Emick v. Dairyland Insurance
Emick v. Dairyland Insurance
Opinion of the Court
On January 18, 1974 a judgment was entered in the Circuit Court of Roanoke County, State of Virginia in the amount of $75,507.50 (consisting of $50,000 for financial or pecuniary loss; $25,000 for solace; $500 for funeral expenses and $7.50 for medical expenses) in favor of Dudley J. Emick, Jr., as Administrator of the Estate of Jack Wesley Minnich, deceased, and against Sheriff T. J. Cun-diff as Administrator of the Estate of David A. Ashwell, deceased. The judgment reflected damages found by the state court judge, sitting without a jury, to have been incurred in an automobile, accident on May 11, 1973.
The plaintiff, judgment creditor, Em-ick, Jr., Administrator, then brought the present action, in the United States District Court for the Western District of Virginia (Roanoke Division), on the state court judgment to recover the amount due with interest and costs. He sued the defendants-appellants, Dairyland Insurance Co. (Dairyland) and Middlesex Mutual Insurance Co. (Middlesex) on the grounds that Dairyland was the insurance carrier which, under the terms of its policy, had agreed to insure, up to $20,000, any person operating the 1970 Chevrolet automobile owned by one Sandra Wood, the named insured, with her permission; and that Middlesex was the excess insurance carrier in a policy of insurance, covering a 1972 Chevrolet Impala and a 1972 Chevrolet pick-up truck, owned by the named insured, George W. Lawhorn, covering any relative of the named insured, who was a member of his household, while he or she was operating a non-owned vehicle with the permission of its owner.
Emick, Jr., as Administrator, further asserted in connection with his claim against Dairyland that the 1970 Chevrolet owned by Sandra Wood was being operated by David Ashwell, with her permission, at the time and place of the accident on May 11, 1973; and that David Ashwell was a relative and member of George W. Lawhorn’s household at the time of the collision.
. The district court submitted interrogatories to the jury in the form of a special verdict which were designed to resolve these questions. The answers which the jury returned, in effect, found that the plaintiff’s allegations were true.
The two issues now before this court on appeal are: whether there was sufficient evidence to support the jury’s answers to the special verdict interrogatories relating to permission, express or implied, given Ashwell to drive the Wood car, and whether.Middlesex, under the terms of its policy, was required to pay double the limit of bodily injury liability for one insured car because there was coverage for two cars, i. e. the 1972 Chevrolet Impala and the 1972 Chevrolet pick-up truck, and the car actually operated by Ashwell was neither of these, but was instead a non-owned automobile, i. e. the 1970 Chevrolet of Sandra Wood.
With regard to the first issue, the claim of insufficient evidence to support the jury’s answers, we hold that the jury could reasonably have found the facts to be substantially as follows:
David Ashwell lived in Bedford, Virginia, with his step-father, George W. Lawhorn, and Mrs. Lawhorn, who was David’s mother. Also living in the household was Michael Lawhorn, the son of Mr. and Mrs. Lawhorn. Sandra Wood was fairly well acquainted with David and Michael, as her brother was married to Mr. Lawhorn’s daughter. Sandra, David and Michael, on May 11, 1973, through conversations held earlier in the day, arranged to go out together for the evening. She drove her car to the Law-horn house, where she stayed a short while, conversing with her sister-in-law and others. At about 8:00 p. m. the
At the lodge they danced and drank alcoholic beverages. Michael became so intoxicated that he had to be helped to Sandra’s car in which he went into a stuporous sleep. The rest continued their entertainment at the lodge. Some time later an announcement was made that an automobile, having the registration number of Sandra’s car, was blocking another car in the crowded parking lot and the request was made that the owner move it. Sandra, who was sitting down, took her car keys from her bag and started to get up, but David offered to move the car and she gave him the keys. He told Darlene Dooley that he would be back in a minute as he wanted to dance with her again. After a short while she and her sister went out to the parking lot to look for the car but they did not see it and went back into the lodge to dance. Sandra Wood expressed no concern that David had not returned promptly.
David drove the car out of the parking lot and turned south on a four-lane divided highway. He increased the car’s speed to about 85 m. p. h. and passed two crossovers in the median strip where he could have gone over to the north bound lanes. When he was about a half a mile south of the Hollis Moose Lodge, where there was no regular cross-over, he lost control of the car, went over the top of the median divider, and collided with the car in which Mr. and Mrs. Min-nich were driving north on a northbound lane. David Ashwell, Michael Lawhorn and Mrs. Minnich were killed immediately, and Mr. Minnich died a few minutes later.
We hold that there was sufficient evidence under Virginia law to support the jury’s conclusion that there was at least implied permission given by Sandra Wood to David Ashwell to take her car from the parking lot and drive down the four-lane highway at that time to the place of the accident.
