Simmons v. Hartford Acc. & Indem. Co.

• Decision Date: 04 November 1975
• Docket Number: No. 46724,46724
• Citation: 543 P.2d 1384,1975 OK 155
• Parties: Elliott D. SIMMONS, Appellant, v. HARTFORD ACCIDENT & INDEMNITY COMPANY, a Foreign Corporation, and Progressive Casualty Insurance Company, a Foreign Corporation, Appellees.
• Court: Oklahoma Supreme Court

Page 1384

543 P.2d 1384

Elliott D. SIMMONS, Appellant, v. HARTFORD ACCIDENT & INDEMNITY COMPANY, a Foreign

Corporation, and Progressive Casualty Insurance

Company, a Foreign Corporation, Appellees.

No. 46724.

Supreme Court of Oklahoma.

Nov. 4, 1975.

Rehearing Denied Jan. 13, 1976.

Robert T. Keel, Oklahoma City, for appellant.

Dale Reneau, Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, for appellee, Hartford Accident & Indemnity Co.

Clayton B. Pierce, John R. Couch, Oklahoma City, for appellee, Progressive Casualty Ins. Co.

BARNES, Justice:

The question presented by Appellant is whether, as to him, the vehicle in which he was riding at the time of the accident in question was uninsured within the meaning of Title 36 O.S.1971, § 3636 (Uninsured Motorist Coverage), and the insurance policies then in force.

Appellant Simmons' injuries and damages were admittedly caused by the negligence of the driver of the car in which he was a passenger. Hartford Accident & Indemnity Company (Hartford) had issued a policy of insurance on the automobile in which Appellant was riding, with limits of $5,000.00 for injury to one person and $10,000.00 for injury to two or more persons. Admittedly the driver of the car was insured under the terms of the policy, and Hartford had expended the sum of $9,211.30 in settlement of claims arising out of the accident to occupants of the other car involved in the accident. Hartford tendered to Appellant Simmons the unexpended balance ($788.70) of the $10,000.00 liability assumed by it on account of the negligence of the driver of the car in which Appellant Simmons was riding. Simmons refused the tender, contending that in order to satisfy the requirement of 'insured motorist' the limit of liability should be $5,000.00 for each person injured, irrespective of the number of persons injured. He further reasoned that since, in his opinion, the driver of the car in which he was riding was uninsured as to him, then he would be permitted to invoke the uninsured motorist benefits of his own policy with Progressive Casualty Insurance Company, as well as the uninsured motorist coverage of the Hartford policy.

The other car and driver involved in the accident were not covered by liability insurance. The driver of that car, Darlene Johnson, was joined as a party defendant in an earlier action, along with the Estate of Carvin Ballard, deceased, on the theory that they were joint tort-feasors. Service was never obtained upon Darlene Johnson, and Appellant recovered a $15,000.00 judgment against Earlie Ballard, Administrator of the Estate of Carvin Ballard, deceased. Appellant then brought this suit against Hartford and Progressive.

The case hinges upon the interpretation of 47 O.S.1971, § 7--204:

'(a) No policy . . . shall be effective . . . unless issued by an insurance company or surety company . . . unless such policy or bond is subject, if accident has resulted in bodily injury or death, to a limit, exclusive of interest and costs, of not less than Five Thousand Dollars ($5,000.00) because of bodily injury to or death of one person in any one accident and, subject to said limit for one person, to a limit of not less than Ten Thousand Dollars ($10,000.00) because of bodily injury to or death of two or more persons in any one accident . . ..'

and 36 O.S.1971, § 3636:

'(B) The policy (liability coverage for bodily injury) shall provide coverage therein or supplemental thereto 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. Coverage shall be not less than the amounts of limits prescribed for bodily injury or death for a policy meeting the requirement of 47 O.S.1961, § (7--204) . . ..

'(C) For the purposes of this coverage the term 'uninsured motor vehicle', shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle where the liability insurer thereof is unable to make payment with respect to the legal liability of its insured within the limits specified therein because of insolvency.'

and the uninsured motorist provision in Progressive's policy:

'Coverage I--Damages for Bodily Injury Caused by Uninsured Automobiles. To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury. . . .

* * *

* * *

"Uninsured automobile' . . . means:

(a) an automobile or trailer with respect to the ownership . . . in at least the amounts specified by the financial responsibility law of the state in which the insured automobile is principally garaged, no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person . . . or with respect to which there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same denies coverage thereunder. . . .'

