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

• Decision Date: 16 April 1985
• Docket Number: No. 83-7432,83-7432
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation, Plaintiff- Appellant, v. Jerry W. JACKSON, as the Administrator of the Estate of Kenneth L. Ivey and Shellie K. Ivey, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1220

757 F.2d 1220

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation, Plaintiff- Appellant, v. Jerry W. JACKSON, as the Administrator of the Estate of Kenneth L. Ivey and Shellie K. Ivey, Defendants-Appellees.

No. 83-7432.

United States Court of Appeals Eleventh Circuit.

April 16, 1985.

Harvey Jackson, Jr., Jasper, Ala., for plaintiff-appellant.

Jerry W. Jackson, Haleyville, Ala., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before TJOFLAT and HATCHETT, Circuit Judges, and GARZA ^*, Circuit Judge.

PER CURIAM:

It appearing after oral argument in this case that the sole issue turned upon an unresolved question of Alabama state law, the court certified the following question to the Supreme Court of Alabama pursuant to the certification provision of the Alabama Constitution, Ala. Const. art. VI, amend. Whether Kenneth Ivey, at the time of his death, was 'a person insured' under the liability provisions of the policies in question in accordance with the holding in State Farm Automobile Insurance Company v. Reaves, 292 Ala. 218, 292 So.2d 95 (1974).

328, Sec. 6.02(b)(3), and Rule 18 of the Alabama Rules of Appellate Procedure:

The Supreme Court of Alabama, 462 So.2d 346, responded to the certification by stating that the district court had correctly interpreted applicable Alabama state law. Accordingly, it adopted as its own the district court's opinion in pertinent part. We publish in its entirety the Supreme Court of Alabama's adoption of the district court's opinion as the opinion of this court:

"1. This case arises out of a single motor vehicle accident in which Kenneth L. Ivey, deceased, was a passenger, which accident occurred on April 17, 1982, on what is known as the Strip Pit Road in Winston County, Alabama. This motor vehicle was owned and operated by Leslie Swart, Jr., who also died as a result of the accident. Leslie Swart, Jr. was a cousin of the mother of the deceased, Kenneth L. Ivey, and Leslie Swart, Jr. was a resident relative living with the deceased, Kenneth L. Ivey, and his parents, Mr. and Mrs. Shellie K. Ivey, at Route # 4, Box 160, Haleyville, Winston County, Alabama, at the time of this accident. Prior to April 17, 1982, the date of the accident, the plaintiff had issued seven (7) automobile liability insurance policies wherein defendant, Shellie K. Ivey, was the named insured in three (3) of these policies and Kenneth L. Ivey, deceased, was the named insured in four (4) of them. None of these policies had terminated as of the date of the accident and at that time the said Leslie Swart, Jr. was an uninsured motorist. Certified copies of the policies as listed in the complaint are authentic and true and correct.

"2. Under the three (3) policies issued to Shellie K. Ivey, the father of Kenneth L. Ivey, deceased, and the four (4) policies issued to Kenneth L. Ivey, deceased, the following definitions are contained:

On page 2

NON-OWNED CAR--means a car not:

1. owned by,

2. registered in the name of,

3. furnished or available for the regular or frequent use of: you, your spouse, or any relatives.

RELATIVE--means a person related to you or your spouse by blood, marriage or adoption who lives with you.--

YOUR CAR--means the car or the vehicle described on the declarations page.

"3. On page 5 of these policies:

COVERAGE FOR THE USE OF OTHER CARS

The liability coverage extends to the use, by an insured, of a newly acquired car, a temporary substitute car or a non-owned car.

WHO IS AN INSURED

When we refer to your car, a newly acquired car or a temporary substitute car, insured means:

1. you;

2. your spouse;

3. The relatives of the first person named in the declarations;--

When we refer to a non-owned car, insured means:

1. The first person named in the declarations;

2. his or her spouse;

3. their relatives;

"4. UNDER SECTION I--LIABILITY--COVERAGE A of all of the policies commencing on Page 5 thereof there is the statement: THERE IS NO COVERAGE: and continuing on page 6 thereof:

