Sturdy v. Allied Mut. Ins. Co.

• Decision Date: 17 July 1969
• Docket Number: No. 45383,45383
• Citation: 203 Kan. 783,457 P.2d 34
• Parties: Maurice F. STURDY, Appellant, v. ALLIED MUTUAL INSURANCE COMPANY, a corporation, Appellee.
• Court: Kansas Supreme Court

Page 34

457 P.2d 34

203 Kan. 783

Maurice F. STURDY, Appellant, v. ALLIED MUTUAL INSURANCE COMPANY, a corporation, Appellee.

No. 45383.

Supreme Court of Kansas.

July 17, 1969.

Syllabus by the Court

1. As used in an insurance policy the term 'other insurance' means insurance in addition to that effected by the policy under consideration.

2. Where two automobiles are insured for uninsured motorist coverage in the same policy and named insured while riding a motorcycle suffers bodily injury from an uninsured motorist, the coverages on the two automobiles do not constitute, as to each other, other similar insurance available to the insured within the meaning of an 'other insurance' clause providing for limitation of liability and pro rata sharing.

3. Where an insurer prepares its own contracts, it has a duty to make the meaning clear, and if the terms of a policy of insurance are ambiguous, obscure or susceptible of more than one construction, the construction most favorable to the insured must prevail.

4. In a declaratory judgment action brought by an insured to determine the amount of coverage in an uninsured motorist policy on two automobiles, the policy is construed and it is held the trial court erred in determining the amount of coverage applicable under the circumstances stated in the opinion, and further held, the insured is not entitled to payment of his attorney fees under K.S.A.1968 Supp. 40-256.

Gerald L. Michaud, Wichita, argued the cause, and Russell Cranmer, M. William Syrios, Kenneth L. Ingham, Bardley Post, and Jim Lawing, Wichita, were with him on the brief, for appellant.

Robert C. Foulston, Wichita, argued the cause and was on the brief, for appellee.

HARMAN, Commissioner.

This is an action by an insured against his insurer to declare the extent of uninsured motorist coverage in an automobile insurance policy. Trial to the court upon stipulated facts resulted in judgment for the defendant insurer from which plaintiff insured has appealed.

The issue is whether the policy should be interpreted to provide $10,000 or $20,000 coverage for damage inflicted by an uninsured motorist.

Plaintiff, a Wichita police officer, while riding a motorcycle on duty, collided with another automobile. Further background may best be understood by quoting the stipulation of facts upon which the action was submitted to the trial court, as follows:

'1. On October 4, 1966, the plaintiff had in effect a policy of insurance, number AF 387422. A copy of said policy, and endorsements, as attached to the pleadings filed herein, marked Exhibit, 1, and made a part of this stipulation. The petition and answer are made a part of this stipulation.

'2. On the date aforesaid, the plaintiff was involved in an automobile accident while riding a motorcycle. As a result of the accident, plaintiff received permanent injuries.

'3. Plaintiff contended that the motorist with whom he collided, or the motorist whom plaintiff contended caused the accident, were either one or both uninsured motorists. Defendant denied this contention.

'4. Subsequent to the accident arbitration proceedings were commenced pursuant to the terms of the insurance policy, and in accordance with the stipulation and agreement of the parties hereto. The parties submitted to arbitration the following questions:

'(a) Whether or not either of the motorists were uninsured;

'(b) The legal liability of either of the motorists for the injuries to plaintiff; and

'(c) The dollar value of the injuries and damages sustained by the plaintiff.

'5. The parties argeed that a declaratory judgment action would be filed and expressly reserved, for determination by the court, the question as to the amount of coverage provided by the policy. The parties further agreed that if the award of the arbitrator exceeded the sum of $10,000.00, the defendant would pay the sum of $10,000.00, and this court would determine what, if any, additional amounts were due under the policy.

'6. On July 10, 1967, the arbitrator made an award in favor of the plaintiff and against the defendant in the sum of $20,000.00.

'7. Defendant has paid the sum of $10,000.00, and the parties request the court to determine whether or not plaintiff is entitled to the additional sum of $10,000.00.

'8. The parties agree that the court has jurisdiction of the parties and the subject matter of the action, that there are no disputed issues of fact, and that the court may render judgment on this stipulation and the briefs of the parties.'

