insurance Co., 291 Ala. 462, 282 So.2d 301, 305 (1973) (emphasis added).

The plaintiff in brief relies upon a portion of the following definition employed by the Alabama Supreme Court in Wilbourn v. All-state Insurance Co., 293 Ala. 466, 305 So.2d 372 (1974):

It is well-settled and common knowledge that a motorist or vehicle carrying no liability insurance is "uninsured." Courts have also found motorists were "uninsured," in other situations: (1) policy limits are below the statutory minimum, (2) the policy fails to cover the injury involved, (3) the insurer becomes insolvent after the policy is issued so there is no insurance applicable to, or at the time of, the accident, (4) the owner or operator of the vehicle is unknown, commonly classified as a "hit-and-run" case.

305 So.2d at 373-74.

The plaintiff emphasized the second of the included circumstances — that the policy fails to cover the injury involved — to support his contention that the vehicle which injured him was uninsured. The Alabama court did not elaborate on what it meant by an injury not covered by the policy, and the plaintiff failed to convincingly show how or why his injury is not covered by the Tennessee Farmers Mutual policy. Generally, courts have found an injury not to be covered by a policy in the particular circumstances where the insurance policy expressly excluded coverage of the injury, the vehicle or the driver, or where the vehicle involved was operated without the consent or permission of the owner. See, Annot., 26 A.L. R.3d 883, 897-900 (1969). Attempting to show that his injury is not covered by the Tennessee Farmers Mutual policy, the plaintiff contends that Duke was driving the car without the permission of the owner. Such is not the case since Tommy Scurlock, the owner's husband and an insured within the terms of the policy, gave Duke at least limited permission to drive the car to and from work. The testimony of Duke and Scurlock differs as to what, if any, restrictions were placed upon the use of the car. Regardless of whether conditions were placed upon Duke's use of the car, the court finds from the facts discussed further in the opinion that Duke had at least limited permission, and probably implied unlimited permission to use the car in the manner in which he operated it.

Applying the definitions of uninsured motorist or motor vehicle as found in the policies and Alabama law, this court concludes that the car driven by Randy Duke was not an uninsured vehicle. To the contrary, the owner of the car carried bodily injury insurance on the automobile with Tennessee Farmers Mutual within the limits required by law; the insurance company has not denied coverage and is not insolvent; and it was not a hit-and-run accident.

It is clear that a party making a claim for uninsured motorist coverage must prove that the vehicle which injured him was in fact uninsured. See generally, Annot., 26 A.L.R.3d 883, 892 (1969). The court finds that the plaintiff has failed to meet that burden in this case. The most plausible argument that the plaintiff presents to show that the insurance policy does not cover this accident centers around the contention that Duke was driving the car outside the scope of the permission given by Tommy Scurlock. In his deposition, Mr. Scurlock stated that he gave Duke permission to use his wife's car to go to and from work if it were raining. (Deposition of Thomas G. Scurlock, at page 5.) Duke, in his deposition, testified that he asked the Scurlocks where the keys to the car were "in case it was raining or something," and they told him that the keys were in the car. Nothing else was said concerning any conditions or restrictions on the use of the car, according to Duke. (Deposition of Randy D. Duke, at pages 5, 15.) The facts are uncontroverted, however, that Duke worked for Tommy Scurlock and his partner Robert Romer as bartender at the tavern they ran. Duke stayed at the Scurlock's house while they went to Gatlinburg so that he could be closer to the tavern.⁵ Furthermore, Duke had to pick up the money for operating the tavern from Romer on Monday, carry it to the tavern, and take the receipts from the tavern home with him each night....