State Farm Mut. Auto. Ins. Co., Inc. v. Griffin
Decision Date | 21 November 1973 |
Citation | 286 So.2d 302,51 Ala.App. 426 |
Parties | STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, INC. v. Katherine C. GRIFFIN. Civ. 204. |
Court | Alabama Court of Civil Appeals |
Gaines & Hereford, Talladega, for appellant.
Love, Love & Lawrence, Talladega, for appellee.
This is a suit by the insured, Katherine C. Griffin, against her insurer, State Farm Mutual Automobile Insurance Company, Inc. Suit was brought under the uninsured motorist provisions of her policy which provided as follows:
'INSURING AGREEMENT III--UNINSURED AUTOMOBILE COVERAGE
'COVERAGE U--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 sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.
'No judgment against any person or organization alleged to be legally responsible for the bodily injury shall be conclusive, as between the insured and the company, of the issues of liability of such person or organization or of the amount of damages to which the insured is legally entitled unless such judgment is entered pursuant to an action prosecuted by the insured with the written consent of the company.'
The complaint as received by the jury consisted of one count alleging that the plaintiff, insured, while operating a motor vehicle, was injured as a proximate consequence and result of the negligence of Judge B. Highfield, who was an uninsured motorist. The complaint also states that at the time of the injury, the plaintiff's automobile was convered by a policy of insurance with the defendant which contained 'uninsured motorist' provisions.
The jury returned a verdict for the plaintiff-insured in the amount of $10,000 and a judgment was entered in accordance therewith. From this judgment, the defendant-insurer has perfected his appeal to this court.
By appropriate assignments of error, the appellant has presented to this court four issues which must be determined.
Appellant contends that the verdict of the jury is contrary to the evidence in that there was no evidence proving Highfield was uninsured; that appellant should have been allowed to show that appellant had paid Highfield under the liability insurance provisions of the policy on which suit was brought. The appellant also asserts that there is a misjoinder of causes of action in that an action Ex delicto and an action Ex contractu are joined in the same count. Finally, the appellant asserts, as a matter law, that the insured must as a condition precedent to an action against his insurer under uninsured motorist coverage bring suit and obtain judgment against the uninsured motorist.
The tendencies of the evidence reveal the following: On December 16, 1970, at about 5:00 P.M., the plaintiff, Katherine Griffin, was driving a car which collided with one driven by Judge B. Highfield. Plaintiff was behind two cars and pulled out to pass them when she met Highfield's car head-on. Plaintiff alleged that Highfield's headlights were not on and that she could not see the oncoming Highfield vehicle. Highfield contended that his lights had been on since he left his place of business in downtown Talladega.
Further tendencies of the evidence show conflicting testimony as to whether the headlights on Highfield's car were in fact on or off. Nelson Bates, the driver of one of the two vehicles in front of the plaintiff, testified that he did not see any car lights coming toward him; and Roy Finch, a passenger in the Bates car, stated by deposition that he did not see a pair of headlights coming toward him. The appellant introduced testimony by Willie Humphries that when Highfield let him out at his house prior to the accident, the headlights were on. The cars collided on Highfield's side of the road, with the left front portion of each car receiving the damages. Alabama Highway 21 is some twenty-two feet wide.
The plaintiff, Mrs. Griffin, sued her insurance company under the uninsured motorist provisions of the policy. The evidence presented by the plaintiff to show Highfield had no insurance, and thereby was an uninsured motorist, was the testimony of Lewis Willoughby, an insurance adjuster for State Farm Mutual Automobile Insurance Company. Mr. Willoughby testified over objection that he made an investigation for State Farm to determine whether Highfield had a policy of insurance in force and that, to the best of his knowledge, Highfield did not have a policy of insurance on his car. On cross examination of this witness, appellant attempted to show that State Farm paid Highfield some $9,250 under the liability provisions of appellee's policy. Objection to the admission of this evidence was sustained.
As noted, this case presents the question whether an insured must obtain a judgment against an uninsured motorist as a condition precedent to recovery against his insurer under his uninsured motorist policy. It appears that such a determination is a case of first impression in Alabama. 1
At the outset, this court would be remiss in not commenting that we were favored with outstanding briefs by both counsel for appellant and appellee.
Our statute on uninsured motorist coverage appears in Alabama Code, Tit. 36, § 74(62a), and provides in pertinent part as follows:
'No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a 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 limits for bodily injury or death set forth in subsection (c) of section 74(46) of this title, under provisions approved by the commissioner of insurance, 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; provided, that the named insured shall have the right to reject such coverage; and provided further, that unless the named insured requests such coverage in writing, such coverage need not be provided in or supplemental to a renewal policy where the named insured had rejected the coverage in connection with the policy previously issued to him by the same insurer.'
Research reveals that several other jurisdictions have dealt with either identical or similar policy provisions in regard to uninsured motorist coverage as that contained in our statute. The majority of jurisdictions have rejected the view that the insured must first secure a judgment against the uninsured motorist as to fault and damages as a condition precedent to bringing suit against the insurer under the uninsured motorist provisions of the policy. See Hill v. Seaboard Fire and Marine Ins. Co., Mo.App., 374 S.W.2d 606; Wheeless v. St. Paul Fire and Marine Ins. Co., 11 N.C.App. 348, 181 S.E.2d 144; Wright v. Fidelity and Cas. Co. of New York, 270 N.C. 577, 155 S.E.2d 100. See also: Winner v. Ratzlaff, 211 Kan. 59, 505 P.2d 606, and cases cited therein at page 609; Widiss, A Guide To Uninsured Motorist Coverage, § 7.16; Couch On Insurance 2d, Vol. 12, § 45:627.
We are aware that some four jurisdictions appear to have adopted views contrary to the majority. These are the states of Georgia, South Carolina, Virginia, and Tennessee. However, we feel the better reasoned view is that supported by the majority, whereby the insured is not required to first sue the uninsured motorist, but may directly sue the carrier of the insurance policy.
The legislative purpose in enacting statutes providing for uninsured motorist coverage is to close the gaps inherent in motor vehicle financial responsibility and compulsory insurance legislation. Uninsured motorist coverage is intended, within fixed limits, to provide financial...
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