Unigard Sec. Ins. Co. v. Schaefer
Decision Date | 05 July 1978 |
Docket Number | No. B-7312,B-7312 |
Citation | 572 S.W.2d 303 |
Parties | UNIGARD SECURITY INSURANCE COMPANY, Petitioner, v. Charles SCHAEFER et al., Respondents. |
Court | Texas Supreme Court |
Gardere, Porter & Dehay, Gordon H. Rowe, Jr., Dallas, for petitioner.
Kolenovsky & Hulme, Bobby W. Kolenovsky, Moseley & Jones, Craig T. Enoch, Hayden H. Cooper, Dallas, for respondents.
This is an action by Charles Schaefer, LaVerne Kennedy, individually and as next friend of Diana Kennedy, and Geraldine Craddock, individually and as heir at law of Melinda Craddock, to recover benefits under the Personal Injury Protection endorsement of an automobile liability insurance policy issued by Unigard Security Insurance Company to Abraham Wyloge. The case was submitted to the trial court on a stipulated statement of facts. The trial court rendered judgment that the plaintiffs, Schaefer, et al., take nothing by their suit because of an "Exclusion of Named Driver" endorsement. The Court of Civil Appeals reversed and rendered judgment for the plaintiffs. 559 S.W.2d 103. We affirm the judgment of the Court of Civil Appeals.
David Wyloge, the son of Abraham Wyloge, was the driver of a 1970 Javelin automobile which was involved in a violent one-car crash. David Wyloge was killed in the wreck, as was Melinda Craddock, a passenger in the vehicle. Two other passengers, Charles Schaefer and Diana Kennedy, were seriously injured.
Prior to the time of the accident, Abraham Wyloge obtained liability insurance coverage on the Javelin from Unigard. This policy included Endorsement 243, Personal Injury Protection, which was mandated by the Legislature in Article 5.06-3, Tex.Ins.Code Ann., 1 reading in part as follows:
The only exclusion of benefits provided by the Act is in the event the insured causes injury to himself intentionally or is injured while in the commission of a felony or attempting to elude arrest. Article 5.06-3(e).
As authorized by the Act, the State Board of Insurance promulgated a form for such coverage, which is entitled Endorsement 243, the "conditions" section of which reads:
(Emphasis added.)
Mr. Wyloge did not reject the statutory Personal Injury Protection coverage. On the contrary the policy was written with the coverage included as set forth in Endorsement 243, and Unigard collected a premium of twenty-five dollars for such coverage.
While this statutory coverage was in full effect, but at a subsequent date, Mr. Wyloge signed a Form 119, "Exclusion of Named Driver" endorsement, which is reproduced in the margin. 2 It excludes claims arising from any accidents occurring while any automobile is being operated by David Wyloge. Unigard asserts that the exclusion in Endorsement 119 was tantamount to a partial rejection (while David was driving) of the Personal Injury Protection required by Article 5.06-3. For this reason it denied plaintiffs' claims for benefits under the statutory coverage.
The plaintiffs counter with arguments that Endorsement 119 does not refer to or comply as a written rejection of the Personal Injury Protection coverage as required by Article 5.06-3; that it is excluded from Article 5.06-3 and Endorsement 243 coverage by the terms of the statute and the endorsement; and that Unigard's interpretation would be in derogation of the statute and contrary to public policy. We are in substantial agreement with the arguments advanced by plaintiffs.
It is correct that the wording of Endorsement 119 "Exclusion of Named Driver" does not mention or refer to the Personal Injury Protection coverage mandated by Article 5.06-3. In fact, the endorsement was promulgated as last revised in 1941, nearly thirty-two years prior to the time when Article 5.06-3 became effective in 1973. As attached to the Wyloge policy, it retained the same wording and revision date of October 20, 1941. Obviously, it was not promulgated as a form for partial or total rejection of the new type of statutorily mandated insurance coverage which must be incorporated in an automobile liability insurance policy unless the insured "rejects the coverage in writing."
Nevertheless, Unigard argues that 119 has the legal effect of a partial rejection of all insurance coverage contained within the policy. This disregards the fact that the basic policy's insuring agreements, exclusions, conditions, and other terms do not apply to the Personal Injury Protection required by Article 5.06-3. This is clear from the terms of the statute and the Policy Provisions section of Endorsement 243, quoted above, which specifically provide the "None of the insuring agreements, exclusions, or conditions of the policy shall apply to the insurance afforded by this endorsement . . ." except premium, notice and other specified conditions which do not relate to exclusions or...
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