Odom v. American Ins. Co.

• Decision Date: 29 July 1968
• Docket Number: No. 2408,2408
• Citation: 213 So.2d 359
• Parties: Ted C. ODOM, Plaintiff-Appellant, v. The AMERICAN INSURANCE COMPANY, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 359

213 So.2d 359

Ted C. ODOM, Plaintiff-Appellant, v. The AMERICAN INSURANCE COMPANY, Defendant-Appellee.

No. 2408.

Court of Appeal of Louisiana, Third Circuit.

July 29, 1968.

Rehearing Denied Aug. 20, 1968.

Concurring Opinion Aug. 29, 1968.

Piccione, Piccione & Wooten, by Charles N. Wooten, Lafayette, for plaintiff-appellant.

Davidson, Meaux, Onebane & Donohoe, by Robert Cabes, Lafayette, for defendant-appellee.

Before TATE, FRUGE and SAVOY, JJ.

FRUGE, Judge.

This is an action on an insurance policy brought by the insured against his injurer. The district court, after an interpretation of the provisions of the insurance policy, held that plaintiff could not recover the sum sought from defendant.

Plaintiff then effected this appeal.

The issue presented for us here is the same as that which confronted the trial court--that is, the reasonable interpretation to be given to the provisions of this contract of insurance. We agree with the conclusion and the reasoning of the trial court and substantially adopt as our own his reasons for judgment.

'Ted C. Odom is suing the American Insurance Company on the medical payment coverage contained in a family combination automobile policy that provides comprehensive liability and accident protection for him and the members of his family. The plaintiff's wife, Patricia Odom, while driving an automobile covered under the terms of the mentioned policy, was severely injured in an automobile collision near Kinder, Louisiana, as a result of being struck by a 1959 Ford automobile owned by Al LeBlanc, and being driven by his son, Luther Lawrence LeBlanc.

'Patricia Odom's injuries necessitated extensive medical expenses which, within the one year period of liability, totalled $6,914.06. Demand was made upon the defendant to pay this sum. Defendant refused contending that its liability under the policy for medical payments was only the sum of $2,000.00. This $2,000.00 has been paid by defendant and plaintiff specifically reserved all rights to collect the balance claimed.

'The policy involved is one commonly referred to as a 'combination' automobile policy. Coverage 'C' relates to automobile medical payments. It reads in part as follows:

"To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, x-ray, and dental services, including prosthetic devices, and necessary ambulance, hospital professional nursing and funeral services:

"Division 1. To or for the named insured and each relative who sustains bodily injury * * * caused by accident:

"(a) While occupying the owned automobile * * * ('(c) through being struck by an automobile)

* * *

* * *

'Under Paragraph IV, Section (d), the following definition is given for two or more automobiles:

"When two or more automobiles are insured hereunder, the terms of this policy shall apply Separately to each, * * *' (Emphasis added.)

'Under the 'conditions' section of the policy on page 3, Section 5 denotes the limits of liability under coverage (c). It states:

"The limit of liability for medical payments stated in the declarations as applicable to 'each person', is the limit of the company's liability for all expenses incurred by or on behalf of each person, including each insured, who sustains bodily injury, sickness, disease or death as the result of any one accident.'

'Under the listed schedules of automobiles and the coverage given to each, the following paragraph exists above the description of the vehicles insured, and the premiums due for each (including medical payments premiums):

"The insurance afforded hereunder is only with respect to such and so many of the following coverages As are indicated by specific premium charge or charges. The Limit of the company's liability against bodily injury medical payments and property damage coverages Shall be as stated on the declarations page of this policy subject to all of the terms of the policy having reference thereto * * *' (Emphasis added.)

'Under this statement there follows a list of the six different vehicles owned by the insured and covered by this policy. The statement of the automobile medical payments reveals that separate and diverse premiums were required for the medical payment coverage on each vehicle covered under the policy.

'Plaintiff contends that it is only reasonable to believe that the additional medical payments premiums charged for the inclusions of the vehicles listed were intended to afford corresponding benefits to the insured, and argues that it is patent from the terms of the policy that the total medical payments exposure under the policy is $12,000.00; this being the concomitant result of the coverage afforded by the six different premiums paid.

