460 So. 2d 709 | La. Ct. App. | 1984
Lead Opinion
This is an appeal by defendant, Allstate Insurance Company, from a judgment ordering it to pay $12,000 under its uninsured motorist coverage of plaintiff, Earl Bryant. Allstate argues that Gulf States Utilities, the employer of the tort-feasor, is able to pay the amount of the liability of the tort-feasor which his insurance does not cover, so the tort-feasor is not underinsured.
Plaintiff, Earl Bryant, was stopped at a stop light when his truck was struck from the rear by Brenda Ardoin, an on-duty employee of Gulf States Utilities (GSU), driving her personal vehicle. She in turn was struck from the rear by a car driven by Deborah Fowlkes. Bryant filed suit against GSU, State Farm Mutual Automobile Insurance Agency (Ardoin’s liability insurer), Commercial Union Insurance Co. (liability insurer of the car driven by Fowlkes), and Allstate Insurance Company (his own uninsured motorist insurer). Allstate did not sue anyone or file a third party demand against any party.
The jury found Ardoin 100% at fault in causing Bryant’s injuries. They found Bryant entitled to $31,000.
Ardoin had liability insurance in the amount of $10,000. Bryant had uninsured motorist coverage for $10,000 and $2,000 medical payments coverage. The trial judge apportioned the jury award so that State Farm must pay $10,000, Allstate must pay $12,000, and GSU, the tort-fea-sor’s employer, must pay $9,000.
Allstate appeals, contending that the plaintiff may not recover from his own uninsured motorist insurer since GSU, a defendant, was vicariously liable for the tort and was self-insured for an amount sufficient to cover the judgment.
GSU has stated that it is self-insured for up to $250,000. This is not insurance on Ardoin’s vehicle. Uninsured motorist insurance is “for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underin-sured motor vehicles." LSA-R.S. 22:1406D(l)(a). Ardoin’s vehicle was underinsured since the policy covering it had only $10,000 coverage for liability and the judgment was for $31,000. The uninsured motorist carrier is required to pay since the vehicle was underinsured.
The fact that GSU is able to pay the entire judgment is irrelevant to uninsured motorist coverage. The liability of the uninsured motorist carrier arises out of its contract with the insured. The wealth or poverty of the tort-feasor, or those responsible for his acts, does not affect the liability of the uninsured motorist insurer. It is liable only if the tort-feasor is uninsured or underinsured.
Allstate cites Jordan v. Honea, 407 So.2d 503 (La.App. 1st Cir.1981), writ denied, 409 So.2d 654 (La.1982). In that case, plaintiff was a passenger in an automobile which was owned by Browning-Ferris Industries, Inc. It was struck by an uninsured motorist. Plaintiff contended that since Browning-Ferris was a certified self-insured under LSA-R.S. 32:1042, it was statutorily required by LSA-R.S. 22:1406.D to afford uninsured motorist protection on all of its vehicles. The court held that
The judgment of the trial court is affirmed. Costs are assessed to Allstate Insurance Company.
AFFIRMED.
Dissenting Opinion
dissenting.
I respectfully disagree with my learned brothers’ opinion that the trial court was not clearly wrong in casting Allstate in judgment for any portion of plaintiff’s damages. The tort-feasor, Ms. Ardoin, was not an underinsured motorist. There is no dispute that she was acting in the course and scope of her employment at the time of the accident and that her employer, Gulf States Utilities, a co-defendant, was self-insured for an amount up to $250,000 limits of liability with excess insurance provided over and above that amount.
“Under the present provisions of our uninsured motorist insurance law, where the tortfeasor had liability coverage which was less than the damages suffered by the innocent party, the latter’s U.M. coverage becomes ‘excess’ insurance. Whitten v. Empire Fire and Marine Insurance Company, 353 So.2d 1071 (La.App. 2nd Cir., 1977).” White v. Patterson, 409 So.2d 290 (La.App. 1 Cir. 1982), writ denied, 412 So.2d 1110 (La.1982).
“The U.M. carrier has no obligation to pay that portion of plaintiff’s damages within the [underinsured]* tortfeasor’s liability policy limits, but only those damages which exceed the policy limits and which are within the U.M. policy limits.” White at page 292.
I am of the opinion that the majority fell into error by attempting to distinguish between an “insured” and a “self-insured” tort-feasor. Insofar as the facts, circumstances, and resolution of this case are concerned, I perceive no difference whatsoever between these two terms. Gulf States Utilities, the employer of the tort-feasor, and who is vicariously liable for the tort committed by its employee, can in no sense of the word be said to be uninsured when there is no dispute that it was self-insured for $250,000. How can it be said that there was no other “insurance” available to the plaintiff, other than his own U.M. insurer, Allstate.
By casting Allstate in judgment before Gulf States, the majority makes Gulf States the excess insurer, rather than Allstate. In my opinion, we should reverse the trial court judgment insofar as it holds Allstate liable, and render judgment in favor of plaintiff, against Brenda Ardoin; her insurer, State Farm; and Gulf States Utilities, jointly, severally, and in solido, for the amount of $31,000; and further, that plaintiff’s claim against Allstate, his U.M. carrier, should be dismissed.
The opinion used the word "uninsured” when the correct term should be “underinsured”, or better yet, neither term needed to be used.