This case is in the federal courts on the basis of diversity jurisdiction, 28 U.S.C. § 1332, and Virginia law governs, Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
As required by the Virginia omnibus statute, Dairyland’s and Middle-sex’s insurance policies both provided liability coverage for “the named insured and any other person responsible for the use of or using the motor vehicle . with the consent, express or implied, of the named insured . . . .”
Although in cases involving marked departures from the express authority
The defendants have appealed from the district court’s denial of their motion to set aside the verdict, n. o. v., on the ground that the evidence was insufficient, as a matter of law, to establish that David Ashwell was operating Sandra Wood’s automobile, at the time and place of the accident, with her permission. The trial court properly submitted this factual issue to the jury; and the court’s judgment, based on the special verdict, is affirmed.
We now turn to the second issue before us on appeal which is whether the district court was correct in deciding that Middlesex was required to pay double the $25,000 limit on liability for bodily injury to any one person, or a total of $50,000, under the circumstances of this case. We are of the opinion that the district court was in error in so holding, and we reverse this portion of its judgment.
The district court’s decision rested upon its interpretation of previous Virginia Supreme Court decisions upholding the stacking of liability limits with respect to medical payments coverage and uninsured motorist coverage. See Central Surety and Ins. Corp. v. Elder, 204 Va. 192, 129 S.E.2d 651 (1963); Virginia Farm Bureau Mutual Ins. Co. v. Wolfe, 212 Va. 162, 183 S.E.2d 145 (1971); Lip-scombe v. Security Ins. Co. of Hartford, 213 Va. 81, 189 S.E.2d 320 (1972); Cun
An examination of these decisions reveals that the following criteria have received the most attention:
(1) Whether the policy contained not only a liability clause8 but also a separability clause which required the terms of the policy to be applied separately to each automobile insured under the policy.9
(2) Whether a separate premium was paid for the type of coverage in question (medical payments or uninsured motorist) for each automobile insured under the policy.
An affirmative answer to both questions has been held to create an ambiguity in the insurance policy which must be construed against the insurer and in favor of the insured, American Fidelity Fire Ins. Co. v. Allstate Ins. Co., 212 Va. 302, 184 S.E.2d 11, 13 (1971), thereby bringing about stacking. It is important to understand the exact nature of this ambiguity, however, lest the principle of stacking which flows from it be misapplied.
The reasoning by which an ambiguity is created, and stacking is allowed, runs as follows: if a single automobile insurance policy, insuring two specifically described cars is assumed, it is apparent that the liability clause, on the one hand, relied upon by the insurance company, can be read as establishing the upper limits of the insurance company’s liability, regardless of the number of cars insured under the policy. The separability clause, on the other hand, provides that the terms of the policy shall apply separately to each car, and no exception is made for the limit of liability clause, which is usually included in an automobile insurance policy, though it insures only one car. The policy can therefore be construed to be, in effect, two policies of insurance, with the liability clause applying separately and independently to each car. This view is supported by the fact that separate premiums are charged for the insurance coverage in question [medical payment or uninsured motorist] for each car insured. When an insured pays double premiums, he expects double coverage. Furthermore, there is no question that if separate insurance policies had been written by the insurance company for each car, and separate premiums paid, the insured could recover up to the limits of liability for the insurance coverage in question [medical payment or uninsured motorist] for each car insured. Hence the insurance contract is susceptible to two fair and reasonable constructions, and this ambiguity is resolved in favor of the construction which permits a greater indemnity. See Central Surety and Ins. Corp. v. Elder, supra, 129 S.E.2d at 654-655; Cunningham v. Insurance Co. of North America, supra, 189 S.E.2d at 836-37; Lipscombe v. Security Ins. Co. of Hartford, supra, 189 S.E.2d at 322.
Two crucial links in this chain of reasoning, however, are missing in the instant case. In the first place, there is no proof that a specific premium was assessed by Middlesex for non-owned vehicle liability coverage for each car insured under the policy, as it was for medical payments and uninsured motorist coverages. The relevant and material policy provisions provide:
“DECLARATIONS
Item 3. The insurance afforded is only with respect to such of the following coverages as are indicated by specific premium charges. The limit*1324 of the company’s liability against each such coverage shall be as stated herein, subject to all the terms of this policy having reference thereto.
COVERAGES LIMITS OF LIABILITY PREMIUMS car 1 car 2 A Bodily Injury liability 25 thousand dollars each person 50 thousand dollars each occurrence $18.00 $18.00
“PART I — LIABILITY
Coverage A —Bodily Injury Liability; : To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages, because of:
A. bodily injury, . . . including death resulting therefrom, sustained by any person; arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile. . . ."
