Summary
concluding that, in light of household exclusion provision in automobile insurance policy, the policy did not cover injuries to relatives residing in the same household as the insured
Summary of this case from Rabon v. RabonOpinion
SC 35.
February 1, 1973.
Appeal from the Circuit Court, in Equity, Jefferson County, William C. Barber, J.
London, Yancey, Clark Allen, and Clarence L. McDorman, Jr., Birmingham, for appellant.
The purpose of the exclusion as to the insured and to members of the insured's family residing in the same household is to exempt the insuror from liability to those persons whom the insured on account of close family ties would be apt and be partial in case of injury. Blow v. State Farm Mut. Liability Ins. Co., 284 Ala. 687, 228 So.2d 4; Holloway v. State Farm Mutual, 275 Ala. 41, 151 So.2d 774. A master held to pay damages for an injury inflicted on a third party by the wrong or negligence of his servant has a right of action to recover the amount of such damages from the servant. Huey v. Dykes, 203 Ala. 231, 82 So. 481. The law imputes to the master the act of the servant, and if the act is negligent or wrongful proximately resulting in injuries to a third person, the master is liable. Irrespective of any special immunity resulting from the domestic relation existing between the person injured and the servant who committed the negligent or wrongful act. Mi-Lady Cleaners v. McDaniel, 235 Ala. 469, 179 So. 908. The owner or permissive user of an automobile present therein at the time of an accident caused by its negligent operation, is liable for injuries resulting though he is not personally at the wheel if the car being driven by one not his servant, but is with his permission and in the business of the owner or permissive user or in a joint enterprise of the owner and the driver. Woodson v. Hare, 244 Ala. 301, 13 So.2d 172.
Rives, Peterson, Pettus, Conway Burge, Birmingham, for appellee.
Where insurance policy defines the unqualified word "insured" to include the named insured and any permissive user of the automobile (omnibus insured), the unqualified word "insured" as used in an exclusionary provision includes the named insured and the omnibus insured wherever it appears. Hogg v. State Farm Mut. Auto. Ins. Co., 276 Ala. 366, 162 So.2d 462; Blow v. State Farm Mut. Auto. Ins. Co., 284 Ala. 687, 228 So.2d 4; Michigan Mut. Liability Co. v. Carroll, 271 Ala. 404, 123 So.2d 920. The term "insured" as used in an exclusion provision means both the named insured and a person who has coverage under the omnibus clause, and not solely the person against whom claim is made. Supra. The common law doctrine of parental immunity of a parent from liability in tort for injuries to his minor child is the law of Alabama. Owens v. Auto Mutual Indemnity Co., 235 Ala. 9, 177 So. 133.
At the time of the accident, which is the basis of the proceedings below, the American Fire and Casualty Company, hereinafter referred to as American, had issued to Mrs. Joel T. Blankenship an automobile liability insurance policy covering an automobile owned by Mrs. Blankenship.
At this same time, there was in effect an automobile liability policy issued by State Farm Mutual Automobile Insurance Company to Jack W. Palmer and his wife Beverly Palmer covering a Chevrolet automobile owned by the Palmers.
On 11 June 1968, Mrs. Blankenship was driving the Palmer automobile with Mrs. Palmer's permission. Sandra Blankenship, the young and unemancipated daughter of Mrs. Blankenship, and Mrs. Palmer and Callie Palmer, the young and unemancipated daughter of Mr. and Mrs. Palmer, were riding as passengers.
An accident, involving only the Palmer automobile occurred, and Mrs. Blankenship was killed. Sandra Blankenship, Mrs. Palmer, and Callie Palmer received injuries, apparently of a serious nature.
It was stipulated that "it was the tortious conduct of Mrs. Joel T. Blankenship which caused the accident and the injuries sustained by Sandra Blankenship, Callie Palmer, and Mrs. Jack W. Palmer."
Thereafter American paid to Mrs. Palmer and Mr. Palmer $16,600, and obtained a release from them for all claims they might have against the administrators of the estate of Mrs. Blankenship growing out of the accident.
In a pro ami suit in the Circuit Court of Jefferson County, Bessemer Division, in behalf of Callie Palmer against the administrators of the estate of Mrs. Blankenship, a court approved consent judgment of $500.00 was entered and paid by American for the injuries to Callie Palmer.
Likewise, in a pro ami proceeding a consent judgment in the amount of $18,000.00, approved by the court, was entered in behalf of Sandra Blankenship. This judgment was also paid by American.
It was stipulated that the above mentioned pro ami suits and settlements were made without the consent of State Farm, and were processed by attorneys representing American under the provision in American's policy authorizing American to "make such investigation and settlement of any claim or suit as it deems expedient."
