State Farm Mut. Auto. Ins. Co. v. Nester
| Decision Date | 31 October 1984 |
| Docket Number | No. 54437,54437 |
| Parties | STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. James NESTER and Mary Nester. |
| Court | Mississippi Supreme Court |
James N. Compton, Carter O. Bise, Bryan, Nelson, Allen, Schroeder & Compton, Biloxi, for appellant.
Ben F. Galloway, Owen, Galloway & Dickinson, Gulfport, for appellees.
Before ROY NOBLE LEE, P.J., and DAN M. LEE and ROBERTSON, JJ.
This is an appeal from the Circuit Court of Harrison County wherein the cause was heard by the circuit judge, sitting without a jury on facts stipulated to by the parties. The circuit court held that appellee, Mary Nester, was entitled to coverage under the uninsured motorists coverage of an insurance policy on her car paid for by her father, appellee James Nester. The court entered a judgment against State Farm Mutual Automobile Insurance Co. (State Farm) in the amount of $40,000. From the circuit judge's ruling, State Farm brings this appeal and assigns as error:
The Trial Court erred as a matter of law in holding that Mary Nester was entitled to uninsured motorist benefits from the appellant State Farm Mutual Automobile Insurance Company, because her injuries were neither caused by an uninsured motorist, nor an uninsured motor vehicle, nor another and separate motor vehicle owned or operated by one without liability insurance.
1. The Plaintiffs, James Nester and Mary Nester, are adult resident citizens of Harrison County, Mississippi, First Judicial District.
2. Mary Nester is the daughter of James Nester and resides with her father and mother, Jessie Nester, at Route 1, Box 591, Commission Road, Long Beach, Mississippi.
3. The Defendant, State Farm Mutual Automobile Insurance Company, hereinafter referred to as State Farm, is an Illinois corporation qualified to do business in the State of Mississippi.
4. The Defendant, Henry Council, Jr., is an adult resident citizen of Harrison County, Mississippi, First Judicial District.
5. Henry Council is an issuing agent of State Farm and maintains his sales office at 206 Jeff Davis Avenue, Long Beach, Mississippi.
6. On August 22, 1981, one Patrick Sullivan met Mary Nester after she got off work. They went to D. J.'s, a stereo lounge in Biloxi, in Mary Nester's car. They left, with Sullivan driving and Nester a passenger, and were en route elsewhere when an accident occurred at about 1:58 a.m. on August 23. The accident was proximately contributed to by the negligence of Patrick Sullivan and involved a collision with a City of Biloxi police car. Mary Nester was injured in the accident, her injuries including: ruptured spleen, fracture of the pelvis, fracture of the right clavicle, cerebral concussion and fracture of the right maxillary lateral incisor.
7. Mary Nester was the record owner of the 1974 Mustang, and James Nester, the named insured on the State Farm policy covering the 1974 Mustang. Patrick Sullivan had no independent liability insurance coverage. James Nester and Jessie Nester had forbidden Mary Nester to allow anyone else to drive the car, and in particular, Patrick Sullivan. Patrick Sullivan had driven Mary's car before and was driving with her permission the night of the accident. Mary was the primary driver as well as the owner of the Mustang.
8. The State Farm policy covering the 1974 Mustang forbids Mary Nester of the named insured, James Nester, from making a claim under the liability coverage of the policy. Specifically, no liability claim can be made against what the policy defines as a permissive operator.
9. At the time of the accident, James Nester was the "named insured" on four separate State Farm automobile policies issued through Henry Council, covering the following vehicles together with 12% interest from the date of judicial demand. All costs are assessed against defendant.
1) Policy 145-6836-F09-24 1974 Mustang
2) Policy 127-2109-021-24 1971 Firebird
3) Policy 97-7108-A04-24G 1979 Firebird
4) Policy 97-7109-A04-24D 1967 Chevrolet
REVERSED AND RENDERED.
10. The State Farm policies shall hereinafter be referred to as policies "One", "Two", "Three", and "Four". Each policy covered by the terms of State Farm policy form 9824.1, a copy of which is attached hereto as Exhibit A.
11. Each policy had uninsured motorist coverage for personal injury in the amount of $10,000.00 per policy or a total of $40,000.00 coverage available if all four policies were determined by the Court to be applicable.
12. Policy "One" covering the 1974 Mustang, owned by Mary Nester, was rated by State Farm for use by a female driver, although James Nester appears to be the "named insured" on policy "One".
13. As a result of the injuries Mary Nester sustained in the accident of August 23, 1981, she incurred $7,238.00 in medical expenses.
14. State Farm has issued Mary Nester a $5,000.00 draft under the "med-pay" provision of policy "One" but has not paid any of the uninsured motorist benefits under any of the four State Farm policies in effect at the time of the accident.
15. Mary Nester's injuries exceed $40,000.00 if the Court finds uninsured motorist coverage available under all four policies and said injuries exceed $30,000.00 if the Court finds coverage only under policies "Two", "Three", and "Four".
16. In the event the Court finds uninsured motorist coverage under all four policies or under policies "Two", "Three", and "Four" only, the parties agree to arbitrate the property damage claim concerning the 1974 Mustang, and this action is strictly limited to the personal injury claim of Mary Nester.
