Employers' Fire Insurance v. Baker

Mr. Justice Kelleher, dissenting in part.

Since I did not participate when the court made its ruling in Murray v. Remuck, 108 R.I. 179, 273 A.2d 491 (1971), I can with all *746good grace now take a position contrary to that presently being espoused by my Brother Paolino. The General Assembly’s adoption of our uninsured motorist statute is a legislative response to a growing problem in a mobilized society; that is, the economic havoc caused by the uninsured, negligent, judgment-proof owner or operator of a motor vehicle. General Laws 1956 (1968 Reenactment) §27-7-2.1 is typical of the statutory relief that has been afforded by the states which have enacted similar legislation. In its pertinent portions the Rhode Island statute provides:

“No policy insuring against loss resulting from liability imposed by law * * * shall be delivered or issued for delivery in this state * * * unless coverage is provided therein * * * for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles * * * .” (Emphasis added.)

Our uninsured motorist statute contains no requirement that the insured have any relationship at the time of the mishap with any vehicle he owns or with one that is insured by his insurer. The statute simply states that the insurer must pay once the insured has demonstrated that he has sustained personal injuries which were caused by the negligent operation of a so-called uninsured motor vehicle. This court has said that the Legislature, in enacting this statute, was concerned that a purchaser of an automobile liability policy be given the opportunity to purchase insurance coverage for economic loss resulting from bodily injuries in those instances where both the owner and operator of the responsible vehicle are uninsured. Aldcroft v. Fidelty & Casualty Co., 106 R.I. 311, 259 A.2d 408 (1969). The insured’s status at the time of the injury as passenger, pedestrian, or driver of an insured or uninsured vehicle is totally irrelevant so far as his ability to recover under the statutorily mandated coverage is concerned. The statute in no way relates coverage to. the occupancy of a particular automobile. Indeed, its *747only restrictions are that both the owner and the operator of the negligent vehicle be uninsured and that the insured is legally entitled to recover damages. Thus, it is that §27-7-2.1 affords personal accident protection rather than vehicle-related coverage.

Since the York policy sought to nullify the intended reach of §27-7-2.1, its exclusionary clause cannot be given effect. Murray, in its contractual approach to this issue, is at odds with the other holdings of this court which have unhesitatingly voided contract clauses in uninsured motorist policies on the grounds that their provisions conflicted with the public policy mandated by the Legislature. Poulos v. Aetna Casualty & Surety Co., 119 R.I. 409, 379 A.2d 362 (1977); Pickering v. American Employers Insurance Co., 109 R.I. 143, 282 A.2d 584 (1971); Aldcroft Fidelity & Casualty Co.1

While there may not necessarily be strength in numbers, the views I have just expressed find support in the majority of jurisdictions that have considered the exclusion in question in the light of similar statutory provisions. These jurisdictions have taken the position that uninsured motorist coverage, unlike casualty or collision insurance, was intended to provide a form of limited personal accident insurance protecting the person or persons insured under the policy at all times and without regard to the activity in which they were engaged at the time. Such coverage is no*748where limited in the statute to the use of the insured vehicle and cannot be so restricted by the policy provisions. State Farm Automobile Insurance Co. v. Reaves, 292 Ala. 218, 292 So. 2d 95 (1974); Mullis v. State Farm Mutual Insurance Co., 252 So. 2d 229 (Fla. 1971); Kau v. State Farm Mutual Automobile Insurance Co., 58 Hawaii 49, 564 P.2d 443 (1977); Nygaard v. State Farm Mutual Automobile Insurance Co., 301 Minn. 10, 221 N.W. 2d 151 (1974); Lowery v. State Farm Mutual Automobile Insurance Co., 285 So. 2d 767 (Miss. 1973); Beek v. Ohio Casualty Insurance Co., 73 N.J. 185, 373 A.2d 654 (1977); Chavez v. State Farm Mutual Automobile Insurance Co., 87 N.M. 327, 533 P.2d 100 (1975); Cothren v. Emcasco Insurance Co., 555 P.2d 1037 (Okla. 1976); Touchette v. Northwestern Mutual Insurance Co., 80 Wash. 2d 327, 494 P.2d 479 (1972).

Hanson, Curran, Bowen ir Parks, A. Lauriston Parks, David P. Whitman, for plaintiffs. William G. Gilroy (for Lori E. Baker), John F. Dolan, John W. Kershaw (for York Insurance Company), for defendants.

I am well aware that the position I now espouse may permit a two-car family to have a free ride in that, by paying for uninsured motorist coverage issued under the policy of only one vehicle, recovery may be had for injuries arising from the operation of the other. However, the insured is entitled to obtain the coverage the Legislature has ordered the insurer to provide and for which the insured has paid an extra premium. If the situation to which I refer should be corrected, the remedy lies at the statehouse and not the courthouse.

In Aldcroft v. Fidelity & Cas. Co., 106 R.I. 311, 259 A.2d 408 (1969), and Poulos v. Aetna Cas. & Surety Co., 119 R.I. 409, 379 A.2d 362 (1977), the insurers sought to invoke a limitation of liability proviso which said that the sum due under the uninsured motorist clause could be reduced by the amount of workman’s compensation or similar benefits previously received by the insured. In Aldcroft we said that this proviso could not be used to reduce the $10,000 minimum coverage called for by G.L. 1956 (1968 Reenactment) §27-7-2.1. Poulos had purchased $20,000 worth of coverage. The insurer contended that it could use the limitation so long as the insured received $10,000 worth of coverage. We rejected this view and ruled that the policy limitation could only be employed to the extent that the compensation benefits might represent a double recovery to the insured.