Whitten v. Empire Fire & Marine Ins. Co.
Decision Date | 05 December 1977 |
Docket Number | No. 13394,13394 |
Citation | 353 So.2d 1071 |
Parties | Gregory T. WHITTEN, Plaintiff-Appellee, v. EMPIRE FIRE AND MARINE INSURANCE COMPANY, Defendant-Appellant. |
Court | Court of Appeal of Louisiana — District of US |
Hayes, Harkey, Smith & Cascio by Thomas M. Hayes, Jr., Monroe, for defendant-appellant.
Whitten & Blake by Leon H. Whitten, Jonesboro, for plaintiff-appellee.
Before BOLIN, MARVIN and JONES, JJ.
The sole issue on appeal is whether the trial court correctly decided that uninsured motorist coverage, after the 1974 amendment to the Uninsured Motorist Statute, is tantamount to excess coverage over the tortfeasor's liability policy limits. We agree with the trial court and affirm its judgment.
The district judge wrote a comprehensive and scholarly opinion. Since the opinion adequately and correctly sets forth the law and the facts, we adopt that portion pertinent to the issue on appeal:
In the event of payment to any person under the coverage required by this Section and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made, including the proceeds recoverable from the assets of the insolvent insurer.
The change in the definition of uninsured motor vehicle is important because all the insured must now establish is that the damages he has suffered are greater than the liability limits of the tortfeasor. In effect, UM coverage is now excess coverage over the tortfeasor's BI liability limits and no longer operates as an absolute limit of recovery. For example, if a plaintiff proved damages of $8,000 and had $5,000 UM coverage and his tortfeasor had BI limits of $5,000, there could be no recovery under either the 1962 statute or the 1972 statute. Assuming the tortfeasor's insurer was solvent, the plaintiff would be denied recovery under Act 187 of 1972 (1962) merely because the tortfeasor was in fact insured. Recovery would also be denied under the 1972 amendment because the tortfeasor's BI liability coverage was not less than the plaintiff's UM coverage. However, recovery of $3,000 will be allowed the insured under the 1974 amendment because this amount is the difference between the insured's damages and the BI limits of the tortfeasor. Added to the $5,000 BI coverage received from the tortfeasor's insurer, the UM recovery will thus fully compensate the plaintiff.
"In order to conform to and implement the 1974 amendment to the UM statute the following endorsement was added to plaintiff's contract of insurance:
It is agreed that:
1. (a) The definition of 'uninsured highway vehicle' shall also include a highway vehicle for which the owner or operator has a bodily injury liability bond or insurance policy applicable at the time of the accident but the limits of such bond or policy are insufficient to pay the full amount the insured is legally entitled to recover for damages because of bodily injury caused by the accident;
(b) in the event the owner or operator has such a bodily injury liability bond or insurance policy applicable to the accident, this insurance shall apply as excess insurance over such liability bond or insurance policy, up to the amount the insured is legally entitled to recover for damages because of bodily injury caused by the accident subject to the limits specified for this insurance.
2. (a) Any amount payable under the terms of this insurance because of bodily injury sustained in an accident by a person who is an insured under this insurance shall not be reduced by any sums paid on account of such bodily injury by or on behalf of
(i) the owner or operator of the uninsured highway vehicle and
(ii) any other person or organization jointly or severally liable together with such owner or operator for such bodily injury including all sums paid under liability coverage;
(b) that part of the 'Limits of Liability' provision pertaining to such a reduction is amended accordingly.
3. The company shall not be obligated to make any payment because of bodily injury to which this insurance applies and which arises out of the ownership, maintenance or use of an uninsured highway vehicle until after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements.
"Examination of Louisiana...
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...Co., 407 So.2d 401 (La.1981); Niemann v. Travelers Insurance Company, 368 So.2d 1003 (La.1979); Whitten v. Empire Fire and Marine Insurance Company, 353 So.2d 1071 (La.App. 2d Cir.1977). The central purpose of the uninsured motorist statute is the protection of the injured person. The unins......
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