Southern Farm Bureau Cas. Ins. Co. v. Roberts, 48386
| Decision Date | 08 December 1975 |
| Docket Number | No. 48386,48386 |
| Citation | 323 So.2d 536 |
| Parties | SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY v. Mary ROBERTS, Guardian of Estate of Drexell Ray Roberts, a minor. |
| Court | Mississippi Supreme Court |
Heidelberg, Woodliff & Franks, W. Swan Yerger, Robert T. Gordon, Jr., Jackson, for appellant.
Liston & Upshaw, Winona, for appellee.
Before GILLESPIE, C.J., and ROBERTSON and BROOM, JJ.
The principal question raised on the appeal of this case is whether the $10,000 coverage afforded by the uninsured motorist endorsement to three separate policies issued by the same insurer, Southern Farm Bureau Casualty Insurance Company, to the same insured, Henry Roberts, the father of Drexell Ray Roberts, minor, can be aggregated or stacked to cover damages for bodily injuries suffered as a proximate result of the negligence of an uninsured motorist.
The Circuit Court of Montgomery County sustained a motion by the Plaintiff, Mary Roberts, mother and guardian of Drexell Ray Roberts, to strike the affirmative defense included in the insurer's answer, that its liability, if any, was limited to $10,000, the coverage afforded by only one uninsured motorist endorsement, even though a separate endorsement was included in each of three separate insurance policies.
About 7:15 p.m. on March 9, 1973, 17-year-old Drexell Ray Roberts was riding as a passenger on the front seat of a panel truck driven by his cousin, 16-year-old Michael Roberts. As they proceeded south on State highway 407 near Winona, Mississippi, they overtook Robert White, who was also driving south on highway 407 in his 1963 Chevrolet. As Michael Roberts started to pass, White attempted to turn left into Milligan Springs Road. White saw Roberts' panel truck too late to get back in his southbound lane and White's car hit the right front of Roberts' truck, causing it to go off of the east side of highway 407 and wreck. Passenger Drexell Roberts was badly injured.
Appellee Mary Roberts settled the claim of her minor son, Drexell Roberts, against Michael Roberts, the driver of the panel truck in which Drexell was riding, with Michael Roberts' insurance carrier for the sum of $10,500, and executed a covenant not to sue.
Robert White was an uninsured motorist, and Mary Roberts, mother of Drexell, brought suit against Southern Farm Bureau Casualty Insurance Company, who had issued three separate policies, each on a different automobile, to Henry Roberts, father of Drexell Roberts. Suit was brought for $30,000, inasmuch as an uninsured motorist endorsement was included in each policy. The jury returned a verdict for $30,000.
Although there are 15 assignments of error, most of them are encompassed in these two issues:
1. Whether the uninsured motorist clause in three separate and distinct contracts of insurance can be aggregated, and
2. If such endorsements can be aggregated, is the insurer entitled to a credit of $10,500, the amount recovered in a settlement with the other tort feasor, Michael Roberts?
Mississippi Code Annotated section 83-11-101 (Supp.1975), provides:
'No automobile liability insurance policy or contract shall be issued or delivered after January 1, 1967, unless it contains an endorsement or provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages for bodily injury or death from the owner or operator of an uninsured motor vehicle, within limits which shall be no less than those set forth in the Mississippi Motor Vehicle Safety Responsibility Law, as amended, under provisions approved by the commissioner of insurance; . . ..' (Emphasis added).
It was stipulated at the trial that three separate policies of insurance on three separate motor vehicles had been issued by Southern Farm to Henry Roberts, father of Drexell Roberts; that the three policies were in effect at the time of the accident; and that each of the three contracts of insurance contained an uninsured motorist endorsement, providing:
(Emphasis added).
$10,000 was the minimum limit set by statute for each uninsured motorist endorsement. (Mississippi Code Annotated Section 63-15-43(2)(b) (Supp.1975)).
It is clear to us under the secific language of each endorsement to each separate policy and under the specific requirement of the statute, as to what each 'automobile liability insurance policy or contract' shall contain, that the appellee can aggregate the $10,000 coverage under each endorsement until her ward and son, Drexell, has recovered 'all sums which he shall be legally entitled to recover as damages for bodily injury or death from the owner or operator of an uninsured motor vehicle.'
As mandatorily required by statute, each policy of insurance contained the uninsured motorist endorsement and each policy was complete within itself.
This same question was before the...
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