Moomaw v. State Farm Mutual Automobile Ins. Co.

• Decision Date: 23 September 1974
• Docket Number: Civ. A. No. 73-242-CH.
• Citation: 379 F. Supp. 697
• Parties: Franklin Wayne MOOMAW et al., Plaintiffs, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation, and Federal Mutual Insurance Company, a corporation, Defendants.
• Court: U.S. District Court — Southern District of West Virginia

379 F. Supp. 697

Franklin Wayne MOOMAW et al., Plaintiffs, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation, and Federal Mutual Insurance Company, a corporation, Defendants.

Civ. A. No. 73-242-CH.

United States District Court, S. D. West Virginia, Charleston Division.

July 24, 1974.

As Amended September 23, 1974.

Robert W. Lawson, III, Charleston, W. Va., for plaintiffs.

Robert J. Louderback, Charleston, W. Va., for State Farm.

Carl F. Stucky, Jr., Charleston, W. Va., for Federal Mutual.

MEMORANDUM ORDER

K. K. HALL, District Judge.

In this action plaintiffs seek to recover under the uninsured motorists provision of different automobile liability insurance policies issued by the two defendants. The issues are before the Court on plaintiffs' motion for summary judgment based on the record, including supporting affidavits, a counter-affidavit filed by defendant, Federal Mutual Insurance Company, and a stipulation by the parties. Rule 56, Federal Rules of Civil Procedure.

Jurisdiction is based on diversity of citizenship and amount in controversy and has not been questioned. 28 U.S.C., § 1332.

The pertinent facts in the case have been stipulated. On May 24, 1970, Franklin Wayne Moomaw and Jack Allen Carper were passengers in a 1968 Ford automobile owned and being operated by Carmel Luther Boggs when this automobile was involved in an accident with a vehicle owned by William Ray Poling and being operated by James Howard Nelson, Jr. Both Nelson and Poling were uninsured motorists and the vehicle owned by Poling was an uninsured motor vehicle within the meaning of the West Virginia Uninsured Motorists Act. W.Va.Code Ann. § 33-6-31 (1972).

Moomaw, Carper and Boggs each were injured as a result of the accident and together with their spouses, prosecuted an action for damages against Nelson and Poling in the Circuit Court of Monongalia County, West Virginia. Copies of the summons and complaint were served upon each of the defendants in compliance with the requirements of the West Virginia Uninsured Motorists Act, but neither answered nor otherwise defended or appeared in the action. On June 30, 1972, judgments were recovered, with interest, by Moomaw in the amount of $26,000.00, by Carper in the amount of $40,000.00, and by Boggs in the amount of $32,000.00. Each of their wives recovered $3,000.00, with interest, as damages for loss of services. These judgments have not been appealed, modified, or set aside, nor have they been satisfied in whole or in part by any party.

At the time of the accident, plaintiff Moomaw had two policies of automobile insurance issued by defendant State Farm which were in full force and effect. Plaintiff Carper had three policies of automobile insurance issued by defendant State Farm in full force and effect. Under a single policy issued by defendant Federal Mutual, plaintiff Boggs had insured a 1969 Ford automobile and the 1968 Ford automobile involved in the accident.¹ The limits of liability on each of these automobiles was $10,000.00 per person and $20,000.00 per accident. All of the policies appear to be standard Family Automobile Policies providing basic uninsured motorist coverage², with appropriate definitions³, limits of liability⁴, medical payments provisions⁵, "other insurance" clauses⁶, and separability clauses⁷.

It was further stipulated by the parties that the plaintiffs incurred reasonable medical expenses within one year from the date of the accident, Moomaw in the amount of $1,259.57, Carper in the amount of $1,181.57, and Boggs in the amount of $1,130.39. Pursuant to the medical payments provision of its policy, Federal Mutual paid each of the plaintiffs $500.00 for those medical expenses. Carper also received $500.00 from State Farm, but Moomaw, although he has complied with the provisions of his policies, has received no medical payment benefits from State Farm.

Plaintiffs initiated the present action on August 15, 1973, against State Farm and Federal Mutual to recover from defendants in the following manner. To satisfy his judgment for $32,000.00, Boggs is claiming the maximum "per person" limit on each coverage, $10,000.00 for a total of $20,000.00 against Federal Mutual, plus interest. Additionally, Boggs is claiming another $500.00 from Federal Mutual under the medical payment provisions of the policy. His wife seeks $3,000.00, the amount of her judgment, plus interest, to be satisfied from the $20,000.00 "per accident" portion of the coverage, her husband having used up the "per person" portion. Plaintiffs assert that after Mrs. Boggs' judgment is satisfied there would remain $17,000.00 in Federal Mutual uninsured motorists benefits for any qualified insured before exhaustion of the limits of liability.

