Lipscombe v. Security Ins. Co. of Hartford
| Decision Date | 12 June 1972 |
| Citation | 189 S.E.2d 320,213 Va. 81 |
| Court | Virginia Supreme Court |
| Parties | Frank Mat LIPSCOMBE v. SECURITY INSURANCE COMPANY OF HARTFORD. |
Edward W. Taylor, Richmond (Hundley, Taylor & Glass, Richmond, on brief), for plaintiff in error.
G. Kenneth Miller, Richmond (Thomas H. Atkins, May, Garrett & Miller, Richmond, on brief), for defendant in error.
Before I'ANSON, CARRICO, HARRISON, COCHRAN and HARMAN, JJ.
Frank Mat Lipscombe filed in the trial court a motion for judgment against his uninsured motorist carrier, Security Insurance Company of Hartford. In the motion, Lipscombe sought to recover from Security $25,000, the amount of a judgment he had previously secured against James Elwood Brown, an uninsured motorist, for injuries sustained in an automobile collision. Code § 38.1--381(b). Security tendered payment into court of $20,000, claiming that was the limit of its liability under its policy, and the amount so tendered was paid to Lipscombe. The trial court ruled that Security was liable for $20,000 only and denied Lipscombe any further recovery. We granted him a writ of error.
At the time of the collision in question, Lipscombe was the named insured in a 'Family Combination Automobile Policy' issued by Security. The policy covered two vehicles which were separately listed, an Oldsmobile and a Rambler. Lipscombe was operating the Oldsmobile when he was injured.
The policy contains standard uninsured motorist provisions providing coverage of $20,000 'each person' and $30,000 'each accident.' A separate, equal premium was charged for each of the two automobiles listed in the policy.
Lipscombe contends that he should be permitted to 'stack,' or combine, the uninsured motorist coverages on the two automobiles listed in the policy so as to provide total coverage of $40,000, enough to satisfy his $25,000 judgment. He bases his claim to 'stack' upon an alleged ambiguity in the policy, the result of which, he says, is to make it unclear whether he is entitled to the benefit of one coverage or two. This ambiguity should be construed against Security, Lipscombe argues, and 'stacking' should be required.
Security contends, on the other hand, that its policy is not ambiguous. It relies upon the language of the 'Declarations' portion of its policy where it is provided that the 'limit of the company's liability against each such coverage shall be as stated herein, subject to all the terms of this policy having reference thereto.' Security then quotes a clause of the uninsured motorist provisions where it is provided that the 'limit of liability . . . stated in the declarations as applicable to 'each person' ($20,000) is the limit of the company's liability for all damages . . . sustained by one person as the result of any one accident.' All this, Security says, fixes the limit of liability per person at $20,000. Thus, Security concludes, Lipscombe is entitled to coverage of only $20,000 and should not be permitted to 'stack.'
The same question presented by these contentions has been resolved today in Cunningham v. Insurance Company of North America, 213 Va. 72, 189 S.E.2d 832 (1972). In that case, we held that the named insured was permitted to 'stack' the coverages provided by the uninsured motorist provisions of a policy separately listing three automobiles owned by the insured. In so holding, we adopted the reasoning of the Supreme Court of Kansas in Sturdy v. Allied Mutual Insurance Company, 203 Kan. 783, 457 P.2d 34 (1969). Sturdy held that where a single policy insures the owner of two listed automobiles against loss from damages caused by an uninsured motorist and a separate, equal premium is charged for each vehicle, an ambiguity is created in the absence of 'plain, unmistakable language' restricting the coverage to that applicable to a single vehicle. And the ambiguity is to be construed against the insurance company, with the result that the insured is entitled to double coverage for the double premium paid.
The holding in Cunningham and our embracement therein of Sturdy would conclude the question in this case except for an argument advanced by Security which was not made by the insurance carrier in Cunningham. Security goes back to our decision in Central Surety & Insurance Corporation v. Elder, 204 Va. 192, 129 S.E.2d 651 (1963), where we permitted the insured to 'stack' the medical payment coverages of two vehicles insured in the same policy. 1 An ambiguity was found to exist in the policy because a separate premium was charged for each vehicle and the policy contained a clause which provided that 'when two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each.'
Security states that although its policy contains a 'two or more automobiles' clause, that clause is expressly made inapplicable to the uninsured motorist portion of its policy. From this, Security argues that it has eliminated from its uninsured motorist provisions the two-car, two-coverage concept which caused the ambiguity in Elder and has thereby 'expressly excluded by clear and unequivocal language' any right to 'stack' the uninsured motorist coverages.
We agree that the 'two or more automobiles' clause has been excluded from the uninsured motorist provisions of Security's policy. But is this mere exclusion sufficient to prevent 'stacking'?...
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