Lowery v. State Farm Mut. Auto. Ins. Co.

Decision Date26 November 1973
Docket NumberNo. 47303,47303
Citation285 So.2d 767
PartiesJames W. LOWERY, a minor, by and through James L. Lowery, Father and Next Friend v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
CourtMississippi Supreme Court

Liston & Upshaw, J. E. Ellis, Jr., Winona, for appellant.

Wise, Carter, Child, Steen & Caraway, William M. Dalehite, Jr., Jackson, for appellee.

RODGERS, Presiding Justice.

This case came to this Court from the Circuit Court of Montgomery County, Mississippi. Appellant James W. (Daniel) Lowery, a minor, filed suit against State Farm Mutual Automobile Insurance Company, a nonresident insurance company. The suit was based upon the terms of an insurance policy issued by the defendant insurance company to the plaintiff's father, James L. Lowery, providing insurance upon his son, a member of his family. The policy contained an agreement by which the insurer agreed to provide insurance coverage under what is known as the uninsured motorist clause. The clause in this policy is in the following language:

'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 motor vehicle because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured motor vehicle . . .'

The appellant contended in the trial court and contends here that the insurance company was and is indebted to him for injuries sustained as a result of an accident in which he was injured by an uninsured motorist.

The appellant was at the time alleged to have been riding and operating, in a careful and prudent manner, a Honda motor bike on U.S. Highway 51, and through no fault of his own, he was struck by a 1963 Ford being driven by Joe Palmertree. It is said that as a result of said accident, the plaintiff, James W. Lowery, was sorely hurt and seriously injured in his left leg and body; that his injury required medical expenses in the sum of fourteen hundred dollars ($1,400.00); and that he will incur future expenses because of the injuries inflicted on the plaintiff by Joe Palmertree, who was an uninsured motorist under the terms and meaning of the policy. The plaintiff contended that since he lives in the household of his father, he is insured under the terms of the policy against injury resulting from the negligent acts of an uninsured motorist. The case was tried upon a stipulated statement of facts and a copy of the insurance policy.

The parties stipulated the following agreement:

'It is hereby agreed and stipulated by and between counsel for Plaintiff and counsel for Defendant as follows:

1. That State Farm Mutual Automobile Insurance Company issued an automobile liability policy to Mr. James L. Lowery;

2. That Danny Lowery is the son of James L. Lowery and Danny resides in the same household with his father;

3. That on the day of the accident in question, the policy was in full force and effect;

4. That Danny was struck by an uninsured motorist;

5. That at the time of the accident Danny was operating a motorcycle owned by him;

6. That the motorcycle was not insured;

7. That the motorcycle was not listed on the declaration page of the policy;

8. That Danny's injuries would justify a Five Thousand Dollars award; and

9. That the maximum limits contained in the policy in question under its uninsured motorist endorsement is Five Thousand Dollars.

In addition, Your Honor, please, we would stipulate that insofar as this case is concerned, that the legal liability of the accident was caused by the uninsured motorist.

We will offer as a general exhibit, by agreement, a certified copy of the policy in question.'

This case was submitted to the trial judge on a question of law. The trial judge ruled in favor of the insurance company, holding that the terms of the policy did not cover the alleged injury.

The issue here is: Does the insurance policy cover an insured owner of an automobile and the members of his family who are injured while riding in or on another motor vehicle not mentioned in the insurance policy?

The insurance policy here involved listed only the family automobile as the 'owned motor vehicle' within the meaning of that term as defined in the policy. The policy contains the following:

'Owned Motor Vehicle-means the motor vehicle or trailer described in the declarations, and includes a temporary substitute automobile, a newly acquired automobile, and, provided the described motor vehicle is not classified as 'commercial', under coverages A, B, C and M, a trailer (as defined herein) or a detachable living quarters unit owned by the named insured or his spouse, if a resident of the same household.' (Emphasis added)

The automobile described in the declaration as a 'Described Automobile' is 'Plym 69 4 DR 7835.'

