Maxine McCLURE, now known as Maxine Greenhalgh, Administrator of the Estate of Gale McClure, Deceased, Appellant, v. EMPLOYERS MUTUAL CASUALTY COMPANY and Motor Club of Iowa Insurance Company, Appellees.
No. 2-56962.
Supreme Court of Iowa.
Jan. 21, 1976.
238 N.W.2d 321
The foregoing circumstances fit within this court‘s definition of emergency which has been “* * * variously defined as (1) an unforeseen combination of circumstances which calls for immediate action; (2) a perplexing contingency or complication of circumstances; (3) a sudden or unexpected occasion for action; exigency; pressing necessity. * * * [citing authorities].” Young v. Hendricks, 226 Iowa 211, 215, 283 N.W. 895, 898. See also Oakes v. Peter Pan Bakers, Inc., 258 Iowa 447, 458, 138 N.W.2d 93, 100, 10 A.L.R.3d 247, 256 and Schmitt v. Jenkins Truck Lines, Inc., 170 N.W.2d 632, 644, 46 A.L.R.3d 636 (Iowa 1969).
“* * * [T]o be available as a legal excuse an emergency must not be of the driver‘s own making in whole or in part. * * * [citing authorities].” Erickson v. Thompson, 257 Iowa 781, 789, 135 N.W.2d 107, 112. See also Oakes v. Peter Pan Bakers, Inc., 258 Iowa at 457-458, 138 N.W.2d at 100 and Yost v. Miner, 163 N.W.2d 557, 563 (Iowa 1968).
There is substantial evidence from which the jury could have found defendant driver‘s violation of
At the outset is the rule that it is not a necessity the doctrine of legal excuse be pleaded before it may be instructed upon. Schmitt v. Jenkins Truck Lines, Inc., 170 N.W.2d at 643; Dickman v. Truck Transport, Inc., 224 N.W.2d 459, 466 (Iowa 1974).
“* * * [T]he nature and extent of an emergency is usually a fact question and if the party urging the existence of ‘sudden emergency’ sustains his contention by substantial evidence that such an emergency had developed * * * the jury should be instructed thereon. * * * [citing authorities].” Rice v. McDonald, 258 Iowa 372, 380, 138 N.W.2d 889, 894; Yost v. Miner, 163 N.W.2d at 562-563. See also Bangs v. Keifer, 174 N.W.2d 372, 376 (Iowa 1970)—“Whether one has established a legal excuse is usually, but not invariably, a jury question.”
However, in our opinion plaintiffs failed to generate a jury question on their contention defendant‘s excessive speed created such an emergency as would constitute a legal excuse of Mr. Golden‘s violation of the several statutory rules of the road asserted in defendant‘s counterclaim.
The trial court did not commit reversible error in giving instruction 23.
The case is therefore—Affirmed.
Bradshaw, Fowler, Proctor & Fairgrave, by William F. Fanter, Des Moines, for appellee Employers Mut. Cas. Co.
Joseph A. Billings, Des Moines, for appellee Motor Club of Iowa Ins. Co.
UHLENHOPP, Justice.
This case involves “stacking” of insurance policies, among other issues.
Gale McClure met death in a collision of a motor vehicle in which he was riding and a motor vehicle operated by a negligent uninsured motorist. McClure‘s dependent widow as such received workmen‘s compensation benefits of $10,094.17. The probate court appointed the widow as administrator of McClure‘s estate. In a separate action by the administrator against the uninsured motorist, the district court adjudged the damages to McClure‘s estate resulting from his death to be $30,000. The administrator then brought the present action to recover uninsured motorist insurance.
Defendant Employers Mutual Casualty Company insured the motor vehicle in which McClure was riding. The City of Creston, Iowa, owned the vehicle and is the named insured. McClure is an insured under that policy, which provides uninsured motorist coverage up to $10,000 for each person and up to $20,000 for each accident. In addition, McClure is a named insured under a policy on his own car. Defendant Motor Club of Iowa Insurance Company issued that policy, which covered McClure while riding in other motor vehicles and provided similar $10,000–$20,000 uninsured motorist coverage. The parties raise no issue about the approval of these policies by the Iowa Insurance Commissioner.
