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New York Underwriters Insurance Co. v. Superior Court

Supreme Court of Arizona
Jul 16, 1969
104 Ariz. 544 (Ariz. 1969)

Summary

In New York Underwriters Insurance Company v. Superior Court, 104 Ariz. 544, 456 P.2d 914 (1969), the court held the financial responsibility statutes did not preclude an insured from contracting to exclude his own recovery for personal injuries, in the absence of specific statutory prohibition of such exclusions.

Summary of this case from DeWitt v. Young

Opinion

No. 9613.

July 16, 1969.

Snell Wilmer, by John J. Bouma, Phoenix, for petitioners.

Jennings, Strouss, Salmon Trask, by John S. Hobbs, Phoenix, for respondents.


The New York Underwriters Insurance Company, the Hartford Insurance Group and the Citizens Insurance Company of New Jersey, hereinafter referred to as the petitioners, have petitioned this court for a Writ of Prohibition to prevent the respondents, Superior Court of Arizona and Civil Service Employees Insurance Co., real party in interest therein, from proceeding further in cause No. 194178 in the Superior Court. On the 29th day of April, 1969, this court granted an Alternative Writ of Prohibition.

In 1964, Trujillo, riding as a passenger in his own automobile, was injured by the alleged negligence of his driver, Hickey. Trujillo's insurance carrier, Civil Service Employees Insurance Company, brought this action below seeking a declaratory judgment that the policy of liability insurance issued to Hickey by one of the petitioners, was primary and that the policy issued on the vehicle by Civil Service was not involved.

The Civil Service policy provides that the "policy does not apply to bodily injury to the insured or any member of the family of the insured residing in the same household as the insured."

Petitioners assert that the exclusion is contrary to the statutory Omnibus Clause, held in Jenkins v. Mayflower Insurance Exchange, 93 Ariz. 287, 380 P.2d 145 (1963), to be a part of every motor vehicle liability policy. They further assert that in accordance with that case and the Supreme Court decisions in Dairyland Mutual Insurance Co. v. Andersen, 102 Ariz. 515, 433 P.2d 963 (1967), and Universal Underwriters Insurance Co. v. Dairyland Mutual Ins. Co., 102 Ariz. 518, 433 P.2d 966 (1967), said exclusion is illegal and void.

This court has previously defined the purpose of the Arizona Financial Responsibility Act. In Schecter v. Killingsworth, 93 Ariz. 273, 380 P.2d 136 (1963), we stated:

"The Financial Responsibility Act has for its principal purpose the protection of the public using the highways from financial hardship which may result from the use of automobiles by financially irresponsible persons."

In light of that stated purpose, the question is whether or not the statute is intended to restrict the privilege of an individual to contract with his insurance carrier to exclude his own personal recovery under the policy terms in the event of his own injury. We read nothing in the statute which states such a restriction nor do we find ourselves compelled by public policy to so construe this statute.

In the absence of any legislative mandate to the contrary, the rule is generally well settled that policies containing clauses which specifically exclude from coverage injuries sustained by the named assured, are effective to preclude the company's liability to such named assured. 7 Appleman, Insurance Law and Practice § 4409 p. 377 (1962); Frye v. Theige, 253 Wis. 596, 34 N.W.2d 793, 50 A.L.R.2d 124 (1948); Musselman v. Mutual Auto. Ins. Co., 266 Wis. 387, 63 N.W.2d 691 (1954); Havlik v. Bittner, 272 Wis. 71, 74 N.W.2d 798 (1956); Tenopir v. State Farm Mutual Co., 403 F.2d 533 (9th Cir. 1968). See also Capece v. Allstate Ins. Co., 88 N.J. Super. 535, 212 A.2d 863 (1965). On the other hand in the absence of such an exclusion, the preponderance of the authority allows recovery by the named insured, when injured through the negligence of a person covered by the Omnibus Clause. Seaman v. State Farm Mutual Auto Ins. Co., 15 Ill. App.2d 537, 146 N.E.2d 808 (1958); Howe v. Howe, 87 N.H. 338, 179 A. 362 (1935).

We hold that the exclusion cited above as limited to the named insured himself is not contradictory to the provisions of A.R.S. § 28-1170, and it is not illegal or void.

Alternative writ of prohibition is quashed and the application for a peremptory writ of prohibition is denied.

UDALL, C.J., LOCKWOOD, V.C.J., and STRUCKMEYER and McFARLAND, JJ., concur.


Summaries of

New York Underwriters Insurance Co. v. Superior Court

Supreme Court of Arizona
Jul 16, 1969
104 Ariz. 544 (Ariz. 1969)

In New York Underwriters Insurance Company v. Superior Court, 104 Ariz. 544, 456 P.2d 914 (1969), the court held the financial responsibility statutes did not preclude an insured from contracting to exclude his own recovery for personal injuries, in the absence of specific statutory prohibition of such exclusions.

Summary of this case from DeWitt v. Young

In New York Underwriters Insurance Company v. Superior Court, 104 Ariz. 544, 456 P.2d 914 (1969), the holding was that an insured could contract to restrict coverage so as to exclude his own personal injuries or death, inferring without expressly stating that there was no social objective which compelled a person to protect himself against financial hardship.

Summary of this case from Farmers Insurance Group v. Home Indemnity Co.

In New York Underwriters Insurance Company v. Superior Court, 104 Ariz. 544, 456 P.2d 914 (1969), the Arizona Supreme Court found that the Arizona Financial Responsibility Act does not "restrict the privilege of an individual to contract with his insurance carrier to exclude his own personal recovery under the policy terms in the event of his own injury."

Summary of this case from Schwab v. State Farm Fire Cas. Co.
Case details for

New York Underwriters Insurance Co. v. Superior Court

Case Details

Full title:NEW YORK UNDERWRITERS INSURANCE COMPANY, a corporation; the Hartford…

Court:Supreme Court of Arizona

Date published: Jul 16, 1969

Citations

104 Ariz. 544 (Ariz. 1969)
456 P.2d 914

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