American then filed a declaratory action in which the above facts were in substance set out, State Farm being named as respondent.
The bill prayed that the court, (1) decree whether the policy issued by State Farm afforded primary liability coverage, (2) that rights, duties, and responsibilities of American and of State Farm under their respective policies be declared, and, (3) that State Farm be ordered to pay to American $35,100.00 for the monies paid out in the settlements made by American.
State Farm filed its answer. A copy of the policy issued by it to the Palmers was attached to and made a part of the answer.
A stipulation of facts was entered into and the cause was submitted on the bill, answer, and exhibits, it being agreed that the stipulation of facts should serve as a note of testimony.
The court thereafter found that State Farm "is not liable under any of the claims or alleged causes of action as set forth in the pleadings in this cause and Complainant [American] is without basis for any item of affirmative relief inhering to its benefit and prayed for in the Bill of Complaint * * * "
The Chancellor then ordered and decreed that the cause be dismissed. This appeal followed.
The coverage provisions of the State Farm policy determinative of the points raised in appellant's brief and assignments of error are in pertinent parts as follows:
"To pay in behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of (A) bodily injury sustained by other persons, and (B) property damage * * *" (Emphasis ours.)
Under the definitions applicable to the insuring agreements the "insured" is defined to be:
"(1) the named insured, and
"(2) if the named insured is a person or persons, also includes his or their spouse(s), if a resident of the same household, and
"(3) if resident of the same household, the relative of the first person named in the declarations, or of his spouse, and
"(4) any other person while using the owned automobile, provided the operation and the use of such automobile are with the permission of the named insured or such spouse and are within the scope of such permission * * *"
Under the Exclusion provisions of the policy it is provided that:
"This insurance does not apply under * * *
* * * * * *
"(i) coverage A, to bodily injury to the insured or any member of the family of the insured residing in the same household as the insured * * *"
American's policy with Mrs. Blankenship provides that, in case of a non-owned automobile, coverage "shall be excess insurance over any other valid and collectible insurance." American contends that State Farm's policy does afford "other valid and collectible insurance." We do not agree.
Clearly Jack Palmer and Mrs. Palmer, the named insureds, and Callie Palmer, their daughter, all relatives and residing in the same household, were excluded from coverage under the Exclusion provisions in the State Farm policy.
As to Sandra Blankenship, counsel for appellant seeks to place her within the coverage of the State Farm policy, if we understand counsel's argument, on the theory of respondeat superior. In brief counsel for appellant argues:
"It is therefore clear that Mrs. Palmer's presence in the automobile made her legally liable for the actions of Mrs. Blankenship."
While admitting that there could be no direct suit by Sandra Blankenship against her mother, because of the doctrine of parental immunity (see Owens v. Auto Mutual Indemnity Co., 235 Ala. 9, 177 So. 133), counsel for appellant further states:
"However, Mrs. Blankenship's estate could certainly be held liable for the injuries sustained by Sandra Blankenship on the doctrine of respondeat superior."
It is well settled under the doctrines of our cases that permissive use of an automobile alone does not furnish any basis for liability against the owner. See Thompson v. Curry, 36 Ala. App. 334, 56 So.2d 359; Downes v. Norrell, 261 Ala. 430, 74 So.2d 593, and innumerable authorities cited in the above two cases.
The bill of complaint merely states:
"V. That on the 11th day of June, 1968, Mrs. Joel T. Blankenship, complainant's [American's] insured, was operating the automobile referred to in Paragraph III of this bill with the permission of respondent's [State Farm's] insured, when the said automobile was involved in a one car accident."
The stipulation of facts entered into between the parties states only that:
"The allegations of Paragraph V of the complaint are true and correct."
Thus, under the allegations in the bill, and the stipulation of facts, there is nothing that would remove the point now being considered from the rule enunciated in Thompson v. Curry, supra, and Downes v. Norrell, supra. That is, there are no averments to the effect that the owner of the borrowed automobile was riding therein and directing its operation, or that the driver of the automobile, while driving it with the owner's permission, was driving solely for the benefit of the owner, etc. We cannot supply such facts by speculation, and without such speculation there is nothing on which the doctrine of respondeat superior could be rationally based.
Counsel for appellee has set forth several other reasons and arguments designed to demonstrate the fallacies in the contentions of counsel for appellant which seek to impose liability on Mrs. Palmer, and thus invoke the coverage of the State Farm policy. In several instances, appellee counsel's argument appears meritorious. We see no need to discuss these additional replies to appellant's contentions, however, being clear to the conclusion that what we have written is dispositive of this point.
Affirmed.
MERRILL, MADDOX and McCALL, JJ., concur.
HEFLIN, C. J., concurs in result.