2. FOR BODILY INJURY TO:

C. ANY INSURED OR ANY MEMBER OF AN INSURED'S FAMILY RESIDING IN THE INSURED'S HOUSEHOLD.

"5. UNDER SECTION III--UNINSURED MOTOR VEHICLE--COVERAGE U on page 7 thereof the following statement is found An uninsured motor vehicle does not include a land motor vehicle:

2. furnished for the regular use of you, your spouse or any relative;

"6. The vehicle involved was not an owned vehicle as to Shellie K. Ivey and Kenneth L. Ivey, deceased, but was owned by and furnished by Leslie Swart, Jr. for his regular use, Swart being a relative of both Shellie K. Ivey and Kenneth L. Ivey, deceased. Kenneth L. Ivey, deceased, was a resident relative living with his father and mother, Mr. and Mrs. Shellie K. Ivey, at Route # 4, Box 160, Haleyville, Winston County, Alabama, at the time of this accident.

"7. It is agreed that all seven (7) policies are introduced into evidence in this case.

CONCLUSIONS OF LAW

"... The starting point is Sec. 32-7-23, Code of Alabama 1975, which provides:

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 32-7-6, 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. (Acts 1965, No. 866, p. 1614).

"The earliest Alabama case cited by the parties, which appears to have a direct pertinency to the facts of this case, is State Farm Automobile Insurance Co. v. Reaves, 292 Ala. 218, 292 So.2d 95 (1974). In Reaves, the plaintiff, James Reaves, his mother Catherine Reaves, and his sister Annie Ruth Franklin, were all residents of the same household. State Farm had issued two automobile insurance policies to Annie Ruth Franklin only, but James was an 'insured' under the omnibus clauses of the two policies. James, a minor, was injured when his mother's uninsured motorcycle was struck by an uninsured motorist. James and his mother sought to recover from State Farm under the uninsured motorist provisions of his sister's policies. The sister's policies contained the following exclusions to the uninsured motorist provisions:

THIS INSURANCE 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 ANY RESIDENT OF THE SAME HOUSEHOLD, IF SUCH VEHICLE IS NOT AN OWNED VEHICLE.

The policies defined 'owned motor vehicle' to mean 'the motor vehicle or trailer described in the declarations....' ¹

"While rejecting an argument to find in the Alabama statute the same intent which the Supreme Court of Florida had found in the Florida statute (Mullis v. State Farm Mutual Automobile Insurance Co., 252 So.2d 229 (Fla.1971)), Justice Bloodworth, in a unanimous decision, affirmed the trial court's conclusion that the exclusion clause recited above was void.

"Justice Bloodworth emphasized the language in Sec. 32-7-23 which states, '[u]nless coverage is provided therein or supplemental thereto ... for the protection of persons insured thereunder....'; concluding that '[b]y the literal words of the statute, it mandates uninsured motorist coverage for "persons insured thereunder" in the policy.' Further that, 'The use of the broader term "persons insured thereunder" and the narrower term "named insured" in the same sentence appears to us to indicate clearly that the legislature intended to draw a distinction between the two types of insureds, and did indeed intend to require uninsured motorist coverage for the broader class "persons insured thereunder." ' 292 Ala. at 222, 292 So.2d 95. Further that:

Moreover, the use of the plural 'persons insured thereunder' in one clause and the singular 'named insured' in the other would indicate that the legislature envisioned that, in the type of policy in question here having the usual 'omnibus clause,' uninsured motorist coverage was intended to be extended to all 'persons insured thereunder,' without regard to the mentioned exclusion.

While we do not read the statute as requiring every automobile liability insurance policy to include an 'omnibus clause,' nevertheless once an automobile liability policy is issued extending coverage to a certain class of insureds under such a clause, uninsured motorist coverage must be offered to cover the same class of insureds. Appellant admits that appellees here come within the policy definition of the word 'Insured' being relatives of the named insured and residents of the same household.

It is, therefore, that we conclude that appellees were among the 'persons insured thereunder' in the subject policy, within the provisions of Sec. 74 (62a) [Sec. 32-7-23], and as such were required to be given uninsured motorist coverage, absent a rejection of such coverage by the 'named insured.'

292 Ala. at 223, 292 So.2d 95.

"The Supreme Court of Alabama then concluded that the above recited exclusion was void as being repugnant to then Title 36, Sec. 74 (62a), Code of Alabama 1940 (now Sec. 32-7-23)....