The administrator sued each insurer for $10,000, for a total of $20,000. The trial court held for the insurers and dismissed the petition. The administrator appealed.
The word and figure “Part” or “Part IV” in the policies means the policy part relating to uninsured motorist insurance, and the words “bodily injury” include death.
Employers Mutual‘s policy contains an “other insurance” clause which states:
Other Insurance. With respect to bodily injury to an insured while occupying an automobile not owned by the named insured, the insurance under Part IV 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.
Except as provided in the foregoing paragraph, if the insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and
the company shall not be liable for a greater proportion of any loss to which this Coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.
Motor Club‘s policy also contains an other insurance clause. This clause states:
Other Insurance. With respect to bodily injury to an insured while occupying an automobile not owned by the named insured the insurance hereunder shall apply only as excess insurance over any other similar insurance available to such occupant, and this insurance shall then apply only in the amount by which the applicable limit of liability of this Part exceeds the sum of the applicable limits of liability of all such other insurance.
With respect to bodily injury to an insured while occupying or through being struck by an uninsured automobile, if such insured is a named insured under other similar insurance available to him, then the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the company shall not be liable under this Part for a greater proportion of the applicable limit of liability of this Part than such limit bears to the sum of the applicable limits of liability of this insurance and such other insurance.
Subject to the foregoing paragraphs, if the insured has other similar insurance available to him against a loss covered by this Part, the company shall not be liable under this Part for a greater proportion of such loss than the applicable limit of liability hereunder bears to the total applicable limits of liability of all valid and collectible insurance against such loss.
In addition, Employers Mutual‘s policy contains a workmen‘s compensation clause:
Any amount payable under the terms of this Part because of bodily injury sustained in an accident by a person who is an insured under this Part shall be reduced by . . . the amount paid and the present value of all amounts payable on account of such bodily injury under any workmen‘s compensation law, disability benefits law or any similar law.
Motor Club‘s policy contains a similar though not identical workmen‘s compensation clause, but we need not set it out.
The appeal presents two main questions: (1) Is the administrator entitled to recover at most $10,000 or $20,000 of uninsured motorist insurance? and (2) Is the workmen‘s compensation of $10,094.17 to be deducted from such $10,000 or $20,000? The first question involves the other insurance clauses in the two policies, while the second question involves Employers Mutual‘s workmen‘s compensation clause.
I. The “Other Insurance” Clauses. The effect of the pertinent paragraph of each of the other insurance clauses before us is to restrict the administrator to a maximum recovery of $10,000 of uninsured motorist insurance, provided that one or both of those pertinent paragraphs are valid and applicable. The pertinent paragraphs, as we shall see, are the second paragraph of Employers Mutual‘s other insurance clause and the first paragraph of Motor Club‘s other insurance clause. We turn first to the validity of the other insurance clauses.
A. In common with a number of states, Iowa has a statute requiring motor vehicle liability insurance policies to contain uninsured motorist coverage unless expressly rejected by the named insured,
No automobile liability or motor vehicle liability insurance policy insuring against liability for bodily injury or death arising out of the ownership, maintenance, or use of a 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 coverage is provided in such policy or supplemental thereto, for the protection of persons insured under such policy who are legally entitled to recover damages
from the owner or operator of an uninsured motor vehicle or a hit-and-run motor vehicle because of bodily injury, sickness, or disease, including death resulting therefrom, caused by accident and arising out of the ownership, maintenance, or use of such uninsured motor vehicle, or arising out of physical contact of such hit-and-run motor vehicle with the person insured or with a motor vehicle which the person insured is occupying at the time of the accident. Such coverage shall include limits for bodily injury or death at least equal to those stated in subsection 10 of section 321A.1 of the Code [“$10,000–$20,000” coverage]. The form and provisions of such coverage shall be examined and approved by the commissioner of insurance. However, the named insured shall have the right to reject such coverage by written rejections signed by the named insured. If such rejection is made on a form or document furnished by an insurance company or insurance agent, it shall be on a separate sheet of paper which contains only such rejection and information directly related thereto. Such coverage need not be provided in or supplemental to a renewal policy where the named insured has rejected such coverage in connection with a policy previously issued to him by the same insurer.
