Stevens v. U.S. Fidelity & Guaranty Co., 49154

• Decision Date: 11 May 1977
• Docket Number: No. 49154,49154
• Citation: 345 So.2d 1041
• Parties: Jimmy STEVENS v. UNITED STATES FIDELITY AND GUARANTY COMPANY.
• Court: Mississippi Supreme Court

Page 1041

345 So.2d 1041

Jimmy STEVENS v. UNITED STATES FIDELITY AND GUARANTY COMPANY.

No. 49154.

Supreme Court of Mississippi.

May 11, 1977.

James B. Floyd, III, Tupelo, for appellant.

Bramlett, Mounce & Soper, Michael G. Soper, Tupelo, for appellee.

Before INZER, P.J., SUGG and LEE, JJ., and Commissioner PIGFORD.

HOWARD R. PIGFORD, Commissioner for the Court: ¹

This action originated in the Circuit Court of Lee County in a suit by the appellant, Jimmy Stevens, against the appellee, United States Fidelity & Guaranty Company, Inc. (U.S.F.&G.) to enforce the provisions of an uninsured motorist protection policy issued by the U.S.F.&G., to the appellant's employer, G & N Motors. The policy covered the business vehicle owned and operated by G & N Motors in its business of automobile salvage and included the wrecker used by Stevens. While acting within the scope of his employment Stevens was injured by an uninsured motorist, and claimed he was convered by his employer's policy. U.S.F.&G. denied liability, and at the conclusion of Stevens' case, the court granted a directed verdict on the theory that appellant was not an insured under the terms of the policy at the time of the accident.

Stevens was injured on December 13, 1973 at a time when he was employed by G & N Motors as the operator of a wrecker of his employer. His duty was to respond to requests for a wrecker by proceeding to the scene of an accident to secure any disabled vehicle with his tow truck and then return to his employer's premises with the damaged vehicle.

Around 6:00 p.m. on the date in question, Stevens answered an emergency call to remove from the highway a truck which had been damaged in a traffic accident. Arriving at the scene, Stevens attached his wrecker to the damaged truck and pulled the truck off the highway. A police vehicle was on the scene parked on the right-hand shoulder of the highway. Stevens stopped his wrecker parallel to the police car, with the police vehicle between the traveled portion of the highway and the wrecker. The vehicle being towed by the wrecker was to the rear of the police car, with its rear edge approximately four feet from the edge of the pavement.

After parking his wrecker, Stevens got out, left the motor running, the door on the driver's side open, and all the regular and emergency lights on. He then began to sweep the debris from the collision off the highway with a broom carried in the wrecker for the purpose. After he finished sweeping the highway, Stevens started back to his wrecker, and had taken about two steps toward the wrecker when an automobile struck him. At this point Stevens had been out of his wrecker approximately one minute, and he was six to eight feet from the wrecker when struck. The towed truck was within touching distance of the appellant when he fell. As a result of this impact, Stevens suffered substantial injury, which required extensive medical treatment.

The driver of the car that hit Stevens was an uninsured motorist and Stevens sought compensation for his injuries from U.S.F.&G., the carrier of the uninsured motorist coverage on his employer's vehicles. These efforts terminated in the directed verdit granted the U.S.F.&G. by the circuit court. The lower court felt that at the time of his injury Stevens was so far removed from his insured vehicle as to prevent him from being included within the definition of insured contained in the terms of the policy, but apparently the court did not consider the definition of insured contained in the Mississippi Uninsured Motorist Coverage Act, Mississippi Code Annotated, Sections 83-11-101, -111 (1972). Section 83-11-103 defines an insured as follows:

. . . the term 'insured' means the named insured and, while resident of the same household, the spouse of any such named insured and relatives of either, while in motor vehicle or otherwise, and any person who uses, with the consent, expressed or implied, of the named insured, the motor vehicle to which the policy applies, and a guest in such motor vehicle to which the policy applies, or the personal representative of any of the above; . . ..

The statute creates two distinct classes of insureds with different coverage accruing to each class. The first class consists of the named insured, and while residents of the same household, his spouse and relatives of either. Their coverage against injury inflicted by uninsured motorists is quite liberal, extending to all circumstances when a member of the first class in injured by an uninsured motorist. This broad protection to members of the first class arises by virtue of the phrase 'while in a motor vehicle or otherwise.'

The second class consists of any person, 'who uses,...