Simplified, the question may be pared down to the following: Whether an insured who is injured while riding as passenger in her own car is entitled to recover from her uninsured motorist coverage where her policy expressly forbids her to make a claim based on liability and the driver of the car is otherwise uninsured?
The parties first approach this question by addressing whether Patrick Sullivan, the driver of the car was a permissive user so as to be insured under the policy purchased by Mary Nester's father, James Nester. The determination of this question does not go far in answering the ultimate one. This is because if Sullivan was a permissive user and therefore insured under the policy, as State Farm argues, Mary Nester is still forbidden to make a liability claim against him as a permissive user. If Sullivan was not a permissive user and therefore uninsured, as the Nesters argue, there is also no liability insurance applicable to the accident. Therefore, regardless of whether Sullivan was a permissive user there is still no liability insurance applicable to Mary Nester. If there is any insurance applicable, it must be the uninsured motorist coverage.
Under Sec. 83-11-101 Miss.Code Ann. (Supp.1983) uninsured motorist coverage is required to be offered with all bodily injury liability policies. Because the legislature has directed that our state's motorists be so protected, every automobile liability insurance policy issued after January 1, 1980, has also de jure provided uninsured motorist coverage of at least the statutory minimum, unless the insured expressly rejected that coverage. Any attempt to contractually limit an insurer's duty of coverage is necessarily confined to the boundaries of the statute and may not be effective to narrow the requirements of that statute.
The Code defines an uninsured motor vehicle as:
(c) The term "uninsured motor vehicle" shall mean:
(i) A motor vehicle as to which there is no bodily injury liability insurance; or
(ii) A motor vehicle as to which there is such insurance in existence, but the insurance company writing the same has legally denied coverage thereunder or is unable, because of being insolvent at the time of or becoming insolvent during the twelve (12) months following the accident, to make payment with respect to the legal liability of its insured; or
(iii) An insured motor vehicle, when the liability insurer of such vehicle has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist coverage; or
(iv) A motor vehicle as to which there is no bond or deposit of cash or securities in lieu of such bodily injury and property damage liability insurance or other compliance with the state financial responsibility law, or where there is such bond or deposit of cash or securities, but such bond or deposit is less than the legal liability of the injuring party; or
(v) A motor vehicle of which the owner or operator is unknown; provided that in order for the insured to recover under the endorsement where the owner or operator of any motor vehicle which causes bodily injury to the insured is unknown, actual physical contact must have occurred between the motor vehicle owned or operated by such unknown person and the person or property of the insured. (Emphasis supplied).
Sec. 83-11-103(c) Miss.Code Ann. (Supp.1983)
Numerous decisions of this court have held that the uninsured motorist statute is to be liberally construed so as to provide coverage, and exceptions from coverage are to be strictly construed. Stevens v. United States Fidelity and Guaranty Co., 345 So.2d 1401 (Miss.1977); Parker v. Cottonbelt Insurance Co., Inc. 314 So.2d 342 (Miss.1975); Lowery v. State Farm Mutual Automobile Insurance Co., 285 So.2d 767 (Miss.1973); Hodges v. Canal Insurance Co., 223 So.2d 630 (Miss.1969).
In Hodges, supra, this Court held that Hodges' uninsured motorist coverage was applicable where the insurance company of the person with whom she collided refused to pay on the grounds of that person's failure to cooperate. Speaking for the Court, Justice Gillespie wrote that in determining whether uninsured motorist coverage is available, one must view the matter from the perspective of the...
To continue reading
Request your trial
-
Aetna Cas. and Sur. Co. v. Williams
...(Miss.1986); Matthews v. State Farm Mutual Automobile Insurance Co., 471 So.2d 1223, 1225 (Miss.1985); State Farm Mutual Automobile Insurance Co. v. Nester, 459 So.2d 787, 790 (Miss.1984); Stevens v. United States Fidelity & Guaranty Co., 345 So.2d 1041 (Miss.1977); Parker v. Cottonbelt Ins......
-
Koestler for Ben. of Koestler, In re
...insurer's duty of coverage ... may not be effective to narrow the requirements of ... [the] statute, State Farm Mutual Automobile Insurance Co. v. Nester, 459 So.2d 787, 789 (Miss.1984). But the act "allows insurers to contract [as they please] with regard to excess coverage." Wickline v. U......
-
Boardman v. United Services Auto. Ass'n
...from coverage of the uninsured motorist provisions of an automobile insurance policy. See, e.g., State Farm Mutual Auto Insurance Co. v. Nester, 459 So.2d 787, 789-93 (Miss.1984); Lowery v. State What we have here, however, is a non-Mississippi insurer making a contract in Nebraska with a N......
-
Lawler v. Government Employees Ins. Co.
...Guaranty Company, 530 So.2d 708 (Miss.1988); Brown v. Maryland Casualty Company, 521 So.2d 854 (Miss.1987); State Farm Mut. Auto. Ins. Co. v. Nester, 459 So.2d 787 (Miss.1984); Gov. Emp. Ins. Co. v. Brown, 446 So.2d 1002 The policy and purpose behind this statute is to provide the same prot......