This is a declaratory judgment suit arising out of a personal injury action in which plaintiff seeks to establish that the tortfeasor was an “uninsured motorist” within thе meaning of plaintiff’s own insurance policy by virtue of the insolvency of the tortfeasor’s liability carrier. The trial court granted summary judgment against plaintiff, from which she appeals.
Plaintiff, Betty Baune, was injured in an automobile collision with one Beverly Fernholz on August 25, 1959. At the time of the аccident, Miss Fernholz carried liability insurance with Marketmen’s Mutual Insurance Company, which became insolvent sometime after the accident. The policy of insurance under which plaintiff claims coverage was written by defendant in these proceedings, Farmers Insuranсe Exchange, and contained the following provision which is here to be construed:
“ ‘Uninsured motor vehicle’ means a motor vehiclе or trailer with respect to the ownership, maintenance or use of which there is no bodily injury liability insurance or bond applicablе at the time of the accident * *
At the outset, it is significant that subsequent to this occurrence the legislature adopted L. 1967, c. 837, § 2, to extend uninsurеd motorists’ coverage to an injured party where the tortfeasor’s liability carrier subsequently becomes insolvent. It provides (Minn. St. 72A.149, subd. 2):
*56 “For the рurpose 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 оf its insured within the limits specified therein because of insolvency.”
However, the statute did not take effect until January 1, 1968. Whether it is to be construed as evidence of an intention by the legislature to create a new right, or as a clarification of existing law, is a subject on which оther courts in substantially identical situations have not agreed. The United States District Court in Federal Ins. Co. v. Speight (E. D. S. C.)
“* * The general rule is that a change in phraseology indicates persuasively, and raises a presumption, that a departure from the old law was intended, and amendments are аccordingly generally construed to effect a change, particularly where the wording of the statute is radically different.”
An Illinois court reached the same result in Illinois Nat. Ins. Co. v. Rose, 93 Ill. App. (2d) 329, 235 N. E. (2d) 675. However, the South Carolina court came to a different conclusion in North River Ins. Co. v. Gibson, 244 S. C. 393,
No decision has been called to our attention in which any court has held that the insolvency of a tortfeasor’s liability carrier subsequent to an accident renders the defendant uninsured if the injured party’s policy
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simply requires that there be no liability insurance applicable at the time of the accident. Thosе courts which have construed such policies have uniformly held that the uninsured motor vehicle provisions do not apply with respect to such policies.
2
The Supreme Court of North Carolina in Hardin v. American Mutual Fire Ins. Co.
In Topolewski v. Detroit Auto. Inter-Ins. Exch.
“The event of the subsequent insolvency of the issuing company does not alter the fact that there was outstanding at the time of the accident such insurance which precludes liability under the Allstate endorsement. This may seem a harsh result, but the fact remains that the endorsement plainly does not cover the actual event, i. e., the subsequent insolvency of Chesapeake. The language of the endorsement being free from doubt, the plaintiffs are bound by its plain meaning.”
The cases which plaintiff cites in support оf her claim have either not involved the question of insolvency, as in Vanguard Ins. Co. v. Polchlopek, 18 N. Y. (2d) 376, 275 N. Y. S. (2d) 515, 222 N. E. (2d) 383, or have construed policies which, unlike the one before us, include a definition of “uninsured,” either by statute or in the policy, to cover the situation where there is insurance but the company “denies coverage.” State Farm Mutual Auto. Ins. Co. v. Brower,
Some courts have refused to hold a motorist uninsured where the policy has defined an uninsurеd motorist as one whose liability carrier denies coverage. Illinois Nat. Ins. Co. v. Rose,
supra;
Seabaugh v. Sisk (Mo. App.)
Accordingly, consistent with what appears to be the unanimity of authority, we hold that the fact of insolvency subsequent to the accident did not render Miss Femholz uninsured within the meaning of Miss Baune’s insurance policy, and the judgment of the district court is therefore affirmed.
Affirmed.