Puckett v. Liberty Mut. Ins. Co.
| Decision Date | 05 November 1971 |
| Citation | 477 S.W.2d 811 |
| Parties | Willa Mae PUCKETT et al., Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee. Peggy Lee BEELER, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee. Charles STERN et al., Appellants, v. AETNA CASUALTY & SURETY COMPANY, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Joe G. Leibson, Louisville, for appellants Willa M. Puckett et al.
Alan N. Leibson, Louisville, for appellant Peggy Lee Beeler.
Paul D. Gudgel, Eblen, Howard & Milner, Lexington, Kenneth S. Handmaker, Louisville, for appellants Charles Stern et al.
Kenneth L. Anderson, Louisville, for appellee Liberty Mut. Inc. Co .
Winfrey P. Blackburn, Jr., Stites & McElwain, Louisville, for appellee Aetna Casualty & Surety Co.
GEORGE O. BERTRAM, Special Commissioner.
Three actions have been consolidated on appeal to this court. Two are against Liberty Mutual Insurance Company and one against Aetna Casualty & Surety Company. In the first, Willa M. Puckett and three passengers in her car, Viola Kemp, Lillian Dean and Cylister Boyd, sued Liberty. In the second, Peggy Lee Beeler, also a passenger in Willa's car, by separate action sued Liberty. In the third, Charles Stern and his passenger Leona Stern sued Aetna and the operator of another car. Only Aetna is involved on this appeal in the latter case.
The first two actions arose out of an accident on March 19, 1968, in Jeffersonville, Indiana, between the car driven by Willa Puckett and one driven by William R. McLean, a resident of Indiana who was an uninsured motorist. Willa and her four passengers brought suit only against Liberty, the insurer of the car Willa was driving, in the Jefferson Circuit Court. That court dismissed the complaints.
The third action involved an accident on August 9, 1969, in Cabel County, West Virginia, between Charles Stern's car, one driven by Ruth Loewenfield, and another driven by Roger Damron, an uninsured motorist. Charles and his passenger sued Ruth and Aetna, the insurer of Charles' car, in the Jefferson Circuit Court. They did not sue Roger, the uninsured motorist, who was a resident of West Virginia. The lower court dismissed the complaint as to Aetna and made that judgment final.
The basic question on all three appeals is: May an insured, or beneficiaries under his policy, recover from the insurer under uninsured-motorist coverage without having obtained a judgment against the uninsured motorist, either in a separate action or in the same action in which the insurer is sued (he being made a party to that action)? An ancillary question is whether, in such an action, the insurer can enforce an express provision of its policy that it may require the insured to join the uninsured motorist as a party defendant.
Appellants contend that the uninsured-motorist provisions of the policies created in the appellants a right of direct action against the insurance companies in which action appellants need only prove that they were legally entitled to recover damages against the uninsured motorist, and the amount of those damages. Appellants argue that the obtaining of a judgment by the insured against the uninsured motorist is not a condition precedent to the insurer's liability under the uninsured-motorist coverage. In support thereof appellants cite cases from Arkansas, Illinois, Louisiana, Missouri, New York, North Carolina, Ohio, Pennsylvania, Tennessee and Wisconsin.
Appellees contend that it is essential to recovery on the policy that the uninsured motorist have been judicially declared legally liable, and they argue that where no prior action has been taken against the uninsured motorist or he is not joined as a party to the action against the insurer it is impossible to determine his legal liability for damages. In support thereof appellees cite State Farm Mutual Automobile Insurance Co. v. Girtman, 113 Ga.App. 54, 147 S.E.2d 364, where the Court of Appeals of Georgia said:
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