See Holland v. Hawkeye Security Ins. Co., 230 N.W.2d 517 (Iowa); Langstraat v. Midwest Mut. Ins. Co., 217 N.W.2d 570 (Iowa); Benzer v. Iowa Mut. Tornado Ins. Assn., 216 N.W.2d 385 (Iowa); Rodman v. State Farm Mut. Auto. Ins. Co., 208 N.W.2d 903 (Iowa); Western Cas. & Sur. Co. v. General Cas. Co. of Wis., 200 N.W.2d 892 (Iowa); Burcham v. Farmers Ins. Exch., 255 Iowa 69, 121 N.W.2d 500; Simpson v. State Farm Mut. Auto. Ins. Co., 318 F.Supp. 1152 (S.D.Ind.) (tracing development of Iowa law on this subject); Neighbor, Pyramiding Uninsured Motorist Coverage—Has Iowa Joined the Majority? 23 Drake L.Rev. 746.
A few states have enacted additional provisions on this subject, authorizing policy clauses which eliminate duplication of insurance or benefits in various ways: e. g.,
Nothing contained in this chapter shall be construed as requiring forms of coverage provided pursuant hereto, whether alone or in combination with similar coverage afforded under other automobile liability or motor vehicle liability policies, to afford limits in excess of those that would be afforded had the insured thereunder been involved in an accident with a motorist who was insured under a policy of liability insurance with the minimum limits for bodily injury or death prescribed in subsection 10 of section 321A.1 of the Code [$10,000–$20,000].
The second sentence states:
Such forms of coverage may include terms, exclusions, limitations, conditions, and offsets which are designed to avoid duplication of insurance or other benefits.
Under statutes like our first section,
Neither of the foregoing lines of cases involves statutes like our second provision,
Had the uninsured motorist here actually been insured in the minimum amount required by
The second sentence of
The Tennessee statute corresponding to
The other insurance clauses before us do not purport to reduce the uninsured motorist insurance below the statutory minimum of $10,000 for each person and $20,000 for each accident. We hold that they are valid under
B. The second question under the other insurance clauses is whether the pertinent paragraphs of one or both of them apply in the present circumstances so as to restrict the administrator‘s maximum recovery to $10,000.
Employers Mutual‘s other insurance clause consists of two paragraphs. The first one does not apply here by virtue of its language. First, it applies when the injured person was riding in an automobile “not owned by the named insured,” whereas McClure was riding in an automobile owned by the named insured (Creston). Second, the paragraph applies when other insurance is applicable as “primary insurance.” The authorities are clear that McClure‘s policy on his own car, which was not involved in the accident, would not be “primary” insurance. Jones v. Morrison, 284 F.Supp. 1016 (W.D.Ark.); Chicago Ins. Co. v. American Southern Ins. Co., 115 Ga.App. 799, 156 S.E.2d 143; Whitmire v. Nationwide Mut. Ins. Co., 254 S.C. 184, 174 S.E.2d 391; 16 Couch, Insurance 2d (1966) § 62:60 at 508-509.
The second paragraph of Employers Mutual‘s other insurance clause makes that insurer‘s insurance “pro rata” insurance. That paragraph begins, “Except as provided in the foregoing paragraph. . . .” We have seen that the “foregoing paragraph” is inapplicable. The second paragraph then makes its applicability dependent on the presence of “other similar insurance available to [the insured] and applicable to the accident“. The question, therefore, is whether Motor Club‘s insurance is “available” and “applicable” so as to render Employers Mutual‘s second paragraph operative. We will take up that question after considering Motor Club‘s other insurance clause.
We approach the three paragraphs in Motor Club‘s clause in reverse order. The third paragraph begins, “Subject to the foregoing paragraphs. . . .” As we shall see, the first paragraph governs; hence the third paragraph does not apply. The second paragraph applies when the injured person is a “named insured” under other similar insurance, but McClure does not fit this description. Hence the second paragraph is inapplicable.
