Sullivan v. Doe

• Decision Date: 20 March 1972
• Docket Number: No. 12003,12003
• Citation: 495 P.2d 193,159 Mont. 50
• Parties: John T. SULLIVAN, Plaintiff and Respondent, v. John DOE et al., Defendants and Appellants. William F. MILLER, Plaintiff and Respondent, v. John DOE et al., Defendants and Appellants.
• Court: Montana Supreme Court

Page 193

495 P.2d 193

159 Mont. 50

John T. SULLIVAN, Plaintiff and Respondent, v. John DOE et al., Defendants and Appellants.

William F. MILLER, Plaintiff and Respondent, v. John DOE et al., Defendants and Appellants.

No. 12003.

Supreme Court of Montana.

March 20, 1972.

Rehearing Denied April 3, 1972.

Poore, McKenzie & Roth, Butte, James A. Poore, III (argued), Butte, John L. McKeon, Anaconda, Michael J. McKeon (argued), Anaconda, Knight, Dahood & Mackay, Anaconda, for defendants-appellants.

Burgess, Joyce, Prothero, Whelan & O'Leary, Butte, Thomas F. Joyce (argued), Butte, Robert O'Leary (argued), Butte, for plaintiffs-respondents.

HASWELL, Justice.

This is a consolidated appeal on behalf of an unidentified uninsured motorist and three insurance companies from two personal injury judgments entered against the respective insurers pursuant to 'uninsured motorist' provisions of their policies. The judgments were in the amount of $20,000 each, one in favor of the policeman driver and the other in favor of the policeman passenger, of a city of Butte police car which was involved in a collision with an automobile allegedly driven by an unknown and uninsured driver, without the permission or consent of the owner.

The facts relating to the accident itself are not complex. At about 6:45 a. m. on October 21, 1969, the two plaintiffs, John T. Sullivan and the late William F. Miller, policemen for the city of Butte, were on duty patrolling the warehouse district in Butte. Patrolman Sullivan was driving the police car north on Arizona Street in the northbound lane of travel at a speed of about 15 to 20 miles an hour, with plaintiff Miller beside him in the front seat as a passenger. The street was straight, lighted with overhead lights, there was no obstruction to visibility, nor was there any traffic other than the two vehicles involved in the accident. The headlights of the police car were on and in good working order. The weather was good and the street was clear.

Immediately preceding the accident, the two plaintiffs were engaged in a conversation concerning two suspects they thought would be burglarizing a drug store. As the plaintiffs proceeded north on Arizona Street, plaintiff Miller shouted a warning to plaintiff Sullivan to 'watch out'. Immediately thereafter a head-on collision occurred between the police car and a 1968 Pontiac 4-door automobile. The point of impact was in the northbound lane of travel. Plaintiff Sullivan testified that he did not see the Pontiac automobile at all prior to impact although he had been looking straight ahead and to the side for a least a half block prior to impact.

After the collision plaintiff Sullivan was semiconscious, but managed to call for help on the police car radio. When the police officer who had been called arrived at the scene of the accident, there was no one in the Pontiac, its lights and engine were shut off and it was locked. The driver of the Pontiac has never been located or identified. The Pontiac had apparently been taken from the Leskovar Motors used car lot by an unknown person without the permission or consent of the owner.

Both plaintiffs were severely injured in the accident. At the time of trial, plaintiff Sullivan had incurred medical expenses of $1,026.10 and a salary loss of $4,548. Plaintiff Sullivan was still permanently disabled at the time of trial, the extent and duration of his future disability and future medical expenses being uncertain. As a result of his injuries, he incurred considerable pain and suffering of a continuing nature. Sullivan had received a total of $14,051.05 in medical expenses and compensation benefits under the Montana Workmen's Compensation Act, as a result of his injuries and disability.

Plaintiff Miller likewise was permanently disabled with medical expenses of $1,405.30 and a salary loss of $5,003. The extent of his future disability and medical expenses was undetermined. As a result of his injuries, he suffered extensive pain and suffering which will continue in the future. He received a total of $13,735.30 in medical expenses and compensation benefits under the Montana Workmen's Compensation Act.

At the time of the accident, the city of Butte carried an automobile insurance policy on the involved police car containing an 'uninsured motorist' endorsement with defendant Glacier General Assurance Company and both Sullivan and Miller were 'insureds' within the meaning of the policy. In addition, plaintiff Sullivan carried his own policy with an 'uninsured motorist' endorsement with defendant Hartford Accident & Indemnity Company, while plaintiff Miller carried his own policy with an 'uninsured motorist' endorsement with defendant State Farm Mutual Automobile Insurance Company.

