Insurance Co. of North America v. Williams

226 So. 2d 292, 45 Ala. App. 115, 1968 Ala. App. LEXIS 428

• Court: Alabama Court of Appeals
• Decided: April 23, 1968
• Docket: 6 Div. 362
• Status: Published

Opinions

JOHNSON, Judge.

This case was submitted to this court on the following stipulated facts contained in appellant’s brief:

“The insured, R. J. Williams, Jr., was killed December 18, 1965, in a train truck collision in Arkansas while riding as a passenger in a pickup truck not owned by him. Mr. Williams at the time of his death owned two automobiles which were insured by appellant under two policies whose terms are identical. The policies contained a provision for a $1,000 death benefit and the appellant paid the benefits due under one policy but denies liability for death benefits under both policies.”

It appears that the accidental death benefit was added subsequent to the deceased’s purchasing the policies under a “Liberalization Clause.” The appellant insurance company in refusing to pay the $1,000 death benefit under the second policy relies on the condition contained within a paragraph which states the following:

“OTHER INSURANCE IN THIS COMPANY

"If the named insured carries other automobile insurance with this Company covering a loss also covered by this policy, the Insured must elect which policy shall apply, and the Company shall be liable under the policy so elected, but shall not be liable under any other such policy. If more than one Insured is required to elect, they must agree to elect the same policy. If any Insured fails to elect within 20 days after being notified of the requirement to elect, he shall have waived his right to elect to the Company. (Emphasis ours.)

Appellant contends that this provision requiring an election of policies is susceptible to only one meaning; that it is not ambiguous; and that a ruling in favor of the appellee would result in a new contract.

Appellee argues that the accidental death benefit is paid under an “accidental death policy” and to that extent it is not “other automobile insurance” as relied upon by the appellant.

Appellee cites to us Government Employees Insurance Company v. Sweet, Fla.App., 186 So.2d 95, wherein the action was to recover under the' medical payments provisions of an automobile liability policy issued by the appellant insurance company covering two automobiles. In Sweet, supra, the District Court of Appeals of Florida stated in part as follows:

“The medical payments coverage applies to all medical expenses of the named insured while occupying or through being struck by an automobile, except an automobile owned by or furnished for the regular use of the named insured which is not described in the policy. This is the feature which makes medical payments insurance coverage an entirely different type of insurance than public liability or property damage insurance where coverage is attributed to the vehicle causing the damage. Medical payment provisions are closely akin to a personal accident policy; recovery is completely independent of liability on the part of the insured.” (Emphasis ours.)

We agree with the reasoning in the foregoing Sweet case.

Tit. 28, Sec. 106, Code of Ala., 1940, sets out the kinds of insurance which a mutual insurance company may contract for and also gives a brief definition of each type of insurance. For the purpose of definition this section may be applied to stock companies as well. Tit. 28, Sec. 106, supra, states in part as follows:

“Any company licensed under the provisions of this article may make contracts of insurance or to reinsure or accept reinsurance on any portion thereof, to the extent specified in its articles, for the kinds of insurance, following:

* * * * * *

“Disability insurance. Against bodily injury or death by accident and disability by sickness.

"Automobile insurance. Against any or all loss, expense and liability, resulting from the ownership, maintenance or use of any automobile or other vehicle.” (Emphasis ours.)

Thus, automobile insurance under this section is predicated upon either owning, maintaining or using an automobile or other vehicle.

The accidental death benefit provision contained in the policy issued to the deceased in the case at bar does not ground recovery on either owning, maintaining or using an automobile but states: “caused by accident and sustained by the named insured or any relative while occupying an automobile or through being struck by an automobile. * * * ” Under this clause, recovery may be had when the insured is a pedestrian and is struck by an automobile.

In Commercial Standard Ins. Co. v. New Amsterdam Cas. Co., 272 Ala. 357, 131 So.2d 182, the court stated the following:

“The general rule is that insurance policies should be liberally construed in favor of the insured and words of the policy must be given their ordinary and generally understood meaning. Strained or unusual construction of any of the terms should not be indulged in in favor of either the insurer or the insured.”

To hold that “automobile insurance” as used in the instant case encompasses the accidental death benefit provision would be placing a strained construction upon the words.

We conclude, therefore, that an accidental death benefit coverage in an automobile policy is a separate and distinct type of insurance and must, therefore, be treated as such in any and all provisions and conditions within the policy including the condition of electing which policy shall apply when the insured carries other insurance with the same company covering the same loss.

This cause is due to be and the same is hereby

Affirmed.