Nationwide Mut. Ins. Co. v. Worthey

• Court: Arkansas Supreme Court
• Writing for the Court: GLAZE; BROWN
• Citation: Nationwide Mut. Ins. Co. v. Worthey, 314 Ark. 185, 861 S.W.2d 307 (Ark. 1993)
• Decision Date: 20 September 1993
• Docket Number: No. 93-87,93-87
• Parties: NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant, v. Jeannie WORTHEY, Individually and as Mother and Next Friend of Dustin Worthey, A Minor, Appellee.

Page 307

861 S.W.2d 307

314 Ark. 185

NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant, v. Jeannie WORTHEY, Individually and as Mother and Next Friend of Dustin Worthey, A Minor, Appellee.

No. 93-87.

Supreme Court of Arkansas.

Sept. 20, 1993.

Mixon & McCauley, Jonesboro, for appellant.

Henry, Walden & Halsey, Jonesboro, for appellee.

GLAZE, Justice.

Jeannie Worthey and her husband Kenneth obtained an automobile liability policy from Nationwide Mutual Insurance Co. on their two pickup trucks and Cadillac. The policy covered the Wortheys and their son Dustin, for all bodily injuries sustained by them and caused by an accident and arising out of another's ownership, maintenance, or use of an uninsured automobile. The Wortheys also owned a 1975 Honda Trail 70 vehicle which they did not insure; it is that vehicle which is the center of this litigation.

In short, Dustin was operating the Trail 70 vehicle on a county road when an uninsured motorist ran into Dustin. Nationwide refused to pay for Dustin's injuries, so Jeannie, as Dustin's next friend, brought suit against Nationwide to recover under the uninsured motorist coverage of the Wortheys' policy with Nationwide. The trial court awarded judgment against Nationwide from which Nationwide now appeals.

Nationwide argues that Dustin is excluded from the uninsured motorist coverage of Wortheys' policy because the policy terms provide that "[I]t (the uninsured motorist coverage) does not apply to bodily injury suffered while occupying a motor vehicle owned by you or a relative living in your household, but not insured for Uninsured Motorists coverage under this policy." Nationwide contends the Worthey Trail 70 vehicle was a motor vehicle and therefore excluded from coverage since the Wortheys owned the vehicle but failed to insure it for uninsured motorist coverage. ¹

Worthey counters Nationwide's contention by arguing the Trail 70 is not a motor vehicle. The trial court agreed with Worthey, and Worthey submits the evidence presented below clearly supports the trial court's holding.

Both Worthey and Nationwide point to the policy which defines "motor vehicle" as follows:

[A] land motor vehicle designed to be driven on public roads. They do not include vehicles operated on rails or crawler-treads. Other motor vehicles designed for use mainly off public roads are covered when used on public roads.

In discussing the foregoing definition, Worthey cites cases and Arkansas statutes to support her position that the uninsured Trail 70 vehicle owned by the Wortheys and operated by Dustin was not a motor vehicle and therefore did not come within the uninsured motorist exclusion provision of Nationwide's policy. For clarity sake, we first dispel any thought or suggestion that the Trail 70 vehicle is not a motor vehicle under state law. Second, we will consider if the language contained in Nationwide's policy definition of motor vehicle permits or dictates a different result.

Under Arkansas Registration and Licensing laws, motor vehicle means every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails. Ark.Code Ann. § 27-14-207 (Supp.1991); see also Motor Vehicle Safety Responsibility Act, Ark.Code Ann. § 27-19-206 (1987) for the same definition. Obviously, a Trail 70 is self-propelled, and is further included within the statutory definition of a "motor-driven cycle," which is a motor vehicle having a seat or saddle for use of the rider and designed to travel on no more than three wheels in contact with the ground and having a motor which displaces 250 cubic centimeters or less. ² Ark.Code Ann. § 27-20-101(2) (1987). It is also clear that when a motor-driven cycle (which by definition includes a Trail 70 motor vehicle) is operated on the streets and highways of Arkansas, that vehicle must be registered and licensed. Ark.Code Ann. § 27-20-105 (Supp.1991). In addition, state law requires such a motor vehicle be equipped with standard equipment, including a headlight, tail light, red reflector, horn and standard muffler. Ark.Code Ann. § 27-20-104 (1987).

Here, the Wortheys knew their Trail 70 had a 70 cc engine, they allowed Dustin to ride the vehicle on public streets and knew the accident giving rise to this litigation had occurred on a public road. From the record before us, we have no doubt that, under state law at least, the Worthey Trail 70 vehicle was a motor vehicle (motor-driven cycle), and because it was used upon public streets, was subject to Arkansas's registration and licensing laws. Thus, if statutory law alone controlled the terms or coverage of the Nationwide policy here, Dustin obviously could not recover since he was operating a Trail 70 motor vehicle when injured and the motor vehicle had not been insured by the Wortheys for uninsured motorists coverage. Having said this, however, does not resolve the issue concerning the Nationwide policy definition of motor vehicle--which differs from the one defined by statutory law--and whether that difference precludes Nationwide from using the uninsured motorist exclusion provision of its policy to deny Dustin damages. We believe it does.

As previously set out above, the Nationwide policy defines "motor vehicle" as a land motor vehicle designed to be driven on public roads. Because the policy definition limits "motor vehicle" to one "designed to be driven" (not merely used) on public roads, such a definition appears somewhat narrower than that contemplated by Arkansas's statutory law. Thus, Worthey argues that, because she offered evidence below that the Trail 70 vehicle Dustin operated was designed and intended for use off the public road, such vehicle did not come within the policy definition of motor vehicle. This being so, she concludes the uninsured motorists coverage exclusion simply is inapplicable and cannot be used to prevent Dustin's recovery for the damages he sustained.

In support of Worthey's argument, she cites Carner v. Farmers Ins. Co. of Ark., 3 Ark.App. 201, 623 S.W.2d 859 (1981), which factually is similar to Worthey's present situation. In Carner, the insurance automobile policy covered three cars owned by Carner, the insured, and it provided further that the named insured or relative could recover necessary medical service expenses for bodily injury sustained through being struck by a motor vehicle while not occupying any other motor vehicle. Carner's son was riding on a friend's motorcycle when the motorcycle was struck by a car, and in seeking medical expenses under the policies covering his three automobiles, Carner contended the motorcycle which his son rode was not a motor vehicle as defined by the policies issued on Carner's automobiles. Carner pointed to the definition of motor...