The petition and answer followed this stipulation, joining issue on policy interpretation as to amount due. Additionally, plaintiff asked for attorney fees under K.S.A.1968 Supp. 40-256.

The concept of uninsured motorist coverage is relatively new, being largely developed since 1956. Excellent discussions on the nature and history of the subject may be found at 11 Am.Jur.Trials, Uninsured Motorist Claims, p. 77; 62 Northwestern University Law Review 497 and 43 Notre Dame Lawyer 5. This is our first case involving uninsured motorist coverage. Various aspects of the subject have reached other appellate jurisdictions with not always harmonious results (see cases in A.L.R.2d Later Case Service for 79 A.L.R.2d 1252). Many of the cases present different factual situations and some turn on the question whether various policy limitations and exclusions amount to restriction of mandatory statutory coverage. We have no such question as the coverage here is a voluntary type, the insurance contract having been executed prior to the effective date of our recently enacted uninsured motorist law (K.S.A.1968 Supp. 40-284 et seq.). For our purposes we may say uninsured motorist coverage is protection afforded an insured by first party insurance against bodily injury inflicted by an uninsured motorist, after the liability of the uninsured motorist for the injury has been established.

We should first note provisions of the policy pertinent under the contentions of each side. On its declaration page the following appears:

'3. The insurance afforded is only with respect to such of the following coverages as are indicated by specific premium charge or charges. On each described owned automobile * * * the insurance afforded is only with respect to such coverages as are indicated for each described automobile by specific preium charge or charges. The limit of the company's liability against each such coverage shall be as stated herein, subject to all the terms of this policy having reference thereto.'

Next in boxed form is this:

NOTE--Some parts of this form are wider than one screen. To view

material that exceeds the width of this screen, use the right arrow

key. To return to the original screen, use the left arrow key.

PREMIUMS LIMITS OF COVERAGES

LIABILITY

Car 1 Car 2

25 thousand

dollars

each

person

$60.00 $100.00 A Bodily )

Injury

Part I

50 thousand )

dollars

each Liabili- )

occurrence ty

5 thousand B Property

dollars Damage )

$33.00 $ 55.00 each Liabili- PartII

occurence ty

$ 8.00 $ 10.00 1000.00 each C Medical Pa-

person yments )

10 thousand J Uninsured

dollars Motorist-

§ )

each (Bodily

person Injury )

Part IV

$ 2.00 $ 2.00 Only)-

)

20 thousand

dollars

each

accident

Car 1 and Car 2 are later described in the policy as a 1963 Dodge and a 1955 Plymouth.

Other pertinent provisions in the insuring agreement are:

'PART IV-PROTECTION AGANINST UNINSURED MOTORISTS

'Coverage J-Uninsured Motorists (Damages for Bodily Injury). 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, sickness or disease, including death resulting therefrom, hereinafter called '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.

* * * * * *

"insured' means:

'(a) the named insured and any relative;

'(b) any other person while occupying an insured automobile; and

'(c) any person, with respect to damages he is entitled to recover because of bodily injury to which this Part applies sustained by an insured under (a) or (b) above.

'The insurance afforded under Part IV applies separately to each insured, but the inclusion herein of more than one insured shall not operate to increase the limits of the company's liability.

* * * * * *

'Exclusions. This policy does not apply under Part IV:

'(a) to bodily injury to an insured while occupying an automibile (other than an insured automobile) owned by the named insured or a relative, or through being struck by such an automobile.

* * * * * *

'Limits of Liability.

'(a) The limit of liability for uninsured motorists coverage stated in the declarations as applicable to 'each persons' is the limit of the company's liability for all damages, including damages for care or loss of services, because of bodily injury sustained by one person as the result of any one accident and, subject to the above provision respecting each person, the limit of liability stated in the declarations as applicable to 'each accident' is the total limit of the company's liability for all damages, including damages for care of loss of services, because of bodily injury sustained by two or more persons as the result of any one accident.

* * * * * *

'Other Insurance. With respect to bodily injury to an insured while occupying an automobile not owned by the named insured, the insurance under Part IV shall apply only as excess insurance over any other similar insurance available to such insured and applicable to such automobile as primary insurance, and...