Marshall Anderson v. Allstate Insurance Co.

685 F.2d 1299, 1982 U.S. App. LEXIS 25609
CourtCourt of Appeals for the Eleventh Circuit
DecidedSeptember 16, 1982
Docket81-7006
StatusPublished
Cited by1 cases

This text of 685 F.2d 1299 (Marshall Anderson v. Allstate Insurance Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marshall Anderson v. Allstate Insurance Co., 685 F.2d 1299, 1982 U.S. App. LEXIS 25609 (11th Cir. 1982).

Opinion

*1300 TJOFLAT, Circuit Judge:

Marshall Anderson appeals the district court’s entry of summary judgment in favor of the Allstate Insurance Company on his uninsured motorist claim. Because it affirmatively appears from the record that Anderson was not insured by Allstate, we affirm.

I.

The facts are undisputed. In November 1977, Marshall Anderson lived in his father’s home in Colbert County, Alabama. Anderson owned one automobile, which he insured through State Farm Mutual Automobile Insurance Company, and his father owned two vehicles, both insured by Allstate Insurance Company.

On November 6,1977, Anderson was seriously injured in an automobile accident in Colbert County; he was driving the automobile he owned when it was struck by a vehicle driven by Timothy Bratcher. Anderson soon discovered that Bratcher was uninsured and he therefore filed a claim with his insurer, State Farm, for benefits under the uninsured motorist coverage of his policy. State Farm refused to pay Anderson’s claim, and in June 1978, Anderson sued State Farm in Alabama state court claiming $10,000, the amount of his policy limit, in damages. The case was set for trial in November 1979.

Late in October 1979, Anderson told his attorney that he was living with his father at the time of his accident. The attorney advised Anderson that he probably was covered under the uninsured motorist provisions of his father’s Allstate policy. Counsel also advised Anderson that because State Farm was the primary insurer, no claim could be made under that Allstate policy unless and until Anderson obtained a judgment against State Farm in excess of $10,000. Anderson therefore made no claim against Allstate prior to the conclusion of his suit against State Farm.

On November 14, 1979, Anderson obtained judgment against State Farm for $11,-200. 1 State Farm satisfied the judgment on December 13,1979. The next day Anderson instituted these proceedings against Allstate. Anderson alleged that his father’s Allstate policy provided him with excess uninsured motorist coverage, and he sought $30,000 in personal injury damages. The suit was Allstate’s first notice of Anderson’s November, 1977, accident.

Allstate’s answer denied that Anderson was an insured under his father’s policy and asserted, in the alternative, that Anderson failed to give it timely notice of the accident, a condition precedent to recovery. Allstate then moved for summary judgment. The district court granted the motion on November 26, 1980, concluding that Anderson’s failure to notify Allstate until twenty-five months after his accident breached the notice requirement of its policy and precluded Anderson’s claim. This appeal followed.

II.

In granting Allstate’s motion for summary judgment, the district court assumed that Anderson was an insured under his father’s Allstate policy. That assumption was clearly in error, for it affirmatively appears from the record that Anderson was not an insured under that policy.

The uninsured motorist provision of the Allstate policy defines persons insured under that provision as:

(a) the named insured [Anderson’s father] the spouse of any such named insured and relatives of either, while residents of the same household [Anderson];

Anderson plainly is an insured under the above provision. Under the terms of a policy exclusion, however, he is not covered for the injuries he sustained in his accident. The exclusion states that uninsured motorist coverage does not apply:

to bodily injury to an insured [Anderson] while occupying an automobile (other *1301 than an insured automobile) owned by ... any relative resident in the same household [Anderson] ....

Anderson claims that this exclusion is unenforceable under the holding of the Alabama Supreme Court in State Farm Automobile Ins. Co. v. Reaves, 292 Ala. 218, 292 So.2d 95 (Ala.1974). In Reaves, a relative of the named insured, who lived in the named insured’s household, was injured when his motorcycle was struck by an uninsured motorist. The relative was covered under the liability section of the named insured’s policy, but he was excluded from the uninsured motorist coverage of the policy by a provision nearly identical to that contained in the Allstate policy before us. Construing Title 36, § 74(62a) of the Code of 1940, now Ala.Code § 32-7-23 (1975), the Reaves court concluded that “once an automobile liability policy is issued extending [liability] coverage to a certain class of insureds . . . uninsured motorist coverage must be offered to cover the same class of insured.” Reaves, 292 So.2d at 99. Because the policy provided the relative liability protection, the Reaves court refused to enforce the exclusion that removed the relative from uninsured motorist coverage absent a showing that such coverage had been offered to and affirmatively rejected by the named insured. Id.

In a decision following Reaves, the Alabama Supreme Court made it clear that exclusions like the one in Allstate’s policy are unenforceable only where they deny uninsured motorist coverage to “persons insured under the' liability provisions of the policy.” Alabama Farm Bureau Mutual Cas. Ins. Co. v. Pigott, 393 So.2d 1379, 1382 (Ala.1981). Thus, the Allstate provision that denies Anderson uninsured motorist coverage is enforceable if the policy also denies him liability coverage.

We turn, then, to the liability provisions of the Allstate policy. Referring to Anderson’s father as the named insured, these provisions state that the following persons are insured:

1. The named insured with respect to the owned or a non-owned automobile, provided the use of such non-owned automobile is with the permission, or reasonably believed to be with the permission, of the owner and is within the scope of such permission;
2. Any resident of the named insured’s household with respect to the owned automobile;
3. Any other person with respect to the owned automobile, provided the use thereof is with the permission of the named insured and within the scope of such permission;
4. Any relative with respect to a non-owned private passenger automobile or trailer not regularly furnished for use of such relative, provided the use by such relative is with the permission, or reasonably believed to be with the permission, of the owner and is within the scope of such permission; and
5. Any other person or organization, but only with respect to his or its liability because of acts or omissions by a person who is insured under any of the four preceding paragraphs; provided the automobile, if a non-owned automobile, is not owned or hired by such other person or organization. 2

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Cite This Page — Counsel Stack

Bluebook (online)
685 F.2d 1299, 1982 U.S. App. LEXIS 25609, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marshall-anderson-v-allstate-insurance-co-ca11-1982.