Louis R. BRISTER, Jr., Plaintiff-Appellee,
v.
AMERICAN INDEMNITY COMPANY, Defendant-Appellant.
Court of Appeal of Louisiana, First Circuit.
*336 James H. Drury, New Orleans, for defendant-appellant.
J. Lynn Ponder, Amite, for plaintiff-appellee.
Before SARTAIN, ELLIS and BARNETTE, JJ.
SARTAIN, Judge.
This litigation grows out of a truck-motorcycle accident which occurred on June 11, 1973, at the intersection of Oak and Bay Streets in the City of Amite, Louisiana.
Plaintiff is the owner of thе motorcycle. It was being ridden at the time by his minor son, Kenneth L. Brister.
At the time of the accident appellant had issued one policy to plaintiff. The policy listed two vehicles, a 1966 Chevrolet pickup truck and a 1964 Ford Galaxie automobile. Limits of liability for each vehicle are $10,000/20,000 for bodily injury, $2,000 medical payments, and $5,000/10,000 family protectiоn (Uninsured Motorist).
Judgment was rendered in favor of the plaintiff, for the use and benefit of his minor child, in the amount of $10,000.00. Plaintiff's claims for "stacking" of medical payment benefits, statutory penalties, and attorneys' fees were rejected. It is from this judgment that appellant has appealed. Plaintiff has not appealed nor answered the apрeal, hence the judgment is final as to these latter claims.
The negligence of the uninsured motorist and the extent of young Brister's injuries are conceded. However, aрpellant now asserts the following errors:[1]
I. The trial judge erred in permitting plaintiff to recover under the Uninsured Motorist provision of the policy, thereby failing to give effeсt to the exclusion in the policy for accidents occurring when the insured is operating an owned but non-insured vehicle.
II. The trial judge erred in permitting plaintiff to "stack" the Uninsurеd Motorist coverage limits.
I.
The basis for this assignment of error is that plaintiff was injured while riding a motorcycle which was not listed on his father's policy. The exclusionary clause sоught to be invoked here provides, inter alia,
"a. to bodily injury to an insured while occupying an automobile (other than an insured automobile) owned by the named insured or a rеlative, or through being struck by such an automobile;".
Plaintiff candidly admits that he is urging this court to reconsider our holding in Thomas v. Nelson,
Appellant reasons that our decision in Thomas was "apparently" based on the rationale of Elledge v. Warren,
We do not deem it necessary to comment on the additional authorities cited by appellant. The pertinent issue for resolution of this particular assignment of error is whether plaintiff's motorcycle is an "owned automobile" within the intent of the aforementioned exclusionary сlause.
In Rushing, a motorcycle was not involved. However, we did hold that coverage *337 was extended to plaintiff only when he was occupying an insured vehicle.
While our decision in Thomas was based primarily on the language in Elledge holding the exclusionary provision to be contrary to the statute requiring uninsured motorist protectiоn unless specifically waived, we prefer now to base our decision here on the rationale of the concurring opinion in Elledge written by Judge Hood.
II.
We now turn to the question of whether it is permissible to "stack" uninsured motorist сoverage where there is but one policy which lists two vehicles. As stated above, each vehicle was extended uninsured motorist protection to the limit of $5,000.00 pеr person and $10,000.00 per accident. This same issue was presented in Wilkinson v. Fireman's Fund Insurance Co.,
In Wilkinson, plaintiff's son was fatally injured while riding as a guest passenger in an automobile insurеd by Lumbermen's Mutual Casualty Co. Plaintiff's insurer was Fireman's Fund Insurance Co. The uninsured negligent motorist was Johnny R. Johnson. Lumbermen's and Fireman's Fund had issued single policies to their respective insured. Eаch policy listed three automobiles with uninsured motorist limits of $5,000/10,000. Plaintiff sought $15,000.00 from each of the insurers. The trial judge permitted "stacking" and rendered judgment against each of the insurers in the amount of $15,000.00 for general damages. The district court's decision as to Fireman's Fund was amended on appeal to allow it credit for $3,000.00, but was otherwise affirmed.
In discussing the "stacking" issue with respect to both insurers, the court stated:
"The defendants, however, would have us hold that as long as two or more separate policies on automоbiles owned by the same family are issued, (for which two different premiums are paid) the uninsured motorist coverages can be `stacked'. But, if in turn, an insured-to-be is issued a `family' policy on the same two or more automobiles, (for which two different premiums are also paid) then the uninsured motorist coverages could not be `stacked' and the insured would be limited to the minimal $5,000 (again assuming multiple injuries were not involved). Such a holding would be contrary to the intent of Graham, Deane, and the appellate court cases following them.
Admittedly in Deane, Graham and Crenwelge [v. State Farm Mutual Automobile Ins. Co.,
Writs were applied for and granted to plaintiff. Wilkinson v. Fireman's Fund Insurance Co.,
Appellant cited Barbin v. United States Fidelity & Guaranty Co.,
The applicable sections of L.R.S. 22:1406 read as follows:
"D. (1) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless сoverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators оf uninsured or underinsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, however, that the coverage required under this section shall not be applicable where any insured named in the policy shall reject the coverage or selects lower limits.
(b) Any insurer delivering or issuing an automobile liаbility insurance policy referred to herein, shall also permit the insured, at his request, to increase the coverage applicable to uninsured motor vehicles provided for herein to any amount not in excess of the limits of the automobile liability insurance carried by such insured." (Emphasis added)
Act 137 of 1972 amended subsection D(1), above, and added subsection D(1)(b) above. It is our opinion that Act 137 of 1972 and particularly subsection D(1)(b), did not address itself to the problem of "stacking". The latter subsection simply required that an insurer must offеr its insured uninsured motorist protection up to the amount of the limits of automobile liability carried by such insured. We agree with the view expressed by Judge Fruge in his dissenting opinion in Barbin.
Subsection D(1)(b) would not permit "stacking" to result in coverage in excess of the liability carried on the insured vehicle. This is in accord with the existing jurisprudence because no case has pеrmitted "stacking" in excess of such liability and "stacking" in Barbin was properly denied because Mr. Barbin had only $5,000/10,000 liability insurance coverage.
For these reasons the judgment of the district court is affirmed at appellant's costs.
Affirmed.
NOTES
Notes
[1] Originally appellant contended that the trial judge also erred in not allowing credit for the amount paid under the medical payments provision of the policy.
[2] Writs granted Dec. 20, 1974.