Simmons v. Hartford Accident & Indemnity Company

1975 OK 155, 543 P.2d 1384
CourtSupreme Court of Oklahoma
DecidedNovember 4, 1975
Docket46724
StatusPublished
Cited by19 cases

This text of 1975 OK 155 (Simmons v. Hartford Accident & Indemnity Company) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Simmons v. Hartford Accident & Indemnity Company, 1975 OK 155, 543 P.2d 1384 (Okla. 1975).

Opinions

BARNES, Justice:

The question presented by Appellant is whether, as to him, the vehicle in which he was riding at the time of the accident in question was uninsured within the meaning of Title 36 O.S.1971, § 3636 [Uninsured Motorist Coverage], and the insurance policies then in force.

Appellant Simmons’ injuries and damages were admittedly caused by the negligence of the driver of the car in which he was a passenger. Hartford Accident & Indemnity Company [Hartford] had issued a policy of insurance on the automobile in which Appellant was riding, with limits of $5,000.00 for injury to one person and $10,000.00 for injury to two or more persons. Admittedly the driver of the car was insured under the terms of the policy, and Hartford had expended the sum of $9,211.30 in settlement of claims arising out of the accident to occupants of the other car involved in the accident. Hartford tendered to Appellant Simmons the unex-pended balance [$788.70] of the $10,000.00 liability assumed by it on account of the negligence of the driver of the car in [1386]*1386which Appellant Simmons was riding. Simmons refused the tender, contending that in order to satisfy the requirement of “insured motorist” the limit of liability should be $5,000.00 for each person injured, irrespective of the number of persons injured. He further reasoned that since, in his opinion, the driver of the car in which he was riding was uninsured as to him, then he would be permitted to invoke the uninsured motorist benefits of his own policy with Progressive Casualty Insurance Company, as well as the uninsured motorist coverage of the Hartford policy.

The other car and driver involved in the accident were not covered by liability insurance. The driver of that car, Darlene Johnson, was joined as a party defendant in an earlier action, along with the Estate of Carvin Ballard, deceased, on the theory that they were joint tort-feasors. Service was never obtained upon Darlene Johnson, and Appellant recovered a $15,000.00 judgment against Earlie Ballard, Administrator of the Estate of Carvin Ballard, deceased. Appellant then brought this suit against Hartford and Progressive.

The case hinges upon the interpretation of 47 0.S.1971, §7-204:

“(a) No policy . . • . shall be effective . . . unless issued by an insurance company or surety company unless such policy or bond is subject, if accident has resulted in bodily injury or death, to a limit, exclusive of interest and costs, of not less than Five Thousand Dollars ($5,000.00) because of bodily injury to or death of one person in any one accident and, subject to said limit for one person, to a limit of not less than Ten Thousand Dollars ($10,000.00) because of bodily injury to or death of two or more persons in any one accident . . . .”

and 36 O.S.1971, § 3636:

“(B) The policy (liability coverage for bodily injury) shall provide coverage therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and . hit-and-run motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom. Coverage shall be not less than the amounts of limits prescribed for bodily injury or death for a policy meeting the requirements of 47 O.S.1961, § (7-204) ....
“(C) For the purposes of this coverage the term ‘uninsured motor vehicle’, shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle where the liability insurer thereof is unable to make payment with respect to the legal liability of its insured within the limits specified therein because of insolvency.”

and the uninsured motorist provision in Progressive’s policy:

“Coverage I — Damages for Bodily Injury Caused by Uninsured Automobiles. To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury. . . .
* * * * * *
“ ‘Uninsured automobile’ means:
(a) an automobile or trailer with respect to the ownership . . in at least the amounts specified by the financial responsibility law of the state in which the insured automobile is principally garaged, no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person ... or with respect to which there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same denies coverage thereunder. . . . ”

We have not previously passed on the meaning of uninsured motorist as used in § 3636, supra, but a number of the courts have.

[1387]*1387In Villarreal v. Texas Farmers Ins. Co. (Tex.Civ.App.), 510 S.W.2d 633, the Court said:

“The terms insured and uninsured are words of common meaning and understanding. An insured is a person whose life or property is insured by a policy of insurance. The prefix ‘un’ means not! Automobile liability insurance is insurance that provides protection against loss from or legal liability for damages arising out of the ownership, maintenance, or operation of a motor vehicle. It is the duty of the courts to give full recognition to the legislative intent. When the intent is plainly expressed in the language of a statute, we must give effect to such language without attempting to construe or give it a meaning that its ordinary signification does not import. The definitions of an uninsured automobile in the respective policies of these plaintiffs do not contravene the intent and purpose of the statute in question. See Detrick v. Aetna Casualty and Surety Company, 261 Iowa 1246, 158 N.W.2d 99 (1968).
“Here Gerald Mitchell was the owner of a policy of liability insurance. He was insured in the amount required by the Texas Motor Vehicle Safety Responsibility Law. Mitchell was insured under any definition of the word, and in particular under the definition of ‘uninsured automobile’ which is contained in the uninsured motorist’s provisions of the Standard Texas Family and Automobile insurance policy. Mitchell had insurance in the amount that was required under Texas law. Mitchell’s liability carrier was not insolvent. The company did not deny coverage. It is clear to us that Mitchell was not an uninsured motorist so that the uninsured motorist provision in plaintiffs’ insurance policies could come into effect.
“ . . . Our Supreme Court has approved the holding in Kemp v. Fidelity & Casualty Co. of New York, supra, which is contrary to Porter (Porter v.
Empire Fire & Marine Ins. Co., [106 Ariz. 274] 475 P.2d 258).”

In Kemp v. Fidelity & Casualty Co. of New York (Tex.Civ.App.), 504 S.W.2d 633, the Texas Court said:

“Appellants rely upon

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Simmons v. Hartford Accident & Indemnity Company
1975 OK 155 (Supreme Court of Oklahoma, 1975)

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Bluebook (online)
1975 OK 155, 543 P.2d 1384, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simmons-v-hartford-accident-indemnity-company-okla-1975.