National Union Fire Insurance v. Truck Insurance Exchange

479 P.2d 189, 13 Ariz. App. 541, 1971 Ariz. App. LEXIS 453
CourtCourt of Appeals of Arizona
DecidedJanuary 7, 1971
DocketNo. 1 CA-CIV 1297
StatusPublished
Cited by5 cases

This text of 479 P.2d 189 (National Union Fire Insurance v. Truck Insurance Exchange) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Union Fire Insurance v. Truck Insurance Exchange, 479 P.2d 189, 13 Ariz. App. 541, 1971 Ariz. App. LEXIS 453 (Ark. Ct. App. 1971).

Opinion

JACOBSON, Presiding Judge.

This appeal seeks a determination of the present validity of an Arizona statute first enacted in 1927 allowing an insurer of rental vehicles to exclude coverage to a driver-lessee for injuries incurred by a passenger in the rented automobile.

Plaintiff-appellee, Truck Insurance Exchange, brought a declaratory judgment action against defendant-appellant, National Union Fire Insurance Company of Pittsburgh, Pa., to determine which insurance company owed the duty to defend Thomas Patrick Murphy. The question of defense arose out of an action brought by Toni Delores Hawthorne against Murphy arising out of an automobile accident involving a vehicle rented by Murphy from Temple Corporation, d/b/a Thrifty Rent-A-Car. Miss Hawthorne was a passenger in the rented automobile driven by Murphy. There being no factual dispute, the matter was determined in the trial court on cross-motions for summary judgment.

Prior to August 9, 1967, Truck Insurance had issued to Thrifty Rent-A-Car a truckmen’s comprehensive insurance policy which covered persons and firms leasing vehicles from Thrifty Rent-A-Car for bodily injury and property damage. This policy of insurance contained an endorsement which excluded coverage of a lessee or driver of a rental vehicle with respect to any injuries sustained by a person riding as a passenger in the rented vehicle.

On August 9, 1967, Thomas Patrick Murphy, while driving a car rented from Thrifty Rent-A-Car, was involved in an accident in which his passenger, Toni Delores Hawthorne, was injured. At the time of the accident, Murphy had a policy of insurance issued by National Union which provided excess coverage while Murphy was driving a non-owned vehicle.

As a result of a suit filed by the passenger against Murphy, a controversy arose as to which insurer provided primary coverage and the obligation to defend, hence the declaratory judgment action. The trial court upheld Truck Insurance’s restrictive endorsement and entered judgment in its favor.

The restrictive endorsement in the Truck Insurance policy is authorized by A.R.S. § 28-324. This statute, initially enacted in 1927, requires an owner of a motor vehicle leasing business, as a prerequisite to registration of motor vehicles used in the business to obtain “public liability insurance” from an approved insurance company. The specific authorizing language of this statute provides:

“The policy of insurance required by this subsection shall cover any liability of the renter to any passenger in the rented motor vehicle unless the owner gives the renter a written notice that the policy does not cover such liability.” (Emphasis added.)

That written notice of the limiting aspects of the Truck Insurance policy was given to Murphy, was evidenced by a document signed by him.

National Union makes two basic contentions on appeal:

“(1) That ARS § 28-324 is void as against the public policy of this state, and
“(2) That ARS § 28-324 has been repealed by implication by the enactment of the Arizona Safety Responsibility Act (ARS §28-1141 et seq.).

As to the first contention, National Union has failed to cite any case which holds that the court can decree a legislative enactment void merely because it may be contrary to the court’s current notion of that communal expediency known as “public policy.” On the contrary, the Arizona courts have continually held that absent constitutional limitations, the legislature is the last arbiter of what is “good” public policy or the wisdom thereof. Harrison v. Laveen, 67 Ariz. 337, 196 P.2d 456 (1948).

“Questions as to the wisdom of the law, as to its expediency or concerning the soundness of policy outlined therein must be addressed to the legislature.” Roberts v. Spray, 71 Ariz. 60, 223 P.2d [543]*543808 (1950), cited in Bonnin v. Industrial Commission, 6 Ariz.App. 317, 432 P.2d 283 (1967).

See also, State v. Surety Finance Co., 42 Ariz. 42, 21 P.2d 929 (1933) wherein the Court states: “the matter of the public policy of the state is entirely in the hands of the Legislature, except as restrained by the Constitution.”

We would be guilty of the most flagrant exercise of that justly maligned practice of judicial legislation to hold a statute invalid on the basis of judicially declared public policy. (See Ariz.Const. Art. Ill, A.R.S.) This we decline to do.

The reluctance with which courts undertake to void statutory enactments is evident when considering the legal principles involved in National Union’s second contention — implied repeal. National Union argues that since the Safety Responsibility Act was enacted in 1951 and deals with the same subject matter — automobile insurance — as A.R.S. § 28-324, the 1927 enactment, the latter act, by implication repealed the former.

This argument is supplemented by National Union with a contention that Jenkins v. Mayflower Insurance Exchange, 93 Ariz. 287, 380 P.2d 145 (1963), made the omnibus insured clause of the Safety Responsibility Act a part of every automobile policy. Therefore, if the Safety Responsibility Act did not impliedly repeal A.R.S. § 28-324 by the express terms of the latter legislation itself, it has been impliedly repealed by the judicial interpretation of the scope of the Act.

Looking first to the implied repeal argument without the nuances of the Jenkins v. Mayflower contention, the general rule is that “repeals by implication are not favored, and will not be indulged, if there is any other reasonable construction.” Rowland v. McBride, 35 Ariz. 511, 281 P. 207 (1929); Southern Pacific Co. v. Gila County, 56 Ariz. 499, 109 P.2d 610 (1941). Thus, different statutes bearing on the same subject matter are construed, if possible, to give effect to all of them. Ariz. Corp. Com’n. v. Catalina Foothills Estates, 78 Ariz. 245, 278 P.2d 427 (1954). Moreover, it is only when no reasonable construction of both statutes can make them both operative, will the courts hold that the latter statute repeals the former. Burnside v. Douglas School District No. 27, 33 Ariz. 1, 261 P.629 (1927).

With these remonstrances in mind, we will view the possible objective of both statutes to determine whether they can both be made operative. While both statutes deal with the general field of automobile insurance, it is clear that they are attempting to reach different evils resulting from the use of the highways by motor vehicles.

A.R.S. § 28-324

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479 P.2d 189, 13 Ariz. App. 541, 1971 Ariz. App. LEXIS 453, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-union-fire-insurance-v-truck-insurance-exchange-arizctapp-1971.