Johnson v. Jackson

504 So. 2d 88
CourtLouisiana Court of Appeal
DecidedFebruary 25, 1987
Docket18412-CA
StatusPublished
Cited by11 cases

This text of 504 So. 2d 88 (Johnson v. Jackson) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Jackson, 504 So. 2d 88 (La. Ct. App. 1987).

Opinion

504 So.2d 88 (1987)

George W. JOHNSON and Janie L. Johnson, Plaintiffs-Appellants,
v.
Collin L. JACKSON, et al., Defendants-Appellees.

No. 18412-CA.

Court of Appeal of Louisiana, Second Circuit.

February 25, 1987.
Rehearing Denied March 25, 1987.
Writ Denied May 29, 1987.

*89 Peters, Ward, Bright & Hennessy by Michael G. Latimer and J. Patrick Hennessy, Shreveport, for plaintiffs-appellants.

Hicks & Bookter, Shreveport, for defendant-appellee, Firemen's Insurance Company of Newark, New Jersey.

Nelson & Achee, Ltd. by Roland Achee, Shreveport, for defendant-appellee, Hubert Logan.

Before HALL, FRED W. JONES, Jr. and NORRIS, JJ.

FRED W. JONES, Jr., Judge.

Logan was driving a pickup truck owned by Johnson, who was a guest passenger. The truck was hit in the rear by a Datsun automobile owned and operated by Jackson.

Fireman's Insurance Company of Newark, New Jersey ("Fireman's") had issued to Johnson a liability insurance policy covering the pickup truck providing, for each accident, liability coverage of $100,000 and uninsured motorist ("UM") coverage of $100,000. State Farm Mutual Automobile Insurance Company ("State Farm") had issued an insurance policy covering the Jackson vehicle with liability limits of $10,000.

Johnson and his wife sued Jackson, State Farm and Fireman's under the latter's UM section of its liability policy. Later added as defendants were Logan and Fireman's, as Logan's liability insurer. It was alleged that Logan's negligent acts contributed to the accident in question.

State Farm tendered to plaintiffs its $10,000 policy limits and the tender was accepted. Also accepted by plaintiffs was Fireman's tender of the $100,000 policy limits under its UM coverage.

Fireman's moved for a summary judgment as the liability insurer of Logan on the basis of a reduction clause in the UM section of its insurance policy. The trial judge sustained the motion and dismissed plaintiff's claim against Fireman's as the liability insurer of Logan. Plaintiffs appealed *90 this judgment. For the reasons hereinafter explained, we reverse.

The insurance policy covering the Johnson pickup truck contained the following reduction clause in the UM section of the policy:

"Payments under this coverage will reduce the amount that a person is entitled to recover under Part 4 of this policy."
Part 4 provided liability coverage under the policy.

In its written reasons for sustaining the motion for summary judgment the trial court stated:

"The Court is not persuaded that the reduction or credit provision of the Fireman's policy is against public policy where the dollar amounts are similar in the liability and uninsured/underinsured limits. The purpose of the limit of liability clause is to reduce the exposure of the insured by the amounts paid under the bodily injury liability coverage or uninsured/underinsured motorist coverage."

It is recognized that insurers may, by unambiguous and clearly noticeable provisions, limit liability and impose such reasonable conditions as they may wish upon the obligations they assume by contract, absent conflict with a statute or public policy. Oceanonics, Inc. v. Petroleum Distributing Co., 292 So.2d 190 (La.1974).

The question in this case is whether the reduction clause in the insurance policy covering the Johnson pickup truck violates a statute or public policy.

UM coverage in this state is based upon the requirements of La.R.S. 22:1406 D(1)(a), as follows:

D. The following provisions shall govern the issuance of uninsured motorist coverage in this state.
(1)(a) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators or uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; provided, however, that the coverage required under this Subsection shall not be applicable where any insured named in the policy shall reject in writing the coverage or selects lower limits

Louisiana's UM statute embodies public policy. Therefore, any conflicting clause in a policy of insurance is invalid. Nall v. State Farm Mutual Automobile Insurance Co., 406 So.2d 216 (La.1981); Breaux v. Government Employees Insurance Co., 369 So.2d 1335 (La.1979).

The issue of whether a claimant could recover under both the liability and UM provisions of the same policy was first presented to the Louisiana Supreme Court in Breaux.

This case involved a one-car accident. The sole cause of the accident was the negligence of the host driver. The parents of the passenger who was killed in the accident brought an action seeking recovery under the UM clause of the policy which insured the parents' automobile after the parents had entered into a settlement with the insurer who had issued the policy insuring the negligently driven vehicle.

The parents' policy provided that the insurer would pay all sums which any insured should be legally entitled to recover as damages from the owner or operator of an "uninsured automobile". The policy expressly excluded from the definition of an "uninsured automobile" an "insured automobile".

The court concluded that the UM statute implicitly distinguished between an "insured vehicle" and an "uninsured vehicle" and did not contemplate that a single vehicle could be both the insured and uninsured *91 vehicle. The statute does not require that the insured automobile be considered an uninsured (underinsured) automobile after exhaustion of the liability coverage for negligence of the host driver. Therefore, policy provisions which exclude the insured automobile from the definition of uninsured motor vehicle were held to be enforceable.

The court explained:
"A person insured under the uninsured motorist provision of a particular policy... must establish that he is legally entitled to recover damages from the owners or operators of uninsured or underinsured motor vehicles in order to obtain coverage thereunder. As to coverage under the uninsured motorist provisions of a particular policy, the statute thus contemplates two distinct motor vehicles: the motor vehicle with respect to which uninsured motorist coverage is issued and the `uninsured or underinsured' motor vehicle. In addition, as to each policy containing uninsured motorist coverage, the statute distinguishes between the person insured under the policy in question and the owner or operator of the uninsured or underinsured motor vehicle."

The court held that the clause in the policy which denied UM coverage to the parents was valid since it was not in derogation of the mandatory requirements set forth in our UM statute.

Our supreme court again considered this issue in Nall. A guest passenger was injured when the vehicle in which he was riding was involved in a collision with another vehicle. The collision was caused by the negligence of the host driver.

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Bluebook (online)
504 So. 2d 88, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-jackson-lactapp-1987.