Shipley v. American Standard Ins. Co. of Wis.

• Decision Date: 19 April 1968
• Docket Number: No. 36752,36752
• Citation: 183 Neb. 109,158 N.W.2d 238
• Parties: Leon B. SHIPLEY, Appellant, v. AMERICAN STANDARD INSURANCE COMPANY OF WISCONSIN, a Foreign Insurance Corporation, Appellee.
• Court: Nebraska Supreme Court

Page 238

158 N.W.2d 238

183 Neb. 109

Leon B. SHIPLEY, Appellant, v. AMERICAN STANDARD INSURANCE COMPANY OF WISCONSIN, a Foreign Insurance Corporation, Appellee.

No. 36752.

Supreme Court of Nebraska.

April 19, 1968.

Syllabus by the Court

1. An uninsured motorist endorsement should be interpreted in light of statutory requirements concerning coverage.

2. An insurance policy should be interpreted in accordance with reasonable expectations of the insured at the time of the contract.

3. In an uninsured motorist endorsement that is inapplicable to bodily injury to an insured in the operation of an automobile owned by him without applicable bodily injury liability coverage, the word 'automobile' in the exclusion clause ordinarily includes motorcycles.

Haney, Walsh & Walentine, Michael J. Dugan, Omaha, for appellant.

Boland, Mullin, Walsh & Cooney, Omaha, for appellee.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.

SMITH, Justice.

An uninsured motorist endorsement issued in March 1966, formed part of plaintiff's automobile policy with provisions for bodily injury liability coverage. The declaration described a Chevrolet automobile but not the 'BSA' motorcycle that plaintiff also owned. While he was operating the motorcycle in May 1966, it collided with a Honda motorcycle driven by Terry Lee Santo, who was uninsured. This action on the uninsured motorist endorsement was dismissed on the ground that no cause of action was stated. Plaintiff has appealed.

Defendant promised in the endorsement 'To pay all sums which the insured * * * shall be * * * entitled to recover as damages (for bodily injury) from the * * * operator of an uninsured automobile * * *.' The endorsement did not apply, however, 'to bodily injury to an insured while occupying an automobile (other than an insured automobile) owned by the named insured * * *.' Those provisions are central to the controversy.

The parties concede that the phrase 'uninsured automobile' in effect includes motorcycles, but they do so for different reasons. Defendant contends that 'automobile' throughout the endorsement includes motorcycles and that the endorsement does not apply in view of the exclusion clause. Plaintiff contends that a motorcycle is not an automobile but that coverage exists because the Legislature framed section 60--509.01, R.S.Supp., 1965, in terms of motor vehicles. The relevant part of the statute generally prohibits delivery of an automobile liability policy 'unless coverage is provided * * * for the protection of persons insured thereunder who are legally entitled to recover damages from * * * operators of uninsured motor vehicles * * *.'

The significance of 'automobile' may be affected by other provisions of the endorsement as follows: 'This endorsement forms a part of the policy * * *. II. Definitions * * * The term 'insured automobile' means an automobile to which the Bodily Injury Liability coverage of the policy applies, provided such automobile is: (1) owned by the insured named in the declaration of the policy * * *. * * * The term 'uninsured automobile' shall not include: * * * (iv) a land motor vehicle or trailer, if operated on rails or crawler-treads * * *. * * * CONDITIONS * * * None of the Insuring Agreements * * * of the policy shall apply to the insurance afforded by this endorsement * * *.'

Declarations of the policy and endorsement contain the following: 'Item 2. Described Automobile * * * 49 CHEV COUP * * *.' A definition in provisions for liability coverage reads: "automobile,' except where stated to the contrary, means 1. Described Automobile--The motor vehicle or trailer described in this policy.'

'Automobile' is a popular word in uninsured motorist...