574 So. 2d 754 | Ala. | 1990
This Court's original opinion, dated August 31, 1990, is withdrawn and the following is substituted therefor:
The sons of Mary Hawk, deceased, appeal from adverse judgments in two separate proceedings. In the first proceeding, the sons claimed that the moneys paid to Charles Hawk under uninsured motorist policies are to be distributed in accordance with the Alabama Wrongful Death Statute, Ala. Code 1975, §
Mary Hawk died testate. She left a will devising all of her property to Charles Hawk and naming him executor of her estate. Mr. Hawk was granted letters testamentary on March 2, 1988.
Mary Hawk was an insured under automobile insurance policies issued by State Farm Mutual Automobile Insurance Company and State Farm Fire and Casualty Company. Those policies and their uninsured motorist coverage are set out below:
1. State Farm Mutual Automobile Insurance Policy No. 463-2879-B25-01B listed Charles Hawk as the named insured and provided uninsured motorist benefits for bodily injury in the amount of $100,000 per person or $300,000 per accident. "Insured" under this policy included both Charles Hawk and his spouse at the time of the accident, Mary Hawk.
2. State Farm Mutual Automobile Insurance Policy No. 475-8921-C05-01B listed Charles Hawk as the named insured and provided uninsured motorist benefits for bodily injury of $20,000 per person or $40,000 per accident. "Insured" under this policy included both Charles Hawk and his spouse at the time of the accident, Mary Hawk.
3. State Farm Mutual Automobile Insurance Policy No. 458-2616-C24-01D listed Charles Hawk as the named insured and provided uninsured motorist benefits for bodily injury of $20,000 per person or $40,000 per accident. "Insured" under this policy included both Charles Hawk and his spouse at the time of the accident, Mary Hawk.
4. State Farm Mutual Automobile Insurance Policy No. 489-7576-F05-01 listed Charles Hawk as the named insured and provided uninsured motorist benefits for bodily injury of $100,000 per person or $300,000 per accident. "Insured" under this policy included both Charles Hawk and his spouse at the time of the accident, Mary Hawk.
5. State Farm Fire and Casualty Company Policy No. S57-7091-D27-01A listed Richard Sprouse as the named insured and provided uninsured motorist benefits for bodily injury of $100,000 per person or $300,000 per accident. "Insured" under this policy included Richard Sprouse and such "relatives" as were defined in the policy, including his mother, Mary Hawk.2
Charles Hawk made claims against both State Farm companies for uninsured motorist benefits. State Farm paid him $340,000 in settlement of the claims. This sum represents the combined limits of all of the policies of insurance set out above. Each of these five policies contained the following payment-of-benefits provision within its uninsured motorist coverage sections:
"Payment of Any Amount Due
"We will pay any amount due:
"1. to the insured;
"2. to a parent or guardian if the insured is a minor or an incompetent person;
"3. to the surviving spouse; or
*756"4. at our option, to a person authorized by law to receive such payment."
Alabama Code 1975, §
The question in this case is not whether an uninsured motorist claim is a contract action; rather, the issue is how uninsured or underinsured motorist insurance proceeds are to be distributed when they are being paid as the result of the death of an insured.
The Uninsured Motorist Statute provides that the damages recoverable are those for which the uninsured motorist is legally responsible. Auto-Owners Ins. Co. v. Hudson,
"No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person 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 therein or supplemental thereto, in limits for bodily injury or death set forth in subsection (c) of section
32-7-6 , under provisions approved by the commissioner of insurance for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, that the named insured shall have the right to reject such coverage . . ."
Ala. Code 1975, §
Except for the Wrongful Death Statute, there could be no damages of any kind recovered for wrongful death, because no right to damages because of wrongful death existed under the common law. Breed v. Atlanta, B. C.R.R.,
In Satzinger v. Satzinger,
The court in Satzinger determined that the money received by the mother did not represent damages for injuries or loss she sustained as an insured, but, rather, that the daughter was the true insured. The court reasoned that if the daughter had survived she would have been the one to receive the proceeds. The court also focused on the fact that the mother's receipt of the proceeds was not independent of the wrongful death action because the receipt of the proceeds was the result of a judgment holding that the daughter's death was caused by the negligence of the uninsured motorist. Consequently, the court held that the insurance proceeds were distributable among those entitled to maintain and recover in a wrongful death action. The mother had no individual right to maintain a wrongful death action, because such an action was created by a statute that allowed only the administrator to maintain the action and provided that the recovery would be distributed among those entitled to take the intestate personal property of the decedent.
Like the mother in Satzinger, Mary Hawk, not Charles Hawk, was the true insured under the insurance policies. The only benefits paid by the insurers in this case were paid in lieu of damages in a wrongful death action against the uninsured tort-feasor.4 Although no wrongful death action was brought against the uninsured motorist to determine liability, the uninsured motorist insurance proceeds represent damages that would pass under the Wrongful Death Statute. Additionally, Charles Hawk would not be able to bring an action in his individual capacity under the Wrongful Death Statute, but could sue only in a representative capacity. Ala. Code 1975, §
We find that the only basis for payment under the uninsured motorist policies was the existence of a wrongful death claim held by Mary Hawk's personal representative. Accordingly, the proceeds received under the insurance policies represented damages recoverable under the Wrongful Death Statute. Because we hold that those proceeds should be distributed in accordance with the Wrongful Death Statute, we reverse the trial court's summary judgment and remand the case.
We note that the decision whether to remove a person as an executor of an estate is left to the discretion of the trial court. This Court's review on appeal is limited to determining whether the trial court abused its discretion. Jones v.McGuirt,
89-644 — APPLICATION GRANTED; ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.
89-666 — APPLICATION GRANTED; ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; REMANDED.
JONES, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.
"Insured — means the person or persons covered by the uninsured motor vehicle coverage.
"This is:
"1. the first person named in the declarations;
"2. his or her spouse
"3. their relatives; and
"4. any other person while occupying:. . .
"5. any person entitled to recover damages because of bodily injury to an insured under 1 through 4 above."
"We [the insurer] will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle."
"Deciding Fault and Amount
"Two questions must be decided by agreement between the insured and us [the insurer]:
"1. Is the insured legally entitled to collect damages from the owner or driver of the uninsured motor vehicle; and
"2. If so, in what amount?"