The policy is silent as to what portion of each $18.00 premium, if any, was charged for non-owned automobile bodily injury liability coverage. Nor was the factual issue of whether or not the insured had been charged twice for non-owned automobile liability coverage, as was found by the court below, raised in appellee’s complaint or explored by means of testimonial and other eviden-tiary proof at trial.
In the absence of such proof, this court cannot assume, as did the district court,
It is apparent, therefore, that both of these types of insurance coverages focus on the person of the insured, rather than on his liability arising out of the operation of a particular vehicle. Although at times an unstated premise,
By contrast, bodily injury liability coverage is linked to the ownership, maintenance or use of an owned automobile or a non-owned automobile by the insured and others to whom the coverage is extended. Its basic purpose has “always been conceived to be the protection of the policyholder against loss resulting from legal liability caused by his operation of a motor vehicle” and, as such, “pertain[s] fundamentally to the vehicle.” 7 J. Appleman, supra, at 208-09. It is for this reason that courts have universally rejected the contention that separability clauses create an ambiguity with regard to bodily injury liability coverage where more than one automobile is listed under the policy, and one of the listed automobiles is involved in an accident. As the court stated in Pacific In-dem. Co. v. Thompson, 56 Wash.2d 715, 355 P.2d 12 (1960), referring to a typical separability clause:
“that provision merely assures the applicability of the policy to whichever car is involved in an accident, or to all the cars, and does no more.”
See also Basso v. Allstate Ins. Co., 19 Ariz.App. 58, 504 P.2d 1281 (1973); Community Service Ins. Co. v. Price, 41 Mich. App. 604, 200 N.W.2d 450 (1972); Rosar v. General Ins. Co., 41 Wis.2d 95, 163 N.W.2d 129 (1968); Greer v. Associated Indem. Corp., 371 F.2d 29 (5 Cir. 1967); Government Employees Ins. Co. v. Lally, 327 F.2d 568 (4 Cir. 1964).
The extension of this reasoning to non-owned vehicle bodily injury liability coverage follows naturally so long as there is no misapprehension as to the nature of such coverage. Obviously, any one insured can operate but one automobile at a time. Bodily injury liability coverage, with its attendant limits of liability, is therefore designed to attach to whichever automobile an insured happens to be driving, whether that automobile is one of several automobiles listed under the policy or whether it is a non-owned automobile. In the latter case, the non-owned automobile merely substitutes for, or stands in the place of, one of the named insured’s owned and listed automobiles, and the bodily injury liability package, with its per person and per occurrence limits, attaches to this non-owned automobile for as long as the insured is potentially subject to liability arising out of its maintenance or use.
This interpretation seems most likely to comport with the understanding of both the insurance company and the named insured at the time such coverage is purchased. Certainly nothing in Mid-dlesex’s insurance policy bearing upon bodily injury liability conveys or implies a contrary impression. That policy promises to pay all sums which the insured shall become legally obligated to pay as damages because of bodily injury “arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile . . . .” Non-owned automobiles appear to have been added to owned automobiles in the above coverage almost as an afterthought because the word ownership, and in most cases the word maintenance, would not apply to a non-owned automobile. Furthermore, as previously noted, Item 3 of the “Declarations” does not differentiate between owned-automobile bodily injury liability and non-owned-automobile bodily injury liability, and no differentiation is made in the premiums charged.
No court of review in this country has ever adopted the plaintiff-appellee’s theory of double recovery for bodily injury liability coverage, under a policy such as that now before us, simply because the insured was driving a non-owned automobile, thus equating the nature of bodily injury liability coverage with medical payment and uninsured motorist coverages when there is no similarity between them or any undergirding reason or rational basis for doing so.
Because of the foregoing considerations, we conclude that the Supreme Court of Virginia would not require the stacking of the limits of liability for bodily injury under the circumstances of this case. The judgment of the district court as to this issue is reversed.
The remaining issues are not of sufficient merit to call for discussion.
Affirmed in part; reversed in part.
. “Relative” is defined in the policy as “a relative of the named insured who is resident of the same household.” The policy provided,
“PART I — LIABILITY
Persons Insured: The following are insureds under Part I:
(b) with respect to a non-owned automobile,
(1) the named insured,
(2) any relative, but only with respect to a private passenger automobile or trailer, provided his actual operation or (if he is not operating) the other actual use thereof is with the permission, or reasonably believed to be with the permission, of the owner and is within the scope of such permission . . ."
. The jury returned the following special verdict form:
“As to. Dairyland, you will answer the following question:
1. Did David Allen Ashwell have permission, express or implied, to drive the Wood vehicle at the time and place of the accident?
Answer: Yes
As to Middlesex, you will please answer the following questions:
1. Did David Allen Ashwell have permission, express or implied, to drive the Wood*1320 vehicle at the time and place of the accident?
