Bobbitt v. Shelby Mutual Insurance

161 S.E.2d 671, 209 Va. 37, 1968 Va. LEXIS 191
CourtSupreme Court of Virginia
DecidedJune 10, 1968
DocketRecord No. 6724
StatusPublished
Cited by1 cases

This text of 161 S.E.2d 671 (Bobbitt v. Shelby Mutual Insurance) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bobbitt v. Shelby Mutual Insurance, 161 S.E.2d 671, 209 Va. 37, 1968 Va. LEXIS 191 (Va. 1968).

Opinion

Buchanan, J.,

delivered the opinion of the court.

The question for decision in this case is whether an automobile collision insurance carrier, which has paid a loss sustained by its insured and caused by the negligence of an uninsured motorist, can recover the amount so paid from its insured’s automobile liability insurance carrier under the uninsured motorist endorsement in the latter’s policy.

In 1963, John H. Bobbitt was involved in an automobile accident with Jimmie Lee Rodwell, an uninsured motorist. Motors Insurance [38]*38Corporation (Motors Insurance), which had issued to Bobbitt a policy of automobile collision insurance, paid the cost of repairs to Bobbitt’s vehicle, less $100, the amount deductible by the terms of the policy.

Bobbitt brought an action against Rodwell to recover damages for his property loss, and served process on Shelby Mutual Insurance Company of Shelby, Ohio (Shelby Mutual), as provided by Code § 38.1-381 (e) (1), the Uninsured Motorist Act. Shelby Mutual had issued to Bobbitt a policy of automobile liability insurance with an uninsured motorist endorsement. Following a trial, on January 12, 1965, judgment was entered for Bobbitt against Rodwell in the amount of $1039.70, the amount for which Bobbitt had sued.

Thereafter, Bobbitt, on behalf of Motors Insurance,1 brought this action against Shelby Mutual, alleging the uninsured motorist endorsement in the Shelby Mutual policy and seeking to recover the amount of Bobbitt’s unpaid judgment against Rodwell. Shelby Mutual filed its answer denying liability to Bobbitt because of a provision of its policy that the property damage coverage therein applied as “only excess insurance over any other valid and collectible insurance of any kind,” and alleging that Bobbitt did possess such other insurance, issued to him by Motors Insurance.

The case was submitted to the court on a stipulation of facts, in substance as stated above, with the stipulation, as stated, that the real plaintiff in interest was Motors Insurance by virtue of its payment to Bobbitt under its collision policy issued to him, and that if plaintiff be entitled to judgment, the sum should be $839.70, the full amount of the judgment against Rodwell, less $200, deductible under the property damage provision of the uninsured motorist endorsement, as permitted by Code § 38.1-381 (b).

The court found in favor of defendant Shelby Mutual and entered judgment accordingly. Bobbitt was granted a writ of error. Neither of the insurance policies involved is in the record.

Appellant Bobbitt contends that since Motors Insurance has paid the amount of his loss caused by Rodwell’s negligence, it stands in his (Bobbitt’s) shoes under general principles of subrogation, and can [39]*39recover from Shelby Mutual by the terms of the Uninsured Motorist Act, Code § 38.1-381 (b) — (h).

As a general rule, an insurer of an automobile against collision, which pays to its insured the amount of his damage, is subrogated to its insured’s right of action against third persons who may be responsible for the loss. 46 C.J.S., Insurance, § 1209, p. 157; 7 Am. Jur.2d, Automobile Insurance, § 204, p. 547.

However, as this court stated in Horne v. Insurance Company, 203 Va. 282, 285, 123 S.E.2d 401, 404:

* * It is not the purpose of the uninsured motorist law to provide coverage for the uninsured vehicle,, but its object is to afford the insured additional protection in event of an accident. Here, [the uninsured motorist carrier] does not stand in the shoes of * * the uninsured motorist. Its policy does not insure [the uninsured motorist] against liability. It insures [the insured] * * against inadequate compensation.” See also General Accident v. Aetna, 208 Va. 467, 473-74, 158 S.E.2d 750, 754, and cases there cited.

The uninsured motorist Rodwell is the person responsible for the loss, and Shelby Mutual does not stand in his shoes.

By contract Bobbitt obtained the coverage provided by both Motors Insurance and Shelby Mutual. Motors Insurance paid his loss according to its contract. It now seeks to shift the burden of that loss to another of his insurers.

Appellant argues that Shelby Mutual must pay the property damage loss caused by the uninsured motorist because of the provision of Code § 38.1-381 (b)2 that an automobile liability policy shall contain an endorsement “undertaking to pay the insured all sums [40]*40which he shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle”; that since Shelby Mutual must pay all sums which Bobbitt shall be legally entitled to recover from Rodwell and since that amount has been determined, Motors Insurance, standing in Bobbitt’s place, can collect from Shelby Mutual.

Subsection (b) of § 38.1-381 required the uninsured motorist carrier to pay to the insured all sums which he shall be entitled to recover from the uninsured motorist. Subsection (c) defined “insured” to mean “the named insured and, while resident of the same household, the spouse of any such named insured, and relatives of either, while in a motor vehicle or otherwise, and any person who uses, with the consent, expressed or implied, of the named insured, the motor vehicle to which the policy applies and a guest in such motor vehicle to which the policy applies or the personal representative of any of the above * Plainly, an insurer of the named insured was not defined as an “insured” and hence plaintiff must find reason elsewhere to be entitled to benefit from the requirement of Code § 38.1-381 (b).

Appellant relies on a claimed right of subrogation and urges that only subsection (h) of the Uninsured Motorist Act, as interpreted by this court in Horne v. Insurance Company, supra, 203 Va. 282, 123 S.E.2d 401, limits the right of subrogation under the Act.

In Horne it was held that in the absence of a statutory provision giving the employer or its workmen’s compensation carrier a right of subrogation against the insurer of an employee under the uninsured motorist provision of a liability policy, such a right did not exist, and that neither Code § 65-38 [part of the Workmen’s Compensation Act] nor Code § 38.1-381 (h) gave such a right of subrogation.

This court recently repeated in General Accident v. Aetna, supra, 208 Va. at 473, 158 S.E.2d at 754, quoting from U.S.F. & G. v. Byrum, 206 Va. 815, 818, 146 S.E.2d 246, 248, that subsection (f) of § 38.1-381 “is the only provision in the uninsured motorist law which permits subrogation.”

Subsection (f) provided in part:

“Any insurer paying a claim under the endorsement or provisions required by paragraph (b) of this section shall be subrogated to the rights of the insured to whom such claim was paid against [41]*41the person causing such injury, death or damage to the extent that payment was made * 3

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Related

Bobbitt v. SHELBY MUTUAL INS. CO. OF SHELBY, OHIO
161 S.E.2d 671 (Supreme Court of Virginia, 1968)

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Bluebook (online)
161 S.E.2d 671, 209 Va. 37, 1968 Va. LEXIS 191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bobbitt-v-shelby-mutual-insurance-va-1968.