Moomaw seeks to recover on his two State Farm policies, each of which contained uninsured motorists coverage with limits of $10,000.00 per person and $20,000.00 per accident toward satisfaction of his $26,000.00 judgment, plus interest. He is also claiming an additional $759.57 in medical payment benefits from State Farm, the remainder of his unreimbursed medical expenses. Additionally, Moomaw claims the $6,000.00 balance of his judgment from the $17,000.00 remaining of the "per accident" portion of the Federal Mutual policy. Again, his wife claims her $3,000.00 judgment from the $20,000.00 "per accident" portion she asserts remains from the two State Farm policies.

Likewise, Carper seeks to recover on his three State Farm policies. That is, he seeks to recover $30,000.00 of his $40,000.00 judgment by cumulating the "per person" limits of the three State Farm policies. The remaining $10,000.00 he seeks to recover from the $11,000.00 assertedly remaining of the Federal Mutual "pool" of benefits. Additionally, Carper claims $181.57 in unreimbursed medical payment benefits from State Farm, the remainder having been paid by State Farm and Federal Mutual. Carper's wife is also claiming her $3,000.00 judgment for loss of services from the "per accident" portion of the three State Farm policies.

Thus, the issues in the case involve the propriety of recovery under each of the particular insurance policies in the various ways plaintiffs contend to be appropriate. Specifically, those issues are: (1) whether the stacking of the multiple State Farm policies with respect to the claims of Moomaw and Carper is proper; (2) whether Boggs can stack the coverage on the two automobiles covered by the one Federal Mutual policy; (3) whether the medical payment coverages in the State Farm and Federal Mutual policies can be stacked and whether any payment made under the medical payment coverage of any of the policies is to be applied in reduction of the $10,000.00 per person limit in any of the policies; (4) whether the passengers, Moomaw and Carper, are entitled to recover the portions of their judgments unsatisfied by their own insurers from the stacked "per accident" coverage of Boggs' one Federal Mutual policy which insured two cars; and (5) whether the wives are entitled to loss of consortium from the "per accident" portion of their respective husbands' policies.

Before discussing the merits of the specific questions raised, it is to be observed that, since the action is based on diversity of citizenship, this Court is, of course, bound by applicable West Virginia law. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Recently, the West Virginia Supreme Court of Appeals considered the propriety of stacking uninsured motorist coverages under the West Virginia law. In Bell v. State Farm Mutual Automobile Insurance Co., decided by the West Virginia Court on March 19, 1974, and not yet reported, plaintiff was injured in an accident with an uninsured motorist while plaintiff was riding a motorcycle not covered by an insurance policy. Plaintiff at the time had insurance coverage on a 1970 Fiat automobile. Additionally, her father had an insurance policy with the same company on a 1966 Ford automobile. Defendant defended on the basis of two contractual exclusionary clauses, one which denied coverage to a vehicle owned by an insured, but to which the liability coverage of the policy did not extend, and the other which contained an "other insurance" provision. Considering these provisions with reference to West Virginia's uninsured motorist law, the court declared that such statute provisions are "void and ineffective". Plaintiff was thus allowed recovery under both policies.

With the Bell case in mind, the first issue raised herein warrants little attention. It is clear that plaintiffs Moomaw and Carper are permitted under the controlling state law to recover under each of their respective State Farm policies. See also, Tulley v. State Farm Mutual Automobile Insurance Co., 345 F.Supp. 1123 (S.D.W.Va.1972). As the West Virginia court in the Bell case observed, "an insured covered simultaneously by two uninsured motorist policies may recover on both policies up to the limits of liability on each policy or the amount of the judgment obtained from the uninsured motorist, whichever is less, as a result of one accident and injury". Bell, supra, Syllabus No. 4. State Farm attempts to distinguish Bell and Tulley on the basis that in the present case Moomaw and Carper were only passengers in a car operated by its owner, who was the named insured in a separate policy issued by an entirely different insurer. State Farm cites in support of its position Darrah v. California State Automobile Association, 259 Cal. App.2d 243, 66 Cal.Rptr. 374 (1968). In view of broad language in Bell, however, the attempted distinction is unavailing under West Virginia law.

A more difficult question is raised by Boggs' attempt to stack the coverage afforded his two vehicles by the one Federal Mutual policy. Defendant Federal Mutual argues that the payment of a discounted premium on the second car by Boggs does not extend the limits of liability on Boggs,...