Answer: Yes
2. Was the driver, David Allen Ashwell, a member of the Lawhorn household at the time of the accident? Answer: Yes This 4th day of June, 1974
/s/ Houston M. Becker
Foreman”
. Middlesex’s liability clause provides, in relevant part:
“PART I — LIABILITY
Limits of Liability: The limit of bodily injury liability stated in the declarations as applicable to ‘each person’ is the limit of the company’s liability for all damages, including damages for care and loss of services, arising out of bodily injury sustained by one person as the result of any one occurrence; the limit of such liability stated in the declarations as applicable to ‘each occurrence’ is, subject to the above provision respecting each person, the total limit of the company’s liability for all such damages arising out of bodily injury sustained by two or more persons as the result of any one occurrence. . . ."
. The Middlesex “separability clause” states, in relevant part:
“CONDITIONS
4. Two or More Automobiles — Parts I, II and III: When two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each . . . .”
. The term “consent,” as used in statutory omnibus clauses, has the same meaning as the term “permission” generally used in the case law. See G. Couch, Cyclopedia of Insurance Law § 45.344, at 349 (2d ed. 1964).
. Appellant Middlesex concedes on appeal that if Dairyland is liable as primary insurer by virtue of its policy issued to Sandra Wood, Middlesex is also liable as excess insurer because the pertinent terms of its insurance agreement with Mr. Lawhom are essentially the same.
. Express permission under Virginia law “must be of an affirmative character, directly and distinctly stated, clear and outspoken, and not merely implied or left to inference.” Aet-na Cas. & Sur. Co. v. Anderson, 200 Va. 385, 105 S.E.2d 869, 873 (1958); Hinton v. Indemnity Ins. Co. of North America, 175 Va. 205, 8 S.E.2d 279, 283 (1940).
. See note 3, supra.
. See note 4, supra.
. Moreover, appellee alleged in his brief only that equal premiums were charged for the liability portion of the policy, and offered no proof as to what portion, if any, of the $18 premium charged with respect to each car was for non-owned automobile liability coverage. Middlesex’s brief said no more than to represent that an $18 premium was charged for bodily injury liability on each of the two cars.
. As the district court stated, in footnote 14 of its opinion:
“To the extent that the owner in Mole did not pay an additional premium for non-owned vehicle coverage for an additional insured car, the policy sub judice is distinguishable. A premium of $18.00 was paid for each of the two cars insured. Assuming part of that premium is attributable to non-[owned]-vehicle coverage, the premium on the additional insured cars should be less than $18.00 if an additional premium for non[-owned]-vehicle coverage were not assessed. ” (Emphasis added.)
. Middlesex’s medical payments coverage provides, in relevant part:
“PART II — EXPENSES FOR MEDICAL SERVICES
Coverage C — Medical Payments: To pay all reasonable expenses incurred within one year from the date of the accident for necessary medical . . . services . . . : Division 1. To or for the named insured and each relative who sustains bodily injury, . . including death resulting therefrom, . . . caused by accident,
(a) while occupying the owned automobile,
(b) while occupying a non-owned automobile, but only if such person has, or reasonably believes he has, the permission of the owner to use the automobile and the use is within the scope of such permission, or
(c) through being struck by an automobile or by a trailer of any type; . . . .”
. Middlesex’s uninsured motorists coverage provides in pertinent part:
“PART IV — PROTECTION AGAINST UNINSURED MOTORISTS
Coverage J — Uninsured Motorists (Damages for Bodily Injury): 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, . . including death resulting therefrom, . . sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile.
. Although, as noted by the district court, the Virginia Supreme Court did not place its major emphasis on the type of insurance coverage involved in those medical payments and uninsured motorists stacking cases that came before it, we believe it to be implicit in the
. Although we agree with the court’s holding in Allstate Ins. Co. v. Mole, 414 F.2d 204 (5 Cir. 1969), i. e., that policy limits of non-owned vehicle insurance may not be multiplied by the number of owned vehicles under the policy to increase the insurer’s liability, we necessarily disagree with the following portion of its analysis regarding the nature of non-owned vehicle coverage:
“Non-owned vehicle coverage by definition cannot be derived from the coverage on a particular owned vehicle. It is separate insurance . . .” 414 F.2d at 207.
These statements are both overbroad and unnecessary to the result.
Reference
- Full Case Name
- Dudley J. EMICK, Jr., Administrator of the Estate of Jack Wesley Minnich v. DAIRYLAND INSURANCE COMPANY, a Wisconsin Corporation, Appeal of MIDDLESEX MUTUAL INSURANCE COMPANY, a Massachusetts Corporation Dudley J. EMICK, Jr., Administrator of the Estate of Jack Wesley Minnich v. DAIRYLAND INSURANCE COMPANY, a Wisconsin Company, and Middlesex Mutual Insurance Company, a Massachusetts Corporation
- Cited By
- 2 cases
- Status
- Published