Summary
In Travelers Indem. Co. v. Williams, 119 Ga. App. 414, 416 (167 S.E.2d 174), we pointed out that any policy provision which attempts to contravene the clear intent of the Uninsured Motorists' Act is void and not enforceable.
Summary of this case from State Farm c. Ins. Co. v. HarperOpinion
44189.
ARGUED JANUARY 7, 1969.
DECIDED FEBRUARY 24, 1969. REHEARING DENIED MARCH 18, 1969.
Declaratory judgment. Bryan Superior Court. Before Judge Caswell.
Bouhan, Williams Levy, Walter C. Hartridge, II, for appellant.
Sanders, Hester Holley, Otis F. Askin, Jack W. Tarver, Jr., F. C. Drexel, for appellees.
Provisions in insurance policies which conflict with the requirements of the Uninsured Motorist Statute are void.
ARGUED JANUARY 7, 1969 — DECIDED FEBRUARY 24, 1969 — REHEARING DENIED MARCH 18, 1969 — CERT. APPLIED FOR.
Travelers Indemnity Company issued an automobile policy to Harold L. Williams. The automobile policy contained an endorsement providing protection against uninsured motorists.
The appellee, Harold L. Williams, sustained personal injuries while riding as a guest passenger in an automobile owned and operated by James W. Camp which was involved in a collision with an automobile operated by Freddie Lee, an uninsured motorist. At the time of said collision James W. Camp carried an automobile insurance policy issued by the Allstate Insurance Company which contained an uninsured motorists' endorsement. Williams, as a guest passenger in Camp's automobile, was entitled to the protection of the uninsured motorists' endorsement of the policy issued by Allstate Insurance Company to Camp.
Williams filed a claim against Freddie Lee in the Superior Court of Bryan County. Travelers Indemnity Company was named in the action and sought to intervene for the limited purpose of having its name removed from the petition. Thereafter the court ordered Harold L. Williams to strike and physically expunge from the petition all references to the Travelers Indemnity Company. The action brought by Williams is pending. Williams executed a covenant not to sue in favor of Allstate Insurance Company and James W. Camp in consideration of $10,000.
The appellant filed a complaint for declaratory judgment seeking to have the court declare that its uninsured motorists coverage did not operate in favor of Williams in view of the coverage provided by Allstate Insurance Company. Travelers Indemnity Company thereafter moved for summary judgment and Williams also moved for summary judgment. The trial court granted summary judgment in favor of Williams and denied the motion for summary judgment of the Travelers Indemnity Company. In its order, the court recited that it adjudged that Travelers Indemnity Company provided the coverage for the collision sued upon. The court thereafter certified that its order granting summary judgment to appellee Williams and denying appellant's motion for summary judgment should be subject to direct review.
The appellant contends that appellee Williams is not entitled to coverage under its insurance policy due to the fact that he received $10,000 from Allstate Insurance Company as an insured under the uninsured motorist policy issued to James W. Camp. The question then arises whether the appellee Williams, an insured under two separate uninsured motorist policies, may recover on both policies not to exceed his actual damages pursuant to the uninsured motorist statute.
The endorsement to the policy in question contains the following provisions: "7. Other insurance. With respect to bodily injury to an insured while occupying an automobile not owned by the named insured, the insurance under this endorsement shall apply only as excess insurance over any other similar insurance available to such insured and applicable to such automobile as primary insurance and this insurance shall then apply only in the amount by which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance."
If the quoted provision were not in conflict with the Uninsured Motorist Act the appellant's position would be sound. However, Code § 56-407A as amended provides: "No automobile liability policy or motor vehicle liability policy shall be issued . . . unless it contains an endorsement or provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle, within limits exclusive of interests and costs which shall be no less than ten thousand dollars because of bodily injury to or death of one person in any one accident." Ga. L. 1963, p. 588; 1964, p. 306 ( Code Ann. § 56-407.1 (a)). As was stated in State Farm Mut. Auto. Ins. Co. v. Barnard, 115 Ga. App. 857, 858 ( 156 S.E.2d 148), exclusions in uninsured motorist endorsements cannot "circumvent the clear mandate of the Act by withholding the protection required."
In Bryant v. State Farm Mut. Auto. Ins. Co., 205 Va. 897 ( 140 S.E.2d 817), the plaintiff was attempting to recover under the terms of two separate uninsured motorists policies. In that case State Farm filed a plea asserting that there was no coverage afforded the plaintiff because its policy contained an "other insurance" clause almost identical to the one in the case sub judice. In discussing the "other insurance" clause in connection with § 38.1-381 (b) of the Virginia Code, which contains language tantamount to that found in Ga. Code § 56-407A, the Virginia court stated: "Section 38.1-381 (b) . . . commands that no policy of bodily injury liability insurance shall be issued or delivered unless it undertakes to pay the insured `all sums' he is legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle within the limits of the policy. That is plain language. It means that every policy shall so undertake. There is no limitation or qualification of this language anywhere in the statute, nothing at all to indicate that it does not mean what it says. But Part 4, Section 6, of the insurance policy issued by State Farm to Bryant, Jr., undertakes to limit and qualify the provision of the statute. It undertakes to pay the insured not `all the sums which he shall be legally entitled to recover as damages,' as the statute commands, but only such sum as exceeds `any other similar insurance available' to him; i.e., the amount by which the applicable limit of the policy `exceeds the sum of the applicable limits of all such other insurance.' Clearly this provision places a limitation upon the requirement of the statute and conflicts with the plain terms of the statute. It is therefore illegal and of no effect." P. 901.
In construing the same type uninsured motorists statute and insurance policy the Supreme Court of Florida followed the identical course of reasoning in Sellers v. U.S. F. G. Co. (Fla.), 185 So.2d 689, 690, and held that an automobile liability insurance carrier providing coverage against injury by uninsured motorists in accordance with the applicable Florida statutes, after accepting a premium for such coverage, could not deny coverage on the ground that the insured has other similar insurance available to him.
The appellant insists that Code § 56-407A intends to provide a limit of $10,000 for any one person in a collision with an uninsured motorist. With this contention we cannot agree. The insured would be entitled to recover his actual loss that was within the limits of the multiple policies. While the statute does provide a minimum of $10,000 coverage under the uninsured motorists endorsement, it does not limit an insured to recover only that amount when his loss for bodily injury exceeds that sum.
Travelers Ind. Co. v. Wells (4th Cir.) 316 F.2d 770, relied on by the appellant, construing the Virginia uninsured motorists act has not been followed in that state. See Pulley v. Allstate Ins. Co., 242 F. Supp. 330, citing Bryant v. State Farm c. Ins. Co., 205 Va. 897, supra.
The trial court did not err in overruling the appellant's motion for a summary judgment and in sustaining the appellee's motion for summary judgment.
Judgment affirmed. Felton, C. J., and Pannell, J., concur.