Smith v. Allstate Ins. Co.
| Decision Date | 15 June 1970 |
| Parties | , 224 Tenn. 423 Albert E. SMITH, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee. |
| Court | Tennessee Supreme Court |
Dennis L. Tomlin, Nashville, for appellant.
T. T. McCarley and William Carter Conway, Nashville, for appellee; Edwards, Schulman, McCarley, Hollins & Pride, Nashville, of counsel.
This is a declaratory judgment action brought by the insured, hereinafter referred to as the complainant, for a construction of certain provisions of the defendant Allstate's uninsured motorist endorsement and the Uninsured Motorist Act of Tennessee (T.C.A. Sections 56--1148 through 56--1153). The Chancellor held that the 'physical contact' requirement contained in the defendant's policy is valid under the Uninsured Motorist Act; and that the so-called set-off provision of the uninsured motorist endorsement is likewise valid.
The case was tried on a stipulation of facts, which are as follows: On May 25, 1968, the complainant was run off the road by an unidentified vehicle, causing his automobile to strike a rock wall and utility pole; and the 'unidentified motor vehicle did not come into 'physical contact' with the complainant's automobile.'
Medical payments were made to the complainant, his wife and son under the 'Automobile Medical Payments' provision of his policy. However, the complainant seeks additional coverage under the uninsured motorist endorsement of his policy and a declaration that the endorsement's definition of 'hit-and-run automobile' is void to the extent that it required 'physical contact' between the unidentified car and the car which the insured is occupying. The defendant denied liability under the above endorsement on the ground that there was no 'physical contact.'
'Further, the complainant insists that the * * * defendant has no right to deduct payments already under the medical payments provision of said policy from any payments which may be made under the Coverage 'S' endorsement,' that being the uninsured motorist provision.
T.C.A. Section 56--1148 provides in part:
'Automobile liability insurance--Uninsured motorist--Required coverage.--
'No automobile liability insurance, covering liability arising out of the ownership, maintenance, or use of any 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 not less than limits for bodily injury or death described in § 59--1206, subject to provisions filed with and approved by the insurance commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom * * *'
The complainant's policy, which was in force at the time of the accident, includes an uninsured motorist endorsement, providing for 'Protection Against Bodily Injury by Uninsured Automobiles.' In the policy the defendant agreed to 'pay all sums which the insured * * * shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile.' One of the meanings ascribed to 'Uninsured automobile' is a 'hit-and-run automobile,' which in turn is defined in the policy as 'an automobile which causes bodily injury to an insured arising out of physical contact of such automobile * * * with an automobile which the insured is occupying at the time of the accident * * *' Pursuant to Section 56--1148, this endorsement was submitted to and approved by the insurance commissioner.
Although the complainant has raised numerous issues in his assignments of error, the stipulations entered into between the parties provided that there were only two issues to be adjudicated by the Chancellor, namely:
'1. Whether the 'physical contact' requirement of the 'Coverage S' endorsement in the definition of a 'hit-and-run' vehicle * * * is valid under the Uninsured Motorist Act of Tennessee, being Section 56--1148 through Section 56--1153, Tennessee Code Annotated.
'2. Whether the provisions of said 'Coverage S' endorsement providing as follows:
'6(d) the company shall not be obligated to pay under this Coverage that part of the damages which the insured may be entitled to recover from the owner or operator of an uninsured automobile which represents expenses for...
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