Lund v. State Farm Mutual Automobile Insurance Company

• Decision Date: 22 May 1972
• Docket Number: Civ. No. 72-72.
• Citation: 342 F. Supp. 917
• Parties: Robert A. LUND, as Administrator of the Estates of Richard C. Lund, et al., Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign insurance corporation, Defendant.
• Court: U.S. District Court — Western District of Oklahoma

342 F. Supp. 917

Robert A. LUND, as Administrator of the Estates of Richard C. Lund, et al., Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign insurance corporation, Defendant.

Civ. No. 72-72.

United States District Court, W. D. Oklahoma.

May 22, 1972.

Daniel C. McClung, of Gurley, McClung & Rogers, Blackwell, Okl., for plaintiff.

Clayton B. Pierce and Calvin W. Hendrickson, of Pierce, Couch, Hendrickson, Gust, Short, Oklahoma City, Okl., for defendant.

MEMORANDUM OPINION AND ORDER

EUBANKS, District Judge.

This is a diversity action which was removed from the District Court of Kay County, Oklahoma. Both Plaintiff and Defendant have moved for summary judgment and the motions are now before the Court for disposition.

The Amended Complaint alleges that Richard C. Lund and Dorothy A. Lund and their three minor daughters were killed instantly in an automobile collision when the automobile in which they were riding was struck by an automobile being driven by Jerry Miller in a negligent manner. They left surviving James C. Lund, a minor, age 18, who lived with his parents and was dependent upon them for support and care. The Answer of Defendant admits the negligence of Jerry Miller.

The Amended Complaint alleges that Jerry Miller carried automobile liability insurance with Western Casualty Company of Ft. Scott, Kansas, with limits of $5,000.00 covering injury to one person and $10,000.00 for each accident, and that Richard C. Lund and Dorothy A. Lund carried uninsured motorist insurance with the Defendant with limits of $10,000.00 for injury to one person and $20,000.00 for each accident. The Plaintiff is the Administrator of the Estates of Richard C. Lund, Dorothy A. Lund, and each of the three deceased minor daughters, and he also is the Guardian of the Estate and Person of James C. Lund, a minor son, living with and dependent upon his father and mother for support at the time of their deaths.

The Amended Complaint further alleges that Western Casualty, as the insurer of the tortfeasor, has paid to the Plaintiff the sum of $2,000.00 for each estate of the Plaintiff's five decedents and that the tortfeasor was thus an uninsured motorist and that Defendant is liable under its policy. In short, the contention of the Plaintiff is that although the tortfeasor carried insurance in the amount required by the Oklahoma Financial Responsibility Act, when it has been divided among the estates of five decedents, Miller was thereby rendered an uninsured motorist under the terms of the Lund policy with the Defendant.

The rights and obligations of the parties are to be determined by the applicable statutes and the insurance contract. We turn first to the statutes. They are 36 O.S. § 3636 et seq. and 47 O.S. § 7-204. The title to the Legislative Bill H. B.No.802, C. 106, 1968 Session Laws, which became 36 O.S. § 3636 et seq., provides in pertinent part as follows:

An Act relating to insurance: requiring that an `uninsured motorist clause' be contained in every automobile liability insurance policy; prescribing the limits of liability of such coverage; . . . defining terms . . . Emphasis supplied

The statutory language which follows reads as follows:

A. No policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be issued, delivered, renewed, or extended in this State with respect to a motor vehicle registered or principally garaged in this State unless the policy includes the coverage described in subsection (B) of this section.

B. The policy referred to in subsection (A) of this section shall provide coverage therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom. Coverage shall not be less than the amounts or limits prescribed for bodily injury or death for a policy meeting the requirements of 47 O.S.1961 § 204, sic as the same may be hereafter amended; provided, however, that larger amounts of liability may be offered and purchased if desired. 36 O.S. § 3636 Emphasis supplied

C. For the purpose of this coverage the term "uninsured motor vehicle", shall, subject to the terms and conditions of such coverage, be deemed to include an uninsured motor vehicle where the liability insurer thereof is unable to make payment with respect to the legal liability of its insured within the limits specified therein because of insolvency.

Title 47, Section 7-204 which is an integral part of the Oklahoma Motor Vehicle Financial Responsibility Act, provides in pertinent part as follows:

No policy . . . shall be effective . . . unless such policy . . . is subject, if the accident has resulted in bodily injury or death, to a limit, exclusive of interest and costs, of not less than Five Thousand Dollars ($5,000.00) because of bodily injury to or death of one person in any one accident and subject to said limit for one person, to a limit of not less than Ten Thousand Dollars ($10,000.00) because of bodily injury or death of two or more persons in any one accident . .

The statutory language is not ambiguous. Significantly, the statute does not define the term "uninsured motor vehicle" either by words of inclusion or exclusion. Webster's New Third International Dictionary defines "uninsured" to mean "not insured." The statute does, however, provide that "coverage shall not be less than the amounts of limits prescribed for bodily injury or death for a policy meeting the requirements of 47 O.S.1961, § 204.mm" sic. If coverage of a tortfeasor is in amounts which meet the requirements of 47 O.S.1961 § 7-204 $5,000.00-$10,000.00, then the motor vehicle is insured within the meaning of 36 O.S. § 3636.

At the time of the collision involved herein, the motor vehicle of the tortfeasor, Jerry Miller, was insured by Western Casualty with coverage limits of $5,000.00 for injury to or death of one person but subject to the limitation of $10,000.00 for each accident. Western Casualty is authorized to do business in Oklahoma. The policy of Western Casualty complied with the Oklahoma statute. In short, the coverage provided by Western Casualty complied with the statute. The automobile being operated by the tortfeasor, Jerry Miller was an insured motor vehicle. It was not uninsured.

We turn next to the insurance policy issued by Defendant, covering the decedents as "insureds." We look, therefore, to the terms and conditions of the coverage. Here again the language is not ambiguous. The Insuring Agreements under Section III, styled "UNINSURED MOTOR VEHICLE COVERAGE", read in pertinent part as follows:

COVERAGE U—DAMAGES FOR BODILY INJURY CAUSED BY UNINSURED MOTOR VEHICLES. 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 provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration provided that if agreement by

...