McKinnon v. Southern Farm Bureau Cas. Ins. Co.

• Citation: 232 Ark. 282,335 S.W.2d 709
• Decision Date: 30 May 1960
• Docket Number: No. 5-2150,5-2150
• Parties: Mrs. Clyda McKINNON, Administratrix of the Estate of Harvey McKinnon, Deceased, Appellant, v. SOUTHERN FARM BUREAU CASUALTY INSURANCE CO., Appellee.
• Court: Supreme Court of Arkansas

Page 709

335 S.W.2d 709

232 Ark. 282

Mrs. Clyda McKINNON, Administratrix of the Estate of Harvey

McKinnon, Deceased, Appellant, v. SOUTHERN FARM BUREAU CASUALTY INSURANCE CO., Appellee.

No. 5-2150.

Supreme Court of Arkansas.

May 30, 1960.

Denman & Denman, Prescott, for appellant.

Shaver, Tackett & Jones, Texarkana, for appellee.

HOLT, Justice.

Appellant, Mrs. Clyda McKinnon, Administratrix of the Estate of Harvey McKinnon, Deceased, brings this appeal from a judgment in favor of appellee, Southern Farm Bureau Casualty Insurance Company, on a claim of appellant against appellee for $5,000 under the terms of one of appellee's policies. The insurance policy named as the insured: 'Kenneth McKinnon and/or Harvey McKinnon' and covered bodily injury liability, property damage liability, medical payments, comprehensive damages and collision damages. The present appeal deals only with the extent of the medical coverage.

Harvey McKinnon was killed in an automobile accident while riding in an automobile owned and operated by his son, Kenneth, and insured by appellee casualty insurance company. Kenneth was a minor when he purchased the car and when it was first insured on his initial application. This original policy was renewed from time to time, each time in the name of 'Kenneth McKinnon and/or Harvey McKinnon' (his father) and even after Kenneth reached his majority, the policy (the one here involved) continued the name of 'Kenneth McKinnon and/or Harvey McKinnon.' Appellant alleged in her complaint: 'That the defendant issued their policy, number A280601 to 'Kenneth McKinnon &/or Harvey McKinnon.' That among the provisions of said policy there was a 'Medical payment' coverage known as 'Coverage C' that this coverage was paid for and applicable to this policy and to this insured.

'That the said 'Medical Payment--Coverage C' in said policy reads as follows: 'II. Medical Payments--Coverage C: To pay all reasonable expenses incurred within one year from the date of accident for necessary ambulance, hospital, professional nursing and funeral services to or for: Division 1(a) The named insured and, while residents of the same household, his spouse and any relative of either, who sustains bodily injury, caused by accident while in or upon entering or alighting from, or through being struck by any automobile; (b) in the event of the death of the first individual named as insured caused by accident while in or upon, entering or alighting from, or through being struck by any automobile, the sum of $5,000.00 less any payments otherwise made hereunder on account of such injury. * * *

'That 'Medical Payment--Coverage C' Division 1(b) section of said policy and by reason of the clause naming the insured 'Kenneth McKinnon &/or Harvey McKinnon,' the defendant is liable to pay, because of the death of Harvey McKinnon, the sum of $5,000.00, as provided for in said policy.' (Emphasis ours.) Appellee answered with a general denial. Trial was had by agreement before the court and as indicated, there was a judgment in favor of appellee, casualty company.

For reversal, appellant contends: 'The appellee by using '&/or' in naming the insured created an ambiguity, and said ambiguity must be construed most strictly against the appellee insurer; that the phrase '&/or' is typed and the phrase 'first individual named' is printed,--under well settled rules of construction the written phrase takes precedence over the printed phrase; The effect of the appellee's theory is that the appellee intended to and did, perform a nullity by placing Harvey McKinnon's name in the clause naming the insured in this policy, because under the appellee's theory the placing of Harvey McKinnon's name in the clause naming the insured did nothing more than was done by the printed policy.'

It thus appears that one clause in the policy refers to the named insured and another clause to the first individual named as insured. Both clauses were correctly set out in appellant's complaint above. Appellant's counsel insists that since the phrase '&/or' is used, this means that either of the persons named can be chosen as the first named insured. It is further argued that the phrase '&/or' is susceptible of more than one meaning and creates an ambiguity which under our long established rule of strict construction against the company, the appellant should prevail. While it is true that we resort to such rule of construction when there is ambiguity, our rule is equally well established that where no ambiguity exists, we are not required to use a forced construction which is plainly outside the language of the policy. Here, we think, the policy is clearly susceptible to but one construction under its terms, 'in the event of the death of the first individual named as insured caused by accident * * *,' which are definite and certain and the language used unmistakably insured the life of Kenneth McKinnon only, the first individual named as insured. Plainer language could not have been used.

Appellant's further contention 'that the phrase '&/or' is typed and the phrase 'first individual named' is printed; under well settled rules of construction the written phrase takes precedence over the printed...