We have not previously passed on the meaning of uninsured motorist as used in § 3636, supra, but a number of the courts have.

In Villarreal v. Texas Farmers Ins. Co. (Tex.Civ.App.), 510 S.W.2d 633, the Court said:

'The terms insured and uninsured are words of common meaning and understanding. An insured is a person whose life or property is insured by a policy of insurance. The prefix 'un' means not! Automobile liability insurance is insurance that provides protection against loss from or legal liability for damages arising out of the ownership, maintenance, or operation of a motor vehicle. It is the duty of the courts to give full recognition to the legislative intent. When the intent is plainly expressed in the language of a statute, we must give effect to such language without attempting to construe or give it a meaning that its ordinary signification does not import. The definitions of an uninsured automobile in the respective policies of these plaintiffs do not contravene the intent and purpose of the statute in question. See Detrick v. Aetna Casualty and Surety Company, 261 Iowa 1246, 158 N.W.2d 99 (1968).

'Here Gerald Mitchell was the owner of a policy of liability insurance. He was insured in the amount required by the Texas Motor Vehicle Safety Responsibility Law. Mitchell was insured under any definition of the word, and in particular under the definition of 'uninsured automobile' which is contained in the uninsured motorist's provisions of the Standard Texas Family and Automobile insurance policy. Mitchell had insurance in the amount that was required under Texas law. Mitchell's liability carrier was not insolvent. The company did not deny coverage. It is clear to us that Mitchell was not an uninsured motorist so that the uninsured motorist provision in plaintiffs' insurance policies could come into effect.

'. . . Our Supreme Court has approved the holding in Kemp v. Fidelity & Casualty Co. of New York, supra, which is contrary to Porter (Porter v. Empire Fire & Marine Ins. Co., (106 Ariz.274) 475 P.2d 258).'

In Kemp v. Fidelity & Casualty Co. of New York (Tex.Civ.App.), 504 S.W.2d 633, the Texas Court said:

'Appellants rely upon Porter v. Emprire Fire & Marine Insurance Company, 106 Ariz. 274, 475 P.2d 258, which fully supports their contention. We choose, however, not to follow the reasoning and rationale of Porter. It is true, as observed in Porter, the appellants would have been in better position if the tort-feasor Smith had carried no liability insurance. While this is true in this particular case, we do not feel that this is sufficient reason to enlarge the meaning of words which are clear and unambiguous.'

See, also, McMinn v. New Hampshire Ins. Co. (Miss.), 276 So.2d 682; Chandler v. Government Employees Ins. Co., 5 Cir., 342 F.2d 420; Detrick v. Aetna Casualty & Surety Co., 261 Irowa 1246, 158 N.W.2d 99; Smiley v. Estate of Toney, 44 Ill.2d 127, 254 N.E.2d 440; Lund v. State Farm Mutual Automobile Ins. Co. (W.D.Okl.), 342 F.Supp. 917; and Darrah v. California S.A. Ass'n, 259 Cal.App.2d 243, 66 Cal.Rptr. 374, all to the effect that a motorist is not an uninsured motorist if he carries the minimum coverage required by their statutes.

Appellant, in fact, is contending that 36 O.S.1971, § 3636, requires $5,000.00 coverage for each person injured in an accident. This is contrary to the plain language and plain intent of the statutes heretofore set out. Decedent Ballard had insurance, the liability limits of which met the statutory requirements, i.e., $5,000.00 and $10,000.00.

We further note that uninsured motorist coverage is defined in the policy as being 'in at least the amounts specified by the financial responsibility law of the State.'

It is the province of this Court to interpret to statute, and the fact that it does not provide adequate minimums to take care of Appellant's injuries is a matter for the Legislature to correct, rather than one for this Court to rewrite. We find that decedent Ballard was not an uninsured motorist and that the summary judgment of the trial court in favor of the insurance companies was correct because the Bruton vehicle was covered by a statutorily adequate liability policy and hence it was not an 'uninsured vehicle' as the term is defined in the insurance policies in question and as provided for in the statutes of the State of Oklahoma. Under the present uninsured motorist statute a driver or car is insured if it has minimum coverage of $5,000.00 for one person and $10,000.00 for two or more persons injured in one accident. We do not interpret this to mean a minimum of $5,000.00 for each individual who might be injured.

Certiorari granted; Court of Appeals reversed, and judgment of the trial court affirmed.

DAVISON, IRWIN, LAVENDER and SIMMS, JJ., concur.

WILLIAMS, C.J., HODGES, V.C.J., and BERRY and D...