Markham v. State Farm Mutual Automobile Ins. Co.

• Decision Date: 31 July 1972
• Docket Number: No. 71-1391.,71-1391.
• Citation: 464 F.2d 703
• Parties: Dorothy Faye MARKHAM, Plaintiff-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an Insurance Corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

464 F.2d 703 (1972)

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

No. 71-1391.

United States Court of Appeals, Tenth Circuit.

June 30, 1972.

Rehearing Denied July 31, 1972.

B. J. Cooper, Oklahoma City, Okl., (Rinehart, Cooper & Stewart, Oklahoma City, Okl., on the brief), for plaintiff-appellee.

George F. Short, Oklahoma City, Okl. (Pierce, Duncan, Couch & Hendrickson, Oklahoma City, Okl., on the brief), for defendant-appellant.

Before HILL, HOLLOWAY and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

State Farm Mutual Automobile Insurance Company issued John Markham three separate liability insurance policies covering each of three vehicles owned by him. While such policies were in effect, John's wife, Dorothy, sustained severe personal injuries in a one-car accident which occurred when she was riding as a passenger in one of the insured vehicles being driven at the time by Anna Markham, age seventeen, an unemancipated daughter of John and Dorothy Markham. The automobile driven by Anna skidded off the roadway and struck a utility pole, injuring Dorothy The fact of Anna's negligence, incidentally, was stipulated to by the parties.

On this sequence of events, Dorothy Markham filed a complaint against State Farm alleging that, under the uninsured motorist provisions of each of the three policies and the Oklahoma statutes relative to uninsured motorists, State Farm was liable to her in the amount of $15,000, such sum representing $5,000 on each of the three policies. The parties waived trial by jury, and the case was tried to the court on stipulations coupled with certain oral testimony. The trial court found in favor of Dorothy Markham on all issues and entered judgment in her favor in the total amount of $15,000. 326 F.Supp. 39 (W.D.Okl. 1971).

State Farm now appeals, contending, inter alia, that judgment should have been entered in its favor because under Oklahoma law Dorothy Markham had no cause of action against her daughter, Anna, and such being the case, under the applicable state statutes relative to uninsured motorists and the provisions of the insurance policies relating thereto, Dorothy Markham could not recover from State Farm because she was not "legally entitled to recover damages" from her daughter, Anna. We agree and reverse the judgment.

We are here concerned with the interpretation and application of the Oklahoma uninsured motorist statute and the uninsured motorist provisions of the insurance policies issued by State Farm. 36 O.S. 1971, § 3636, provides as follows:

"Uninsured motorist coverage.— (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 * * *." (Emphasis added.)

The applicable provisions concerning uninsured motorist coverage in each of the three policies issued John Markham by State Farm parallel the above statute and read as follows:

"COVERAGE U—Damages for Bodily Injury Caused by Uninsured Automobiles. 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 automobile because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile, 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." (Emphasis added.)

It was in this general setting that Dorothy Markham made demand on State Farm to arbitrate and, failing to obtain arbitration of the matter, then brought the present action to recover under each of the three policies issued John Markham by State Farm. It is Dorothy Markham's theory of the case that she is an insured under each of the three policies issued John Markham by State Farm; that because of the so-called "household exclusion" clause appearing in each of the several policies, Anna Markham, though an insured motorist to the rest of the world, was an "uninsured motorist" as concerns her; that under the uninsured motorist coverage provided in each policy she is entitled to recover from State Farm; and that she is entitled to "stack" the coverage by making recovery under each of the three policies.

State Farm defends on the following grounds: (1) That Anna Markham is not truly an uninsured motorist under the terms of the policies and the applicable Oklahoma statutes; (2) that under the terms of the policies Dorothy Markham is only entitled to recover from State Farm if she herself be legally entitled to recover damages from her daughter, Anna, and that under Oklahoma law she has no such legal entitlement; and (3) that in any event Dorothy Markham may not "stack" by making a recovery under all three policies.

As indicated, we are of the view that Dorothy Markham is precluded from making any recovery for the reason that she is not herself legally entitled to recover damages from her daughter, Anna Markham, and we elect to resolve this controversy on that basis.

Under Oklahoma cases, a parent has no cause of action based upon tort against his or her unemancipated child. It should be emphasized that this is not just a defense, such as a statute of limitations, for example, which may, or may not, be raised when such an action is brought. Rather, the Oklahoma courts have repeatedly held that there is no cause of action based on negligence between a parent and his or her unemancipated child. Hill v. Graham, 424 P.2d 35 (Okl. 1967); Hampton v. Clendinning, 416 P.2d 617 (Okl. 1966); Tucker v. Tucker, 395 P.2d 67 (Okl. 1964). And these cases indicate a disinclination on the part of the Oklahoma Supreme Court to depart in anywise from this rule in the absence of a clear legislative mandate to the contrary.

As previously stated, it was State Farm's position in the trial court, as well as here, that since Dorothy Markham had no cause of action against her daughter, Anna, she (Dorothy) was precluded from making any recovery because she was not "legally entitled to recover damages" from the uninsured motorist as required by the terms of both the policy and applicable state statute. The trial court rejected this reasoning and in so doing commented that "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 trial court then went on to hold that the phrase "legally entitled to recover damages" as applied to the facts of the instant case meant only that Dorothy Markham must show negligence on the part of Anna Markham and resulting damages to herself. We disagree and hold that the phrase "legally entitled to recover damages" means "legally entitled to recover damages."

Our attention has not been directed to any Oklahoma case which bears directly on the precise question now before us. However, such cases as Hickey v. Insurance Company of North America, 239 F.Supp. 109 (E.D.Tenn. 1965); Noland v. Farmers Insurance Exchange, 413 S.W.2d 530 (Kansas City Court of Appeals 1967); and Country Mutual Insurance Company v. National Bank of Decatur, 109 Ill.App.2d 133, 248 N.E. 2d 299 (Appellate Court of Illinois, Fourth District, 1969), shed light on our controversy. The facts in Hickey are dissimilar to those in the instant case. However, in that case it was held that no liability exists under an uninsured motorist provision if the person claiming thereunder fails to establish legal liability against the uninsured motorist.

The Noland case does involve facts somewhat similar to the instant case. There, the plaintiff sued the defendant insurance company for damages growing out of personal injuries suffered by her while seated in the automobile of the defendant's insured when it was struck in the rear by an uninsured motorist, who was the plaintiff's husband. The rule in Missouri is that neither spouse may maintain a civil suit against the other, during coverture, based on tort occurring during coverture. In Noland, the insurance policy provided that the insurer would pay all sums which the owner or operator of the uninsured automobile "would be legally responsible to pay as damages." The argument that the fact that under Missouri law one spouse could not sue the other in tort did not preclude a recovery under the provisions of the policy relating to uninsured motorist coverage because the proceeding was one against an insurance company, and not against a spouse, was rejected with the following comment:

"Under the conditions stated in the insurance contract, as presented in the briefs of the parties, we hold that the terms stated therein, upon which defendant must pay, are not unlawful or ambiguous

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