Rodriquez v. Maryland Indem. Ins. Co.

• Decision Date: 14 August 1975
• Docket Number: CA-CIV,No. 1,1
• Citation: 539 P.2d 196,24 Ariz.App. 392
• Parties: John RODRIQUEZ and Amanda Rodriquez, husband and wife, and Ruben R. Rodriquez, their son, Appellants, v. MARYLAND INDEMNITY INSURANCE COMPANY, a Foreign Corporation, Appellee. 2579.
• Court: Arizona Court of Appeals

Page 196

539 P.2d 196

24 Ariz.App. 392

John RODRIQUEZ and Amanda Rodriquez, husband and wife, and Ruben R. Rodriquez, their son, Appellants, v. MARYLAND INDEMNITY INSURANCE COMPANY, a Foreign Corporation, Appellee.

No. 1 CA-CIV 2579.

Court of Appeals of Arizona, Division 1, Department A.

Aug. 14, 1975.

Rehearing Denied Sept. 10, 1975.

Review Denied Oct. 16, 1975.

[24 Ariz.App. 393] Douglas S. Stanley, Yuma, for appellants.

Renaud, Cook, Miller & Cordova, P.A. by John H. Seidel, Phoenix, for appellee.

OPINION

OGG, Presiding Judge.

The plaintiff-appellee Maryland Indemnity Insurance Company brought a declaratory judgment action to determine what coverage applied to the defendants-appellants Rodriquez under an insurance policy issued by the Insurance Company to Rodriquez. The specific question is whether there was coverage under the uninsured motorist provisions of the policy. Both parties moved for summary judgment and the court ruled for the Insurance Company, denying any coverage to Rodriquez under the policy. Rodriquez brings this appeal.

The agreed statement of facts are essentially:

On January 23, 1972, Ruben R. Rodriquez, son of John and Amanda Rodriquez, who resided with his parents, was struck and injured while riding his motorcycle. At the time of the accident Ruben's father was the named insured on an insurance policy which had previously been issued by Maryland Indemnity Company. The policy contained an endorsement providing uninsured motorist coverage. The motorcycle was not listed as an insured automobile under the policy. The automobile that struck Ruben was an uninsured vehicle under the policy. Rodriquez paid an additional $4 premium for each of his three automobiles covered by the uninsured motorist endorsement.

Two issues are presented by this appeal:

1. Is the exclusionary clause in the uninsured motorist portion of the insurance policy valid and binding?

2. If the exclusionary clause is valid and binding does the exclusion of coverage when insured is riding in a non-insured owned automobile also exclude coverage when insured is riding on a non-insured owned motorcycle?

The pertinent portion of the exclusion in the uninsured motorist portion of the policy reads:

'This endorsement does not apply: * * * (b) to bodily injury to an insured while occupying an automobile (other than an insured automobile) owned by a named insured or any relative resident in the same household . . .'

The parties agree that under the provisions of § 20--259.01, 7 A.R.S., all insurance companies selling liability insurance must offer coverage to protect against uninsured motorists. The insured claims the payment of the $4 fee for coverage on any one vehicle gives the insured coverage when injured anytime or anywhere by an uninsured motorist. The charging of another premium for each additional vehicle does nothing to increase the risk or coverage.

The Insurance Company argues that its risk and coverage increases with each additional vehicle owned by a family and that it would be unreasonable to force such coverage unless it is paid an additional premium for each additional vehicle covered under the uninsured motorist endorsement.

We are aware that there is competent authority from other states supporting both positions presented in this argument. Appellee's position: Holcomb v. Farmers Insurance Exchange, 254 Ark. 514, 495 S.W.2d 155 (1973); Barton v. American Family Mutual Insurance Co., 485 S.W.2d 628 (Mo.App.1972); Shipley v. American Standard Insurance Company of Wisconsin, 183 Neb. 109, 158 N.W.2d 238 (1968).

Appellants' position: State Farm Mutual Automobile Insurance Company v. Hinkel, 87 Nev. 478, 488 P.2d 1151 (1971); Mullis v. State Farm Mutual Automobile Insurance Company, 252 So.2d 229 (Fla.1971); Cannon v. American Underwriters, Inc., 150 Ind.App. 21, 275 N.E.2d 567 (1971).

This court has had this exact question before it in Chambers v. Owens, 22 Ariz.App. 175, 525 P.2d 306 (1974) and in Owens v. Allied Mutual Insurance Company, 15 Ariz.App. 181, 487 P.2d 402 (1971). See also Farmers Insurance Exchange v. Smith, 15 Ariz.App. 42, 485 P.2d 866 (1971). In these cases we held that there was nothing in the law of Arizona (§ 20--259.01, 7 A.R.S.) that required insurance companies to provide uninsured motorist coverage under one policy to additional vehicles owned by the insured where he elected not to pay the premium for such coverage. We reasoned that to hold otherwise would allow an insured to purchase one liability policy with uninsured motorist coverage and thereafter have such coverage extended to cover himself and occupants while driving any number of vehicles owned by him without paying any additional premium for this added coverage and risk. Rodriquez argues that the uninsured motorist coverage here covers the insured as an individual similar to a health and accident policy. The Insurance Company maintains that the policy is paid on the...