Pettid v. Edwards

• Decision Date: 01 April 1976
• Docket Number: No. 40273,40273
• Citation: 240 N.W.2d 344,195 Neb. 713
• Parties: Fred W. PETTID, By and Through his Father and Next Friend, Fred J. Pettid, Appellee, v. Michael EDWARDS, Appellee, Western Casualty & Surety Company, Intervener-Appellant.
• Court: Nebraska Supreme Court

Page 344

240 N.W.2d 344

195 Neb. 713

Fred W. PETTID, By and Through his Father and Next Friend, Fred J. Pettid, Appellee, v. Michael EDWARDS, Appellee Western Casualty & Surety Company, Intervener-Appellant.

No. 40273.

Supreme Court of Nebraska.

April 1, 1976.

Syllabus by the Court

1. The parties to an insurance contract may contract for any lawful coverage and the insurer may limit its liability and impose restrictions and conditions upon its obligation under the contract not inconsistent with public policy or statute.

2. An insurance policy should be considered as any other contract and be given effect according to the ordinary sense of the terms used, and if they are clear they will be applied according to their plain and ordinary meaning.

3. The purpose of the uninsured motorist statute is to give a person injured by an uninsured motorist the same protection he would have had if he had been injured in an accident caused by an automobile covered by a standard liability policy.

4. The Nebraska uninsured motorist statute does not prohibit a limitation of liability to the minimum limits required by statute in each policy issued even though a single policy may insure more than one automobile.

Pilcher, Howard & Dustin, Omaha, for intervener-appellant.

J. Patrick Green, John J. Higgins, Omaha, for Pettid et al.

Paul E. Watts, Omaha, for Edwards.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and PRODKEY, JJ.

BOSLAUGH, Justice.

This case involves a controversy concerning the policy limits under the medical payments coverage and uninsured motorists coverage of an automobile liability insurance policy issued to the plaintiff by the intervener, The Western Casualty and Surety Company. There is no dispute concerning the facts.

On February 19, 1973, Fred W. Pettid, a minor 8 years of age, was crossing 76th Street in Omaha, Nebraska, as a pedestrian when he was struck by an automobile operated by Michael Edwards. As a result of the accident Fred W. Pettid sustained fractures of the right clavicle, right humerus, and left femur; a laceration of the left neck; and a cerebral concussion. His medical and hospital expenses amounted to $3,179.55. This action was commenced against Michael Edwards on June 15, 1973, by Fred J. Pettid, as father and next friend of Fred W. Pettid, to recover the damages sustained by Fred W. Pettid in the accident.

The automobile which was being operated by Michael Edwards at the time of the accident was insured by the Great Plains Insurance Company, but the policy contained an endorsement specifically excluding coverage as to Michael Edwards. As a result, Michael Edwards was an uninsured motorist at the time of the accident.

On the date of the accident an automobile liability insurance policy issued to Fred J. Pettid by the intervener was in force. The policy provided both medical payments coverage, Coverage 'C,' and uninsured motorist coverage, Coverage 'K'.

The intervener was allowed to intervene in this action to protect its interest under the uninsured motorist coverage of its policy. Thereafter, the action proceeded as a suit upon its policy.

The policy issued by the intervener insured two automobiles owned by Fred J. Pettid, a 1969 Pontiac station wagon and a 1970 Pontiac 2-door hardtop. The policy provided medical payments coverage, in the amount of $1,000 for each person, and uninsured motorist coverage, in the amount of $10,000 for each person, for each automobile and separate premiums were charged for each coverage for each automobile.

Paragraph 5 under 'Conditions' in the policy provides in part as follows: '5. Limits of Liability: Regardless of the number of automobiles to which this policy applies: * * * Coverage C: The limit of liability for medical payments stated in the declarations as applicable to 'each person' is the limit of The Western's liability for all expenses incurred by or on behalf of each person, including each insured, who sustains bodily injury as the result of any one accident. * * * Coverage K: The limit of liability for coverage K stated in the declarations as applicable to 'each person' is the limit of The Western's liability for all damages because of bodily injury sustained by one person as the result of any one accident * * *.'

The intervener contends its liability is limited to $1,000 under the medical payments coverage and $10,000 under the uninsured motorist coverage. Its tender of those amounts to the plaintiff was refused. The plaintiff contends the maximum liability of the intervener is $2,000 under the medical payments coverage and $20,000 under the uninsured motorist coverage.

The trial court found the plaintiff was entitled to recover $18,500 and made no allocation of the judgment between the coverages involved. The intervener has appealed. There is no cross-appeal.

The medical payments coverage provided in the intervener's policy is in the nature of a limited accident policy. In general, the insurer agrees to pay reasonable expenses incurred within 1 year of the date of the accident by each person who sustains bodily injury cased by accident while occupying the automobile, or to each insured who sustains bodily injury caused by accident while occupying or being struck by an automobile. It is a coverage provided voluntarily by the insurer and is strictly a matter of contract between the parties.

The parties to an insurance contract may contract for any lawful coverage and the insurer may limit its liability and impose restrictions and conditions upon its obligation under the contract not inconsistent with public policy or statute. Mills v. Aetna Ins. Co., 168 Neb. 612, 96 N.W.2d 721. An insurance policy should be considered as any other contract and be given effect according to the ordinary sense of the terms used, and if they are clear they will be applied according to their plain and ordinary meaning. Preferred Risk Mut. Ins. Co. v. Continental Ins. Co., 172 Neb. 179, 109 N.W.2d 126.

The plain language of the policy in this case limited the liability of the intervener to the limit stated in the declarations as applicable to each person, Regardless of the number of automobiles to which the policy applied. It is difficult to see how the intervener could have stated more clearly the limit for medical payments coverage would be $1,000 per person per accident although the policy might apply to more than one automobile. In view of the language used the plaintiff could have no reasonable expectation that the policy did not mean exactly when it said.

In determining the question concerning the uninsured motorist coverage an additional consideration is involved. Section 60--509.01, R.R.S.1943, provides that: '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 delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in section 60--509, under provisions approved by the Director of Insurance, 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; * * *.' We have said the purpose of the statute is to give a person injured by an uninsured motorist the same protection he would have had if he had been injured in an accident caused by an automobile covered by a standard liability policy. Stephens v. Allied Mut. Ins. Co., 182 Neb. 562, 156 N.W.2d 133; State Farm Mut. Auto. Ins. Co. v. Selders, 187 Neb. 342, 190 N.W.2d 789.

The requirement of the statute is that every automobile liability insurance Policy include uninsured motorist coverage with limits as set forth in section 60--509, R.R.S.1943, unless such coverage is rejected by the insured. There is no requirement in the statute that if coverage is provided for more than one automobile in a single policy, each coverage shall be considered as if it were provided by a separate policy.

We have held that the limits of uninsured motorist coverage cannot be reduced by other coverages in the policy, or by other insurance or excess escape clauses, and that where separate policies insuring different automobiles are issued to the same insured, the insured is entitled to the benefit of the full coverage in each policy. Stephens v. Allied Mut., Ins. Co., supra; Bose v. American Family Mut. Ins. Co., 186 Neb. 209, 181 N.W.2d 839; Protective Fire & Cas. Co. v. Woten, 186 Neb. 212, 181 N.W.2d 835. Essentially, the question in this case is whether the insurer can by appropriate language limit its liability in a single policy to the limits required by statute even though the policy insures more than one automobile.

In extensive briefs the parties have discussed in detail many of the decisions from other jurisdictions which have considered the...