Wheeler v. Employer's Mut. Cas. Co.

• Decision Date: 20 January 1973
• Docket Number: No. 46523,46523
• Citation: Wheeler v. Employer's Mut. Cas. Co., 505 P.2d 768, 211 Kan. 100 (Kan. 1973)
• Parties: Gertrude WHEELER, Individually and as Administrator of the Estate of S. J. Wheeler, Appellant, v. EMPLOYER'S MUTUAL CASUALTY COMPANY, d/b/a Emcasco Insurance Company, Appellee.
• Court: Kansas Supreme Court

Page 768

505 P.2d 768

211 Kan. 100

Gertrude WHEELER, Individually and as Administrator of the Estate of S. J. Wheeler, Appellant, v. EMPLOYER'S MUTUAL CASUALTY COMPANY, d/b/a Emcasco Insurance Company, Appellee.

No. 46523.

Supreme Court of Kansas.

Jan. 20, 1973.

Syllabus by the Court

1. Under provisions of an automobile liability insurance policy extending medical payments and funeral expenses coverage to the named insured who sustains bodily injury through being struck by an automobile, an insured injured when the truck he was driving was struck from the side by another automobile was 'struck by an automobile' within the meaning of the policy provision even though there was no direct physical contact between his body and the offending vehicle.

2. Under the medical payments and funeral expenses clause of an automobile liability policy providing coverage to the named insured who sustains bodily injury through being struck by an automobile, the coverage applies not only where the insured is struck while a pedestrian but also while occupying an automobile.

3. Rules of construction relating to insurance contracts are stated and applied.

4. Under the facts and circumstances in this case the defendant insurance company did not have just cause or excuse to refuse payment under the policy and attorney fees are allowed under K.S.A. 1972 Supp. 40-256.

Gerald W. Scott, Wichita, argued the cause, and was on the brief for appellant.

Daniel C. Bachmann, Wichita, argued the cause, and was on the brief for appellee.

PRAGER, Justice:

This is an action to recover under the 'Medical Payments' section of an automobile insurance policy. The trial court upheld the position of the insurance company and denied the claim. The only issue involves the interpretation of the provisions of the insurance contract. The case is before this court on an agreed statement of facts.

On October 24, 1969, S. J. Wheeler owned two automobiles-a 1968 Ford pickup truck and a 1967 Ford custom. The 1968 Ford pickup truck was insured under a policy issued by the State Farm Mutual Insurance Company. The 1967 Ford custom was insured under the policy which is involved in this case and which was issued by Emcasco, the defendant-appellee. Both insurance policies contained medical payment provisions. On October 24, 1969, Mr. Wheeler, while driving the 1968 Ford pickup, was involved in a two-car collision. The Wheeler vehicle was struck broadside by another automobile. Upon impact Mr. Wheeler's body was thrown out of the truck and onto the payment. Mr. Wheeler, the named insured, sustained serious bodily injuries and as a consequence thereof died on November 9, 1969. Medical and funeral expenses were incurred as a result of Mr. Wheeler's fatal accident in the amount of $5,407.20. The medical payments coverage provided under the State Farm Mutual policy was not sufficient to cover all of the expenses for medical care and for Mr. Wheeler's funeral. Mrs. Wheeler as administratrix of her husband's estaate made claim against Emcasco in the amount of $1,544.84. The parties have stipulated that this amount would be the pro-rata obligation of Emcasco in the event its policy provided medical payment coverage under the circumstances of this case. The provisions of the Emcasco policy which are material to the issues raised in this case are in substance as follows:

DEFINITIONS:

'Owned automobile' means a private passenger . . . automobile described in the policy for which a specific premium charge indicates that coverage is afforded . . .

'Non-owned automobile' means an automobile . . . not owned by . . . the named insured . . .

PART II-Expenses for Medical Services

COVERAGE C.-Medical Payments

To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical . . . etc . . .

DIVISION 1.

To or for the named insured . . . who sustains bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury', cause by accident,

(a) while occupying the owned automobile,

(b) while occupying a non-owned automobile . . . or

(c) Through being struck by an automobile . . .

The 'Exclusions' section of the policy has no provisions relevant to the issues raised here.

Mrs. Wheeler filed her proof of claim under the Emcasco policy. Emcasco denied any coverage or responsibility to pay under the medical payment section of the policy on the ground that the named insured, S. J. Wheeler, was not occupying an owned automobile for which a specific premium charge was paid.

On August 25, 1970, Mrs. Wheeler brought this action under the policy. After the completion of discovery each of the parties filed a motion for summary judgment. The trial court coverruled plaintiff's motion for summary judgment and sustained the motion for summary judgment filed by the defendant Emcasco. The trial court based its denial of plaintiff's claim on the theory that the provision in the Emcasco policy, Part II, Coverage C, Division 1(c) which reads:

'Through being struck by an automobile. . . .' only applies in situations where the insured was a pedestrian at the time of injury. Mrs. Wheeler has brought an appeal to this court from the denial of her claim under the Emcasco policy.

Both of the parties concede that there is no coverage under the medical payment provisions of the Emcasco policy unless it is provided under Coverage C. Division 1(c). The appellee Emcasco contends here as it did in the trial court that this section applies only where the named insured at the time of injury was a pedestrian or in other words not occupying an automobile. It maintains that the insurance policy must be construed as a whole, giving effect to all its provisions. The thrust of the argument is that a construction of the policy which interprets the language of subparagraph (c), 'through being struck by an automobile. . . .', as extending coverage to an insured while driving a motor vehicle which is neither 'owned' or 'non-owned' within the policy definitions does violence to the intent of the parties and virtually renders meaningless subparagraphs (a) and (b) of Division 1, Coverage C. Stated otherwise, defendant contends that if coverage is extended to the insured here, it would in effect give coverage not only while the insured was occupying an owned and a non-owned vehicle as those terms are defined in the policy but also separate and distinct coverage while the insured was occupying a vehicle not within either category.

Mrs. Wheeler argues that the ruling of the trial court is contrary to the plain language of the policy and points out that other jurisdictions faced with similar policy language for interpretation on similar facts have almost universally allowed recovery, holding that there is no need for direct physical contact between the striking automobile and the injured insured.

The issue presented here is one of first impression in Kansas. There are, however, a number of cases from other jurisdictions which squarely decide the issue. The various cases may be found in a comprehensive annotation on this subject in 33 A.L.R.3d 962 and in the supplement thereto. An analysis of the cases shows clearly that the only jursidiction today which supports the position of Emcasco in the State of Washington. In Johnston v. Maryland Casualty Co., 22 Wash.2d 305, 155 P.2d 806, (1945), the Supreme Court of Washington held that a truck driver who was still in the truck after a collision and whose body never had a direct contact with the automobile which struck the vehicle in which he was driving was not 'struck by an automobile' within the meaning of an automobile insurance policy. A Florida decision temporarily recognized the rule of the Johnston case. The case was The Metropolitan Casualty Ins. Co. v. Curry, 156 Fla. 502, 24 So.2d 316, which was decided by the Supreme Court of Florida on October 26, 1945. On petition for rehearing the original opinion was set aside and held for naught. Since 1945 no jurisdictions have adopted the rule of Johnston.

On the contrary every other jurisdiction holds that the...