The first paragraph of Motor Club‘s other insurance clause requires that the injured person occupy an automobile not owned by the named insured (McClure). This requirement was met; McClure occupied an automobile owned by Creston. The paragraph then makes Motor Club‘s insurance “excess” insurance over “any other similar insurance available to [the insured]“. To determine whether this paragraph comes into operation, therefore, we must know whether Employers Mutual‘s insurance is “available.”
We thus have a situation in which a pro rata stipulation and an excess stipulation collide. The rule in Iowa and in most
The result is that Motor Club‘s insurance is not available and applicable insurance as required by the second paragraph of Employers Mutual‘s other insurance clause in order to make that paragraph apply. That paragraph is therefore inapplicable. But Employers Mutual‘s insurance is available insurance within the first paragraph of Motor Club‘s other insurance clause. That paragraph is therefore applicable, and it restricts the administrator‘s maximum recovery to $10,000.
We thus hold that the administrator‘s maximum recovery in any case is $10,000—plus interest and costs. We also hold as a concomitant that by virtue of Motor Club‘s superior excess stipulation, Employers Mutual is solely liable to the administrator for any amount due and that Motor Club and its policy are out of the case.
II. The Workmen‘s Compensation Clause. We proceed to Employers Mutual‘s workmen‘s compensation clause. To determine whether the workmen‘s compensation of $10,094.17 is deductible from Employers Mutual‘s uninsured motorist insurance, we must consider two phrases in the second sentence of
We take up the two phrases in reverse order. Does workmen‘s compensation constitute “insurance or other benefits“?
A. On the question of the deductibility of workmen‘s compensation generally, the courts are divided. In considering statutes like
Employers Mutual contends, of course, that the phrase “of insurance or other benefits” in the second sentence of
This specific question was before the Tennessee Supreme Court in Terry v. Aetna Casualty & Surety Co., 510 S.W.2d 509. Vernon Lee Terry died in a motor vehicle collision with an uninsured motorist. Workmen‘s compensation of $10,080.26 was paid Terry‘s widow on account of his death.
It results, and we so hold, by enactment of
T.C.A. § 56-1152 [our § 516A.2] as a section of our uninsured motorist statutes, it is the legislative purpose to provide an uninsured motorist a right of recovery under the uninsured motorist provisions of his policy only up to the statutory required minimum (T.C.A. § 56-1148) [our § 321A.1(10) for $10,000–$20,000], and provisions in such policies, approved by the Commissioner of Insurance, operating to reduce such coverage where other coverage or benefits are available to the insured arising from accident causing the loss, are valid if such provisions do not operate to deny payments to an insured of less than the statutory minimum.
Following Terry, we hold that the words “insurance or other benefits” in the second sentence of
B. Then the question is whether the facts of the present case bring it within the “duplication” phrase of the second sentence of
In Terry the workmen‘s compensation and uninsured motorist insurance were each payable under Tennessee law to the identical person, the widow as such; hence duplication of benefits existed. Here however the workmen‘s compensation was payable to the dependent widow under
Here the insured‘s administrator who seeks uninsured motorist insurance has received no workmen‘s compensation; no “duplication” of insurance or benefits exists. Had the workmen‘s compensation of $10,
We return the case to district court for entry of judgment in the administrator‘s favor against Employers Mutual for $10,000, interest, and costs.
Costs in this court are taxed to Employers Mutual.
Affirmed in part, reversed in part, and remanded.
All Justices concur except McCORMICK, MASON and HARRIS, JJ., who concur specially, and REYNOLDSON, J., who takes no part.
McCORMICK, Justice (concurring specially).
I concur in the result and all but division IIA of the opinion. The implication of division II of the opinion is that workmen‘s compensation would have been deductible from the uninsured motorist coverage if the two coverages had been payable to the same person or entity. I disagree.
First, I do not believe a duplication of benefits would exist even if the coverages had been payable to the same person or entity. In Benzer v. Iowa Mutual Ins. Ass‘n, 216 N.W.2d 385, 387 (Iowa 1974), we said
Second, I do not think the terms “insurance or other benefits” in
Unlike the majority, I find the Tennessee case, Terry v. Aetna Casualty & Surety Co., 510 S.W.2d 509 (Tenn.1974), unpersuasive and would not follow it.
HARRIS and MASON, JJ., join this special concurrence.