The policy also contains the following clause:

'This insurance does not apply . . . to bodily injuries to an insured while occupying or through being struck by a land motor vehicle owned by a named insured or any resident of the same household, if such vehicle is not an owned motor vehicle, . . .'

Assuming, as we must, since appellee agrees that James W. Lowery, the appellant, was covered under the terms of the policy, as being a member of named insured's household, the issue resolves itself into two questions of law: Was the accident in which appellant was injured such an accident as was contemplated by the terms of the policy, and if so, do the terms of the policy violate the mandatory requirements of Sections 8285-51 and 8285-52, Mississippi Code 1942 Annotated (Supp.1972) (Mississippi Code 1972 Annotated § 83-11-101 and § 83-11-103)?

In the outset, it is apparent under the terms of the policy that the owned motor vehicle described in the policy must have been an automobile; moreover, it must have been either the automobile listed in the declarations of the policy or (1) a temporary substitute automobile or (2) a newly-acquired automobile. Finally, the automobile must be owned by the named insured or his spouse, if living in the same household.

It is obvious from the facts as concluded by the appellant that the appellant was clearly within the terms of the exclusionary provision of the policy. He was riding a motorcycle which he owned, and this motor vehicle was not an 'owned motor vehicle' as set out in the declaration of the motor vehicle insured.

This then brings us to the question of law as to whether or not the terms of the instant policy conflict with the Mississippi statutes requiring all automobile liability insurance policies to contain an uninsured motorist provision.

There are two sections of the Mississippi Uninsured Motor Vehicle Act that are relevant to the issue here involved. They are Sections 8285-51 1 and 8285-52 2, Mississippi Code 1942 Annotated (Supp.1972) (Mississippi Code 1972 Annotated § 83-11-101 and § 83-11-103).

Before discussing the cases relevant to the issue, the general public policy considerations must be set out. The most recent pronouncement of this Court on the policy of the Uninsured Motorist Act comes from Rampy v. State Farm Mutual Automobile Insurance Co., 278 So.2d 428 (Miss.1973):

'In interpreting similar, if not identical statutes, the vast majority of jurisdictions have stated that the purpose of such uninsured motorist laws is to provide protection to innocent insured motorists and passengers injured as a result of the negligence of financially irresponsible drivers.

'* * * Its purpose is to give the same protection to the person injured by an uninsured motorist as he would have had if he had been injured in an accident caused by an automobile covered by a standard liability policy. Such provisions are to be liberally construed to accomplish such purpose." 278 So.2d at 432.

This statement of policy is in line with numerous decisions in other states as well as the policy as stated by the text writers. It is the policy as well as the wording of the statutes that must be measured against the exclusionary clause in the present case. As the court stated in Travelers Indemnity Company v. Powell, 206 So.2d 244 (Fla.App.1968):

'Numerous decisions construing various provisions of insurance contracts have held that this public policy is violated by any restrictive language inserted in an insurance policy having the effect of defeating the purpose and intent of the statute, and such provisions must be considered nugatory and void.' 206 So.2d at 246.

In discussing the relevant cases in other jurisdictions, the following approach will be used. The cases supporting the appellant's position will be discussed first, since this appears to be supported by the greater weight of authority, followed by the decisions supporting the position of the appellee, State Farm.

Although the uninsured motorist acts of All the states are very similar, there are some variations in the wording that affect the applicability of the various cases. The similarities and differences of the statutes will be pointed out when it is necessary.

The critical language for purposes of the present case is found in Section 8285-52 (§ 83-11-103), supra, in the definition of 'insured':

'. . . (T)he term 'insured' means the named insured and, while resident of the same household, the spouse of any such named insured, and relatives of either, while in a motor vehicle or otherwise, and any person who uses, with the consent, express or implied, of the named insured, the motor vehicle to which the policy applies, and a guest in such motor vehicle to which the policy applies, or the personal representative of any of the above; . . .'

The most persuasive cases come from states with similar statutory definitions. The Virginia uninsured motorist statutes define 'insured' exactly as the Mississippi act.

The Supreme Court of Appeals of Virginia was called upon to interpret this provision in Allstate Insurance Company v. Meeks...

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