White v. PattersonWhite v. Patterson
This suit was brought by plaintiffs, Arnold D. White, Jr. and his wife, Mary Ann White, in order to recover damages sustained by them as a result of an automobile accident. In their original petition, plaintiffs sued Mikell I. Patterson, the driver of the automobile which struck their automobile, and Dairyland Insurance Company as Patterson‘s liability insurer. Thereafter, plaintiffs filed an amending and supplemental petition, which named as a defendant Dairyland Insurance Company as Mrs.
Under the present provisions of our uninsured motorist insurance law, where the tortfeasor had liability coverage which was less than the damagеs 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). In Niemann v. Travelers Insurance Company, 368 So.2d 1003 (La.1979), the Supreme Court thoroughly discussed the provisions of
“The U.M. carrier has no obligation to pay that portion of plaintiff‘s damages within the uninsured tortfeasor‘s liability policy limits, but only those damages which exceed the policy limits and which are within the U.M. policy limits.”
Because uninsured motorist coverage is “excess“, plaintiff has a right to receive from defendant only that portion of his damages which exceed the limits of the tortfeasor‘s liability insurance. Thus, while the trial court used the word “credit“, its judgment did nothing more than determine thе amount by which plaintiff‘s total damages exceeded the tortfeasor‘s liability insurance limits. In this case, plaintiff‘s total damages were determined to be $8,000.00. The tortfeasor‘s liability insurance limits for one person were $5,000.00 and, thus, plaintiff is only entitled to receive from defendant $3,000.00, the amount by which his total damages exceed the tortfeasor‘s liability limits.4
Plaintiff nеxt claims that the trial court erred in not awarding him his medical expenses, in the amount of $842.25, under his medical payments coverage. Plaintiff argues that these medical expenses were “above and beyond the general damages” awarded by the jury, or, alternatively, he has a right to receive payment for these expenses under both his U.M. coverage and
Plaintiff introduced and circulated among the jurors for their consideration evidence of his medical expenses. Later the court instructed the jury that the medical expenses were to be taken into consideration in determining plaintiff‘s total damages. The record clearly indicates that the jury included these medical expenses in its estimate of plaintiff‘s total damages.
In support of his claim for a double recovery of these medical expenses, plaintiff cites and relies upon our decision in Bunch v. Frezier, 239 So.2d 680, (La.App. 1st Cir., 1970).
As we noted in Bunch, supra, it is elementary that each insurance contract must be determined in the light of its own particular terms and provisions. The language contained in the policy at issue in Bunch, supra, stated that “the amount paid by virtue of the uninsured motorist clause shall be reduced by all sums paid on account of bodily injury by or on behalf of the owner or operator of the uninsured vehicle.” We therefore found that the payment by defendant under the medical payments clause was not a payment made within the above quoted language and that payments made under the U.M. coverage could not be reduced by the amount paid under the medical payments clause.
The provisions of the U.M. cоverage at issue here, and under which plaintiff was insured, state as follows:
“(D) The company shall not be obligated to pay under this insurance that part of the damages which the insured may be entitled to recover from the owner or operator of an uninsured highway vehicle which represents expenses for medical services paid or рayable under the medical payments coverage of this policy.”
The policy provision at issue in Bunch, supra, is very different than that at issue here, and it is this difference in policy language which dictates an outсome different than our decision in Bunch.
This distinction was, in fact, recognized by us in Bunch at Page 684, where we stated:
“We are cognizant of Morgan v. State Farm Mutual Automobile Insurance Company, La.App., 195 So.2d 648, and Connelley v. Southern Farm Bureau Casualty Co., La.App., 219 So.2d 206, wherein payments under medical pay clauses were held deductible from payments due pursuant to an uninsured motorist clause. Examinatiоn of the cited authorities discloses that they contained language different from that employed in the policy issued by appellant herein.”
The language contained in the policies at issue in Morgan and Connelley is similar to the provisions of the insurance contract at issue here, and dissimilar from those contained in Bunch.
In Taylor v. State Farm Mutual Automobile Insurance Co., 237 So.2d 690 (La.App. 4th Cir., 1970), relied upon by defendant, the court considered a policy provision nearly identical tо that at issue here. In Taylor, the trial court had allowed the U.M. carrier a credit for the amount it had paid under the medical payments coverage, basing this credit on the languаge of the policy. In reversing the trial court and disallowing the credit given to the U.M. carrier, the court of appeal stated that:
“That is not our interpretation of the amendment but rather we consider it to be designed only to protect the insurance company from double exposure for medical payments. Thus it prevents an insured whose medical expenses have been paid under the medical payments coverage from collecting for those medical expenses once again, in the event that a judgment for general damages in his favor and against the insurance company under its uninsured motorist coverage falls below the policy limits of that coverаge. However, in a case such as Mr. Taylor‘s where the award for general damages exceeds the policy limits on uninsured motorist coverage, the insurance cоmpany must pay its insured the full
limits of the policy ... regardless of what it has paid him under the medical payments coverage.”
In Wilkinson v. Fireman‘s Fund Insurance Co., 298 So.2d 915 (La.App. 3rd Cir., 1974), the court considered a similar situation. As in Taylor, supra, plaintiff‘s damages exceeded the U.M. limits and the cоurt therefore refused to allow the U.M. carrier a credit for the amount paid under the medical payments coverage.
We choose to follow the rule in Taylor and Wilkinson, and therefore find that, where plaintiff‘s totаl damages do not exceed the U.M. policy limits, and the language of the policy allows such, as it does here, the U.M. carrier is entitled to a credit for any amount which it has paid plaintiff under the medical payments coverage, or, in the event that no payment has been made under the medical payments coverage, the U.M. carrier is not obligated to make a separate payment under this coverage where these damages are included in the award made under the U.M. coverage.
Because plaintiff‘s total damages did not exceed defendant‘s U.M. policy limits, which were in the amount of $10,000.00, we find that no payment under the medical payments coverage was due to plaintiff from defendant.
For the foregoing reasons, the judgment of the trial court is affirmed. All costs on appeal are to be paid by plaintiff-appellаnt, Arnold D. White, Jr.
AFFIRMED.