Plaintiff Sullivan filed a personal injury action against John Doe, the unidentified and uninsured driver of the Pontiac automobile ; Glacier General Assurance Company, the insurer of the city of Butte; and Hartford Accident & Indemnity Company, his insurer. In this action Sullivan sought judgment that the unidentified and uninsured driver of the Pontiac was liable for his injuries; that he was entitled to damages of $20,000; and, that either Glacier General or Hartford or both must pay him this sum under the 'uninsured motorist' provisions of their respective policies. The defense was denial of liability on the part of the driver of the Pontiac, together with various policy defenses under the 'uninsured motorist' endorsements on the respective policies.

The Sullivan case came on for trial before the district court sitting without a jury on April 29, 1970. Immediately prior to trial, all parties to the Sullivan case agreed that the district court would try only the issues of liability of the uninsured motorist to Sullivan and the damages Sullivan incurred. The parties also agreed that a separate trial would be held thereafter in which the policy defenses of the insurers under the 'uninsured motorist' coverage would be determined by the district court and judgment entered accordingly.

Following trial, the district court entered findings of fact and conclusions of law in favor of plaintiff Sullivan. In substance, the district court found the uninsured motorist negligent; found that Sullivan was not contributorily negligent; found the uninsured motorist liable to Sullivan; and, fixed Sullivan's damages at $20,000.

Thereafter, the Miller case was submitted to the district court for determination of the issue of liability of the uninsured motorist to Miller and the extent of Miller's damages, on the basis of an agreed statement of fact. The district court entered findings of fact and conclusions of law to the effect that the uninsured motorist was liable to Miller and fixed Miller's damages at $20,000.

Thereafter, the district court ordered the three defendant insurance companies to file their motions and briefs in support of their policy defenses under their 'uninsured motorist' endorsements. The insurers did so and also filed a stipulation and agreed statement of facts entered into by all parties to both actions. The substance of the stipulation and agreed statement of facts sets forth the applicable policy provisions in the policy of each insurer. It provided that Glacier General had 'the primary coverage' on the police car involved in the accident; that each policy provided limits of liability of $10,000 with respect to each person and $20,000 with respect to each accident under the 'uninsured motorist' endorsement; and, that Sullivan had received $14,051.05 in medical and compensation benefits under the Workmen's Compensation Act and Miller had received $13,735.50.

On November 6, 1970, the district court entered judgment in both cases. The substance of the court's findings was that the 'uninsured motorist' provisions in each policy authorizing an offset of other insurance benefits and workmen's compensation benefits against liability was void as against public policy and, accordingly, the insurance commissioner's approval of the policy forms containing such offsets could not validate such void provisions. The judgment held Glacier General and Hartford liable to Sullivan for $10,000 each, and Glacier General and State Farm liable to Miller in the amount of $10,000 each. All defendants appeal from this consolidated judgment against them.

The three basic rules on appeal may be summarized as follows:

1. Should plaintiffs' claims have been barred by reason of contributory negligence as a matter of law?

2. Are the policy provisions offsetting workmen's compensation benefits against 'uninsured motorist' coverage void as against public policy?

3. Do any other exclusions in their respective policies preclude liability on the part of any of the insurers?

In discussing the first issue for review, we find it necessary to consider the Sullivan and Miller cases separately.

Directing our attention first to the Sullivan case, we note that this case was tried to the district court without a jury. Three witnesses testified on behalf of the plaintiff: plaintiff Sullivan; Officer Tromley of the Butte Police Department; and Butte Chief of Police Clark. In addition, the deposition of Ben F. Bentley, the used car salesman at the Leskovar Motors used car lot, was admitted in evidence by stipulation as were records of medical expense and other special damages and five photographs of the accident scene. Defendants called no witnesses but cross-examined the witnesses of the plaintiff.

The key finding of fact by the district court on the issue of liability reads:

'That at about 6:30 A. M. on October 21, 1969, while it was still dark, a City of Butte police patrol car driven by plaintiff, John T. Sullivan and occupied by William F. Miller, another police officer, was proceeding north on South Arizona Street at a speed of 15 to 20 m. p. r. in its own and proper lane of traffic when a 1968 Pontiac automobile crossed over the center lien of...