Markham v. State Farm Mutual Automobile Ins. Co.

• Decision Date: 22 March 1971
• Docket Number: Civ. No. 69-545.
• Parties: Dorothy Faye MARKHAM, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an Insurance Corporation, Defendant.
• Court: U.S. District Court — Western District of Oklahoma

326 F. Supp. 39

Dorothy Faye MARKHAM, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an Insurance Corporation, Defendant.

Civ. No. 69-545.

United States District Court, W. D. Oklahoma.

March 22, 1971.

B. J. Cooper, of Rinehart, Cooper & Stewart, Oklahoma City, Okl., for plaintiff.

George F. Short, of Pierce, Duncan, Couch & Hendrickson, Oklahoma City, Okl., for defendant.

OPINION

BOHANON, District Judge.

This diversity action was brought by plaintiff in the State District Court against the defendant in a single action asserting three separate claims upon three identical insurance policies praying for judgment against the defendant for $5,000 upon each of the three policies. The action was timely removed to this Court by the defendant. Plaintiff filed an appropriate Motion to Remand asserting this Court's lack of jurisdiction relying upon the proposition that the claims in question cannot be joined to attain Federal jurisdiction.

Plaintiff's three separate claims against the defendant total $15,000. Rule 18(a) Federal Rules of Civil Procedure provides in substance that a party asserting a claim for relief may join as many claims as he has against an opposing party. The claims in question are properly joined and meet the jurisdictional requirements of the United States District Courts; 28 U.S.C.A. § 1332.

In a diversity action where a single plaintiff has multiple claims against a single defendant, and the claims are of such a character that they may be properly joined in one suit, the aggregate amount thereof is, for the purpose of Federal jurisdiction, the amount in controversy. Alberty v. Western Surety Company, 249 F.2d 537 (10 CA 1957); Kimel v. Missouri State Life Insurance Company, 71 F.2d 921 (10 CA).

The parties waived a jury and a trial was had to the Court on the 3rd day of March, 1971.

THE FACTS

John F. Markham is the named insured in three separate liability insurance policies issued to him by the defendant, State Farm Mutual Automobile Insurance Company, and each policy was in full force and effect at the time of the claimed injuries received by the plaintiff.

Defendant's Policies Nos. 940-970-A15-36, 938-499-F25-36, and 680-460-A30-36A issued to John F. Markham provide for a separate membership charge, separate coverages and separate premiums; the separate policies and separate charges were made at the instance, request and demand of the defendant.

John F. Markham, his wife Dorothy Faye Markham and their daughter Anna Mae Markham were all members of the same household and were insureds.

Anna Mae Markham was an unemancipated minor, daughter of John F. and Dorothy Faye Markham, and was not an insured under any other policies of insurance at the time of the accident in question here.

On June 13, 1969, while Anna Mae Markham was operating one of the insured automobiles, with her mother Dorothy Fay Markham as a passenger, she negligently and carelessly propelled the same into an electric or telephone utility pole proximately causing serious and severe injuries to her mother Dorothy Faye Markham, who was not herself in anywise negligent.

Plaintiff made demand for arbitration as provided in the policies of insurance which demand was rejected by the defendant, State Farm Mutual Automobile Insurance Company.

As a proximate result of said negligent operation of the automobile, Dorothy Faye Markham has suffered serious disability, disfigurement and great pain and suffering in the past, and such pain and suffering and physical disability will continue in the future, all to her damage in excess of $15,000.00, the amount sued for, not taking into consideration hospital bills, doctors' bills and dentist services, totaling $2,173.20, for which no claim is here made.

The defendant asserts by way of Motion for Judgment under Rule 56 of the Federal Rules of Civil Procedure that because plaintiff's injuries were caused by plaintiff's unemancipated daughter and since under Oklahoma Law a parent is not legally entitled to recover damages in tort committed by an unemancipated minor, it follows plaintiff is not "legally entitled to recover" within the meaning of the insurance contracts, and defendant is entitled to judgment. It is true in Oklahoma as stated in Hampton v. Clendinning, 416 P.2d 617 (Okl.) that:

"In this State a parent has no right of action against an unemancipated minor child to recover damages for personal injuries allegedly received as the result of such minor's negligence committed in the course of the family relation."

The parent-child immunity doctrine is no defense to plaintiff's action to recover under the policies of insurance, because here the right to recovery rests upon contract, not upon the identity of the tort-feasor, and the defense, if available at all, would be personal to Anna Mae Markham, the tort-feasor, and not to the defendant here. The precise question has not been ruled on in Oklahoma in an action under an uninsured motorist insurance policy against the insurance carrier. For a discussion of an analogous situation, see annotation at 1 A.L.R.2d 677. At pages 702 and 703 of the annotation it is cited as holding the employer liable in a situation where the father and employee was negligent causing injury to his child, and the defense of the master claiming the parent-child immunity had no application. See also Patsy Oil & Gas Co. v. Odom, 186 Okl. 116, 96 P.2d 302 where a child was injured due to the negligence of his parent and holding the parent's employer liable for the negligence of the employee (parent) even though the employee was in the position of a parent and could have relied upon the personal immunity doctrine in an action brought against him. The parent-child tort immunity doctrine is a personal defense of the parent or the child and is not available to others. Rouley v. State Farm Mutual Automobile Insurance Company (D.C.La.) 235 F.Supp. 786 (1964); Smith v. Southern Farm Bureau Cas. Insurance Company, 164 So.2d 647 (La.App.1964).

Defendant concedes that plaintiff is an insured under the coverage in question but contends that she is not "legally entitled to recover" damages for tort against her daughter; therefore, no liability exists under the policies against it.

This position assumes this to be a tort action, which it is not—but one on a specific contract. All the plaintiff need prove in this case is negligence of the uninsured motorist and resulting damages. Motorist Mutual Ins. Co. v. Tomanski, 21 Ohio App.2d 271, 257 N.E.2d 399 at pp. 403, 404, 405; Booth v. Fireman's Fund Ins. Co. (La.App.1967) 197 So.2d 352; Horne v. Superior Life Ins. Co. (1962) 203 Va. 282, 123 S.E.2d 401; the defense of statute of limitations is personal to the tort-feasor and not available to automobile insurer. Schulz v. Allstate Ins. Co. (1968) 17 Ohio Misc. 83, 244 N.E.2d 546; there is no basis in the endorsement (uninsured motorist) that coverage be restricted to those situations in which insurer can stand in the shoes of the uninsured motorist. The claim against defendant on the endorsement should be and is treated differently than the cause of action the insured has against the uninsured motorist. See lengthy discussion in Sahloff v. Western Casualty & Surety Co. (1969) 45 Wis.2d 60, 171 N.W.2d 914.

Plaintiff bases her claims under the policies of insurance under "Coverage U —Damages for Bodily Injury Caused by Uninsured Automobiles." The problem arises from the provisions of the insurance policies and the Oklahoma Statute with respect to uninsured motorists, and the exclusions and definitions contained in the policies. The Oklahoma Uninsured Motorist Statute, 36 O.S.1968 Supp., § 3636, in pertinent part provides:

"(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 * * * because of bodily injury, * * * 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, as the same may be hereafter amended; provided, however, that larger amounts of liability may be offered and purchased if desired."

47 O.S.1961, § 204, referred to in the Statute above should read 47 O.S.1961, § 7-204, and in pertinent part provides:

"No policy * * * shall be effective * * * unless such policy * * * is subject, if the accident has resulted in bodily injury * * * to a limit, exclusive of interest and costs, of not less than Five

...