McCaffery v. Grow

787 P.2d 901, 128 Utah Adv. Rep. 36, 1990 Utah App. LEXIS 25, 1990 WL 16345
CourtCourt of Appeals of Utah
DecidedFebruary 16, 1990
DocketNo. 880566-CA
StatusPublished
Cited by2 cases

This text of 787 P.2d 901 (McCaffery v. Grow) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCaffery v. Grow, 787 P.2d 901, 128 Utah Adv. Rep. 36, 1990 Utah App. LEXIS 25, 1990 WL 16345 (Utah Ct. App. 1990).

Opinion

ORME, Judge:

Appellant Michael H. McCaffery appeals from a summary judgment order dismissing his claim against respondent insurance company for personal injury protection benefits. We affirm.

FACTS

The facts are essentially undisputed in this case. On August 27, 1986, a group of high school students attended a “last summer fling” drinking party in East Canyon. Sometime during the party, Christopher McCaffery, Rodney Grow, and Michael Quintana went joyriding up and down East Canyon in an automobile owned by Michael Morris, without his knowledge or permission. While Rodney Grow was driving the vehicle, he lost control and crashed into a tree. The three young men were killed.

The automobile was not insured. Moreover, it appears that neither Christopher McCaffery, nor his parents with whom he resided, had automobile insurance. Rodney Grow and his mother, who had signed Rodney’s driver’s license application, were insureds of respondent State Farm Mutual Automobile Insurance Company (“State Farm”) at the time of the accident.

Michael McCaffery (“McCaffery”) brought suit against several defendants on behalf of his late son Christopher’s estate. He claimed that Rodney Grow was liable, and so sued his father and personal representative, Terry Grow. He claimed Pat Grow, Rodney’s mother, was jointly and severally liable because she signed Rodney’s driver’s license application and Rodney Grow was still a minor at the time of his death. He claimed that State Farm was responsible as the insurer of Rodney Grow.

McCaffery settled all claims against all defendants except for his claim for personal injury protection (“PIP”) benefits against State Farm. State Farm moved for summary judgment on this claim. It argued that neither its insurance policy nor the law requires the payment of PIP benefits to a passenger injured in an automobile which is not covered by the policy, even though driven by an insured, where the insured does not have the permission of the owner. The district court agreed and granted State Farm summary judgment.

On appeal, McCaffery raises several arguments. Although he did not himself see fit to secure the insurance required by the same law, he claims that the State Farm policy impermissibly denies PIP benefits in contravention of Utah’s insurance code and public policy. He asserts that the language in the insurance policy is ambiguous and should be construed against State Farm to allow recovery of PIP benefits. He argues that State Farm should pay the PIP benefits because it also insured Pat Grow, who was liable as the signor of Rodney’s motor vehicle license application. Finally, McCaffery argues that he is entitled to subrogation from State Farm for the expenses he incurred as a result of Grow’s negligence.

DENIAL OF PIP BENEFITS

The motor vehicle insurance sections of Utah’s insurance code require every insurer to include liability coverage, uninsured motorist coverage, and PIP coverage in their motor vehicle insurance policies. See Utah Code Ann. § 31A-22-302 (1989). The code extends PIP coverage to individuals described in Utah Code Ann. § 31A-22-308 (1986) and prevents the insurer from excluding PIP benefits to those [903]*903persons except in seven narrowly defined situations. See Utah Code Ann. § 31A-22-309 (1989).1

McCaffery focuses his argument on the exclusionary provision set forth in section 309, relying on State Farm Mut. Auto. Ins. Co. v. Mastbaum, 748 P.2d 1042 (Utah 1987), and Farmers Ins. Exch. v. Call, 712 P.2d 231 (Utah 1985). These cases held that an insurance company could not create an exclusion which would prevent a resident family member of the insured from recovering PIP benefits under the insured’s policy.

In response to McCaffery’s position, State Farm argues the issue is not one of exclusion from coverage. Rather, State Farm argues that, unlike the plaintiffs in Mastbaum and Call, Christopher McCaf-fery was never included in the class of insureds. See Osuala v. Aetna Life & Cas., 608 P.2d 242, 243 (Utah 1980). See also Protective Nat’l Ins. Co. v. Padron, 310 So.2d 432, 433 (Fla.Dist.Ct.App.1975). We agree.

The insurance code provides that “[e]very policy of insurance or combination of policies, purchased to satisfy the owner’s or operator’s security requirement ... shall also include personal injury protection under sections 31A-22-306 through 31A-22-309.” Utah Code Ann. § 31A-22-302(2) (1989). Section 306 then states that “[p]er-sonal injury protection under Subsection 31A-22-302(2) provides coverages and benefits ... to persons described under § 31A-22-308, but is subject to the limitations, exclusions, and conditions set forth in § 31A-22-309.” Utah Code Ann. § 31A-22-306 (1986) (emphasis added). Thus, we must first look to section 308 to determine who is within the scope of the PIP coverage and benefits provided for by law.

Section 308 provides;

The following may receive benefits under personal injury protection coverage:
(1) the named insured and persons related to the insured by blood, marriage, adoption, or guardianship who are residents of the insured’s household, including those who usually make their home in the same household but temporarily live elsewhere, when injured in an accident in Utah involving any motor vehicle; and
(2) any other natural person whose injuries arise out of an automobile accident occurring in Utah while the person occupies a motor vehicle described in the policy with the express or implied consent of the named insured or while a pedestrian if he is injured in an accident involving the described motor vehicle.

Utah Code Ann. § 31A-22-308 (1986) (emphasis added). As concerns the subject State Farm policy, McCaffery does not, nor could he, claim that Christopher falls within the ambit of section 308. Christopher was not a relative of the Grows who resided with them nor was he killed while riding in the Grow vehicle insured by State Farm. Thus, the law did not require State Farm to extend PIP benefits to someone in Christopher’s position.2

[904]*904Nor does State Farm’s policy purport to extend PIP benefits to Christopher. The policy stated, in the No-Fault section, that State Farm would “pay in accordance with the No-Fault Act for bodily injury to insured caused by accident resulting from the maintenance or use of a motor vehicle as a

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Bluebook (online)
787 P.2d 901, 128 Utah Adv. Rep. 36, 1990 Utah App. LEXIS 25, 1990 WL 16345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccaffery-v-grow-utahctapp-1990.