Rita S. White, and Allstate Insurance Company, Third-Party v. Nationwide Mutual Insurance Company
361 F.2d 785
3rd Cir.
1966
Check Treatment

*2 Roanoke, Va., Thornton, in this Jurisdiction case grounded upon diversity citizenship. are, therefore, by bound the decisions Sturgill, (Leslie Norton, William J. Supreme of the Court of of Vir Bowen, Greear, Mullins, M. and Mullins ginia. interpretation We find the of the Sturgill, Norton, Va., Winston & intent of the uninsured motorist statute appellee Rita White. S. Bryant contained in Farm State Mut. Before SOBELOFF and J. SPENCER Auto. Ins. 205 Va. 140 S.E.2d BELL, Judges, CRAVEN, Circuit and (1965), controlling. Contrary 817 to be Judge. interpreting to decisions in other states statutes, g., Maryland similar see e. BELL, Judge: J. SPENCER Casualty Howe, v.Co. 106 N.H. 213 interpretation involves case (1965), A.2d and Burchram v. Farm Virginia Uninsured Motorist Exc., ers Ins. Iowa N.W.2d 38.1-381(b-h) (Supp. Va.Code Ann. § purpose of unin 1964), and an insurance provide pro sured motorist statutes by thereunder. Plaintiff was covered up statutory tection minimum injuries motorist endorsement as by financially caused irre quired by (b). subsection sponsible The car in motorists and that statutes riding negligently which she was designed provide were not carry- struck greater nonresident motorist protection with insurance than ing providing insurance cov- would have been in available erage person. By for one terms of sured been the statute a policy containing vehicle is if minimum less Virginia limits. holds limit “[t]he * * * single person. for a recovery any Va.Code Ann. §§ all (c) 46.1-1(8). 88.1-381 Plaintiff policies carrying se- the uninsured judgment against cured a required uninsured motorist 38.1- 381(b) She then in- would be the the in against stituted suits Allstate Insurance sured’s the uninsured Company, Farm, supra insurer of the motorist.” v. State driver, and Nationwide Mutual Insurance at 820. S.E.2d therefore, it, Appellant contends that can exposure Nationwide recovery any the in- language first under the not acceptance of the Ap sured and that Supreme Court of interpreted damaged its $10,000 from Allstate has as the carrier limited peals This misconstrues in that amount. contends: subrogation. the doctrine Code “Section *3 * * * subrogation right be cannot “The policy of no that commands paid, and whole debt is until the enforced shall bodily injury wholly satisfied, the creditor be until under- it unless or delivered be ought and can no interference there to be sums’ he ‘all to takes rights which his or his securities dam- legally as to recover is entitled possibility, might, prejudice even bare ages owner or from the any way or him in in the col embarrass within motor vehicle his claim.” lection of the residue of plain lan- That limits of Furcron, 160 Va. 168 S.E. every pol- Obici v. guage. such means that It 340, 344, (1933); 91 A.L.R. 848 Wil icy undertake. There shall so (rev. liston on Contracts ed. § qualification this lan- limitation or 1936); Stinson, Insurance Co. nothing anywhere statute, guage in the Nation L.Ed. 473 does not mean that it at all to indicate subrogated a wide contends “that claim page says.” at what it upon payment based an insurance need provision on its Nationwide relies not be in full satisfaction of the debt in says: which claim for reim order that the insurer’s payable “Any an insured to paramount be to the bursement insured’s coverage shall of this under terms portion for the claim unsatisfied paid by (1) to all sums be reduced debt.” The learned counsel has injury bodily prop- or such insured for which he has misconceived the case to damage by erty or on behalf referred.1 * * legally person therefor liable right paramount Thus no provision this To the extent that until insured received arises it is void below of his full satisfaction Bryant, contrary the statute. Cf. to Nation- the uninsured driver. Even if however, supra. Nationwide, policy, contends wide the limit of its merely expresses $15,000, prior payment that Allstate to the subrogation rights in the contained have to it could 38.1-381(f), (the and even in the payment Allstate policy provision insured). it would go satisfy fully absence of to would rights by sub payment entitled to these same would The net rogation. provides: $12,000. The statute still question of “(f) paying not reach the Any un- need a claim insurer result provisions whether this is a different der the endorsement in the situa- the statute quired by paragraph of this sec- subrogated rights motorist is un- tion where the tion shall be known but later discovered. § was insured whom such claim say (f). causing that paid against person Suffice possibly damage different circumstance with injury, to the extent death or ap- It is different considerations. payment made was agreed cited, Railway Brighthope that where the insurer had 1. In the case for the entire loss he was sub- Va. 443 Co. v. insured, rogated company insured lumber original though destroyed. claim. $1,500. it was less than the claim was was It A analogous payment is not The claim the owner only part compromised of a loss. $701.50 “fully held satisfied.” The creditor parent if the is later dis- motorist

covered to have been within the original definition then

endorsement was made under a mutual

mistake of fact.

The decision the district court is Judge (dissent-

CRAVEN, District

ing). again perforce attempting we

Once determine state by Virginia’s law in advance decision

highest court. See: Indem Travelers nity Hartford, Wells, Co. of Conn. v. (4th 1963); Note, Cir. 51 Va.

L.Rev.

I do not think v. State Farm

Mutual Automobile Insurance 140 S.E.2d 817 controls only

this case. It teaches that an

person may look to more one Un-

insured Motorist where more than Here,

one is available. there is one confronting present us was not in

Bryant. (quoted in the ma- jority opinion) allows Nationwide sub- rogation “to the extent that I think it means what says, respectfully and I dissent. America,

UNITED STATES of

Anthony DeANGELIS, Appellant. Riper, Newark, Walter D. Van N. J. (Van J., Belmont, Newark, Riper & N. Third Newark, Circuit. Ritger, Jr., J., Frederic N. C. counsel,

Argued May Satz, Decided June Atty., David M. Newark U. S. (Matthew Scola, Atty.,

N. J. J. Asst. U. S. appellee. STALEY, Before Chief SMITH, McLAUGHLIN Judges.