State Farm Mut. Auto. Ins. Co. v. Robertson

• Decision Date: 07 May 1973
• Docket Number: No. 1--173A1,1--173A1
• Citation: 156 Ind.App. 149,295 N.E.2d 626
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant, v. Donald W. ROBERTSON, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 626

295 N.E.2d 626

156 Ind.App. 149

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant, v. Donald W. ROBERTSON, Plaintiff-Appellee.

No. 1--173A1.

Court of Appeals of Indiana, First District.

May 7, 1973.

John T. Sharpnack, Sharpnack, Bigley & David, Columbus, for defendant-appellant.

Leon D. Cline, Goltra, Cline, King & Beck, Columbus, for plaintiff-appellee.

ROBERTSON, Presiding Judge.

Defendant-appellant (State Farm hereafter) is appealing a summary judgment in the amount of $10,000 entered in favor of plaintiff-appellee (Robertson) by the Bartholomew Circuit Court.

The facts surrounding this action, which are not in dispute, can be summarized as follows: On October 29, 1965, State Farm issued to Robertson an automobile insurance policy on a form which had been approved in August, 1965, by the Indiana Insurance Commissioner. Under a provision of the policy entitled 'Uninsured Motorist Protection' State Farm promised to pay to Robertson or all persons insured under the policy all sums which he would be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury or death up to $10,000 for any one person insured thereunder. The policy further provided under an Exclusion (b) that Insuring Agreement III (the uninsured motorist coverage) does not apply 'to bodily injury to an insured while occupying or through being struck by a land motor vehicle owned by the named insured or any resident of the same household, if such vehicle is not an 'insured automobile".

On August 24, 1966, while the State Farm insurance policy was in effect, Robertson's eighteen year old son, a member of the Robertson household, was fatally injured as the result of being struck by an uninsured automobile within the meaning of the terms of the policy. At the time of the accident Robertson's son was operating a motorcycle owned by Robertson but not named in the policy as an insured automobile. In a wrongful death action against the driver of the uninsured automobile, Robertson obtained a judgment of $10,387 which at the time the present action was commenced remained unsatisfied. Thereafter Robertson made a claim under the uninsured motorist provision of his policy with State Farm which was refused by the company

Upon granting Robertson's motion for summary judgment, the court found, inter alia, that IC 27--7--5--1, Ind.Ann.Stat. § 39--4310 (Burns 1965 Repl.) (the uninsured motorists statute) mandates 'coverage for the 'PROTECTION OF PERSONS INSURED', . . . IRREspective of the insured's proprietory and insurance interest in the vehicle he happens to be driving' and that Exclusion (b) in the State Farm policy 'violates public policy and is invalid'. State Farm alleged in its motion to correct errors, and argues to the same effect on appeal, that the court's findings and judgment were contrary to law and that it was entitled to summary judgment as a matter of law.

Burns 39--4310 under which the court found Exclusion (b) invalid reads in part:

'No automobile liability or motor vehicle liability policy of insurance 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 his state unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in Acts 1947, Chapter 159, sec. 14 ( § 47--1057), as amended heretofore and hereafter, under policy 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; . . ..'

The exclusion on which State Farm refused Robertson's claim is as follows:

'Insuring Agreement III (uninsured motorists coverage) does not apply:

(b) to bodily injury to an insured while occupying or through being struck by a land motor vehicle owned by the named insured or resident of the same household, if such vehicle is not an 'insured vehicle."

Before considering the validity of the above exclusion certain principles applicable to uninsured motorists coverage, as set forth in Indiana Insurance Company v. Noble (1970), Ind.App., 265 N.E.2d 419, should be reviewed:

'The provisions of the above statute must be considered a part of every automobile liability policy the same as if written specifically therein . . .. Even where the policy fails to provide such uninsured motorist coverage, the insured is entitled to its benefits unless expressly waived in the manner provided by law . . ..' 265 N.E.2d 425.

'Uninsured motorist legislation is remedial in nature and should be liberally construed. (citing authorities)

'An attempt by the insurer to...