* * *

* * *

'The question involved here had been undecided in Louisiana, until recently when the Third Circuit entertained the identical question involved here. In the case of Guillory v. Grain Dealers Mutual Insurance Co., 203 So.2d 762 (La.App.3d Cir., 1967) (rehearing denied, November 27, 1967) (writs denied 251 La. 687, 205 So.2d 605), the court held that under the automobile medical payments clause covering more than one automobile, the insured was not entitled to a double recovery arising out of an injury which occurred while one of the insured automobiles was being operated. The case is identical to the instant case in principle, and the policy provisions and facts of the accident are essentially the same . Therefore, the Guillory case furnishes authority from the Third Circuit Court of Appeal, which holds that only the primary limits of the medical pay coverage, i.e., $2,000.00, is applicable.'

On this appeal, counsel for plaintiff-appellant attempts to distinguish the Guillory case on its facts. Counsel argued in his brief that the facts in Guillory 'did not disclose nor was any mention made that the plaintiff suffered his injuries through being struck by another vehicle', as was the case here.

We feel, however, that whether plaintiff incurred his injury 'while occupying the owned automobile' under Division I(a) or 'through being struck by an automobile' under Division I(c) makes no substantial difference insofar as the maximum recovery stated on the declarations page of the contract. For this reason we feel that the principle announced in the Guillory case is applicable to the instant one.

For these reasons we are of the opinion that the district court properly rejected plaintiff's demands and dismissed his suit.

The judgment of the trial court is therefore affirmed at plaintiff-appellant's cost.

Affirmed.

TATE, J., concurs and will assign reasons in a concurring opinion to be filed later.

On Application for Rehearing.

En Banc.

Rehearing Denied.

TATE, Judge (concurring in denial).

The writer reluctantly concurs in the denial only in deference to the recent decision of his brethren in Guillory v. Grain Dealers Mutual Insurance Co., La.App., 203 So.2d 762, and their general tentative approach to defer re-examination of the principle of decision in that case until the Supreme Court expresses a definitive opinion on the question.

It should, however, be pointed out that our interpretation of the separate medical-payments coverages as affording only one coverage (instead of the six paid for) is against the overwhelming weight of authority to the contrary. See 8 Appleman, Insurance Law & Practice, Section 4896 (text in 1968 pocket parts at footnote 74.21) . Other than our Guillory decision, all decisions (save an early intermediate one criticized by the subsequent cases) which have considered the question have concluded that, for the separately charged premiums for medical-payments coverage, the insured is entitled to receive up to the combined coverage, either because proper construction of the policy so requires or else, if ambiguity is found (our own Guillory case frankly admitted the difficulty of interpreting the clause as it did), then under the settled principle that ambiguities are construed against the insurer which wrote the policy and in favor of affording broad protection.

These decisions, as cited or found by independent research, include: Lavin v. State Farm Mutual Auto. Ins. Co., 193 Kan. 22, 391 P.2d 992 (1964); Central Surety & Insurance Co. v. Elder, 204 Va. 192, 129 S.E.2d 651 (1962); Kansas City Fire & Marine Ins. Co. v. Efferson, 234 Ark. 1100, 356 S.W.2d 613 (1962); Government Employers Ins. Co. v. Sweet, 186 So.2d 95 (Fla.App.1966); Travelers Indemnity Co. v. Watson, 111 Ga.App., 98, 140 S.E.2d 505 (1965); Southwestern Fire and Casualty Co. v. Atkins, 346 S.W.2d 892 (Tex.Civ.App.1961). See also Hale v. Allstate Insurance Co., 162 Tex. 65, 344 S.W.2d 430 (1961).

The sole authority to the contrary is the early California intermediate decision, Sullivan v. Royal Exchange Assurance, 181 Cal .App.2d 644, 5 Cal.Rptr. 878 (1960). The interpretation of the policy provision by this decision has been rejected by all subsequent decisions of other states. See, for instance, the cited Sweet decision, at 186 So.2d 97, and the cited Elder decision, at 129 So.2d 654.

It is true that the result we reached in Guillory on first impression is appealing and seems commonsensical. However, to me it becomes apparent, upon consideration of the policy as a whole and of the purpose and coverage of the medical payments clause, that we fell into error in not according the policy provision the interpretation reached by all other courts (save the intermedial California one) which have considered the question. The writer finds no sound distinction in either Guillory or the present case by which may be avoided the application of the interpretation of the decisions, to the effect that the insured is entitled to the combined total of the multiple medical payments coverages for which he has paid, rather than for one coverage only.

The medical payments provisions of the insurance contract is a separate and distinct contractual arrangement...