U.S. Fidelity & Guaranty Co. v. Perry

• Citation: 361 So.2d 594
• Parties: UNITED STATES FIDELITY AND GUARANTY COMPANY, a corporation v. Minnie Lee PERRY, as Administratrix of the Estate of Kenneth E. Perry, Deceased, and as widow of Kenneth E. Perry, Deceased. UNITED STATES FIDELITY AND GUARANTY COMPANY, a corporation v. Lynn GULLEY, as Administratrix of the Estate of Roy David Gulley, Deceased, and as widow of Roy David Gulley, Deceased. Civ. 1560, Civ. 1560-A.
• Decision Date: 16 August 1978
• Court: Alabama Court of Civil Appeals

Page 594

361 So.2d 594

UNITED STATES FIDELITY AND GUARANTY COMPANY, a corporation v. Minnie Lee PERRY, as Administratrix of the Estate of Kenneth E. Perry, Deceased, and as widow of Kenneth E. Perry, Deceased.

UNITED STATES FIDELITY AND GUARANTY COMPANY, a corporation v. Lynn GULLEY, as Administratrix of the Estate of Roy David Gulley, Deceased, and as widow of Roy David Gulley, Deceased.

Civ. 1560, Civ. 1560-A.

Court of Civil Appeals of Alabama.

Aug. 16, 1978.

Ford, Caldwell, Ford & Payne and Robert L. Hodges, Huntsville, for appellant.

Martinson & Beason and Douglas C. Martinson, Huntsville, for appellees.

WRIGHT, Presiding Judge.

This is an uninsured motorist insurance case.

The plaintiffs are the widows and administratrices of the estates of Kenneth Perry and Roy David Gulley. Their decedents were killed while passengers in an automobile owned and driven by Jerry Ivey. The Ivey automobile entered the highway at an intersection and was struck by the automobile of Annie Miller. Neither Ivey nor Miller owned a policy of liability insurance covering their automobiles. Decedents and Ivey were employees of Douglas and Vandiver, a farming partnership and were acting within the line and scope of their employment at the time of the fatal accident.

Defendant USF&G is the insurer of Douglas and Vandiver. At the time of the accident there was in force a policy of general liability insurance, with uninsured motorist coverage issued by defendant upon several motor vehicles owned by Douglas and Vandiver. At the time of the accident, Ivey and decedents had been informed that cattle belonging to their employer were loose along the highway several miles away from the main farm where they were working. There being no motor vehicle belonging to their employer then unused and available, they proceeded in the automobile of Ivey to the place where the cattle were loose and secured them. It was while they were returning to the main farm that plaintiffs' decedents were killed.

The evidence was undisputed that Ivey was driving. He came to the intersection, stopped at a stop sign and waited while an oncoming vehicle passed in front of them. He then drove slowly into the intersection without looking and was immediately struck in the right side by Annie Miller. Plaintiffs' decedents were killed. It was undisputed that Ivey had the approval of his employer to use his automobile in the performance of his duties on occasion when the employer's vehicles were not available. On such occasion, the employer furnished gasoline from their farm supply. Ivey placed gasoline in his automobile prior to setting out to round up the cattle on the morning of the accident. The automobile of Ivey was not designated as an insured vehicle in the defendant's policy nor was Ivey a named insured.

Plaintiffs claimed against defendant under the uninsured motorist provisions of the employer's policy. The claim was denied for lack of coverage. Plaintiffs brought suits which were consolidated. After trial there were jury verdicts and judgments against defendant and in favor of plaintiffs in each case for $10,000 with interest. In response to special interrogatories the jury found: (1) Ivey guilty of willful conduct causing the deceaseds' deaths; (2) Annie Miller guilty of negligence causing the deaths; and (3) that the deceased were passengers in an insured vehicle within the terms of defendant's policy of insurance. Defendant appealed.

The primary issue presented by the appeal is whether decedents were "persons insured" under the provisions of defendant's policy so that they are entitled to claim the benefits of uninsured motorist coverage. This issue was preserved by motions of defendant for summary judgment, directed verdict, new trial, and judgment notwithstanding the verdict. It is our opinion that defendant was due a directed verdict. Considering the unconflicting evidence most favorable to plaintiffs, we find that reasonable minds could only conclude that the deceased were not insured under the plain terms of the policy. Wayland Distr. Co. v. Gay, 287 Ala. 446, 252 So.2d 414 (1971); Boggs v. Turner, 277 Ala. 157, 168 So.2d 1 (1964).

Definitions of "persons insured" are found in the uninsured motorist provisions and the liability provisions of the policy.

The uninsured motorist coverage provides that "persons insured" are "(a) the named insured and any designated insured and, while residents of the same household, the spouse of relatives of either; (b) any other person while occupying an insured highway vehicle; . . ." Plaintiffs' decedents were none of the persons insured in Section (a). Were they insureds under Section (b) because they were occupying an insured highway vehicle?

The uninsured motorist provisions of the policy describe an "insured highway vehicle" as any automobile owned by the named insured. The automobile occupied by plaintiffs' decedents at the time of their deaths was not owned by the named insured. Plaintiffs contend that our appellate courts have said that the provisions or exclusions of the uninsured motorist coverage may not be decisive, but that the liability coverage may be looked to in order to determine the limits of uninsured motorist coverage. Plaintiffs are correct. In the case of State Farm Automobile Ins. Co. v. Reaves, 292 Ala. 218, 292 So.2d 95 (1974), our supreme court said Inter alia that the wording of the statute ¹ would indicate the legislature envisioned that in a general liability policy having the "usual omnibus clause," uninsured motorist coverage was intended to be extended to All persons insured thereunder, without regard to exclusions in the uninsured motorist coverage.

Therefore, we...