Graham v. Travelers Insurance Co.

BOUDREAU, Justice,

dissenting:

¶ 1 The automobile policy in dispute is comprised of, among other things, liability and UM coverages. Winfred Nimrod Graham (Graham) is covered under the liability portion of the policy by an endorsement that expands the policy definition of who is an insured to include employees conducting company business in their own car. Graham is not covered under the express terms of the UM provisions because they do not provide UM coverage to employees injured while driving a car not owned by the employer. (Here, Graham was conducting company business while driving his own car at the time of the accident.) The first impression question to be decided is whether the Oklahoma Uninsured Motorist Statute, 36 O.S. 2001 § 3636, requires that UM coverage be provided to the same class of persons who are covered for liability under the automobile policy.

¶ 2 The Oklahoma Uninsured Motorist Act (UM statute) provides in pertinent part:

A. No 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 issued, delivered, renewed, or extended in this state with respect to a motor vehicle registered or principally garaged in this state unless the policy includes the coverage described in subsection B of this section.
B. The policy referred to in subsection A of this section shall provide coverage therein or supplemental thereto 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 because of bodily injury, sickness or disease, including death resulting therefrom.

36 O.S. § 3636 (emphasis added). Under Oklahoma law, insurance policies are issued pursuant to statute and the statutory provisions are given force and effect as if written into the policies. Shepard v. Farmers Ins. Co., 1983 OK 103 ¶ 2, 678 P.2d 250, 251. Thus, we must interpret the insurance policy at issue in this case in light of § 3636.

*232¶ 3 The resolution of this case depends upon our interpretation of the statutory-phrase “for the protection of persons insured thereunder.”1 Generally, statutes must be interpreted in accordance with their plain, ordinary meaning according to the import of the language used. In re Certification of Question of State Law, 1977 OK 16, 560 P.2d 195. Nevertheless, courts may adopt a restricted meaning of statutory words where using the literal meaning of the words would lead to an absurd result or thwart the obvious legislative purpose of the statute. State ex rel. DHS v. Weinberger, 741 F.2d 290 (10th Cir.1983), cert, denied, Farrah v. U.S., 466 U.S. 971, 104 S.Ct. 2343, 80 L.Ed.2d 817 (1984).

¶ 4 By its express terms, § 3636 requires that insurance companies issuing policies in Oklahoma must “provide coverage therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles ... ”, (emphasis added). Applying the plain, ordinary meaning of the words used in this statutory phrase, the phrase requires UM coverage to be coextensive with the coverage afforded under the comprehensive liability portion of any given policy. The majority opinion, however, refuses to give the phrase a literal construction even though it makes no finding that using the literal meaning of the words would lead to an absurd result or thwart the obvious legislative purpose of the UM statute.

¶ 5 The purpose behind the UM statute is to place the insured in the same position as if the negligent uninsured motorist had complied with Oklahoma laws concerning financial responsibility. McSorley v. Hertz Corp., 1994 OK 120, 885 P.2d 1343. The UM statute is clearly designed to make UM coverage widely available in automobile policies throughout Oklahoma. Ascribing a literal meaning to the words “persons insured thereunder” requires insurers to extend UM coverage to the same class of persons who are covered for liability under the policy. This interpretation does not lead to an absurd result. Moreover, it not only does not thwart the obvious legislative purpose of the statute, it promotes it.

¶ 6 Our previous uninsured motorist cases did not signal the decision reached today by the majority. In Cothren v. Emcasco Ins. Co., 1976 OK 137, 555 P.2d 1037, we held that attempts to tie UM coverage to the vehicle rather than to the person are unenforceable. In Cothren, the appellant was injured while riding as a passenger on a motorcycle which was struck by an uninsured vehicle. He sought to enforce the UM provisions of his father’s liability policy, but the trial court granted summary judgment in favor of the insurer on the ground that the motorcycle was not listed as an insured vehicle under the father’s policy. Although the motorcycle was not listed as an insured vehicle, the UM provision defined an insured as “the named insured and any designated insured and, where residents of the same household, the relatives of either.” Id. at ¶ 5, 555 P.2d at 1038. Thus, as a relative of the named insured, the appellant was an insured under the UM provision of his father’s policy. We held that the exclusionary language of the policy (which denied the appellant coverage based on the fact that the motorcycle was not a covered auto) was contrary to public policy and therefore void. Id. at 16, 555 P.2d at 1040. In other words, we held in Cothren that once a person is an insured under the UM provisions of an insurance policy, exclusions which attempt to tie coverage to the vehicle rather than to the person are contrary to § 3636 and are unenforceable.

¶ 7 The majority opinion relies on Shepard v. Farmers, 1983 OK 103, 678 P.2d 250, for the principle that parties to an insurance contract are free to agree upon the terms of the contract in a manner which limits or restricts the insurer’s liability as long as the terms are neither unconscionable nor viola-*233tive of the public policy expressed in the UM statute. While Shepard does stand for the proposition that parties to an insurance contract can agree to define who is an insured for purposes of automobile liability and UM coverage, it sheds very little light on the issue of whether our statute requires UM coverage to be coextensive with the coverage afforded under the liability portion of the policy. This is because unlike Graham, the plaintiff in Shepard was not covered as an insured under the liability provision of the insurance policy.

¶ 8 In Shepard we upheld the policy definition of an insured which excluded from coverage a relative of the insured living in the same household if the relative owned his/her own vehicle. In other words, Shepard was excluded as an insured by definition. Nevertheless, the Shepard opinion does include the following language:

Although upholding the exclusionary language might appear to create a situation in which a relative vehicle owner would receive less protection than a relative non-owner merely based upon vehicle ownership, coverage in each case stems not from owning an automobile, but from falling within the definition of an “insured” under any given contract.

Shepard, Id. at 7, 678 P.2d at 252 (emphasis added).

¶ 9 The majority opinion also relies on Moser v. Liberty Mutual Ins. Co., 1986 OK 78, 731 P.2d 406, in which a federal court requested that we determine the applicability of § 3636 to a policy of excess (umbrella) coverage. In Moser, the excess policy involved was separate from the primary policy and, like other excess policies, was designed to cover situations in which corporate liability exceeded the limits of the primary policy. We held that policies providing excess (umbrella) coverage are not required to include UM coverage. Id. at 8, 731 P.2d at 409. Moser is inapposite. The policy in controversy is primary; it is not an excess (umbrella) policy either by its terms or by its “other insurance” clause (which makes it excess under some circumstances).

¶ 10 UM coverage should extend to the same class of persons who are covered under the comprehensive liability portion of any given policy.2 This is in accord with the manner in which the vast majority of other jurisdictions have construed their respective uninsured motorist statutes. See State Farm Auto. Ins. Co. v. Reaves, 292 Ala. 218, 292 So.2d 95 (1974), overruled on other grounds by State Farm Mut. Auto. Ins. Co. v. Wallace, 743 So.2d 448 (Ala.1999); First Sec. Bank v. Does, 297 Ark. 254, 760 S.W.2d 863 (1988); McMichael v. Aetna Ins. Co., 878 P.2d 61 (Colo.App.1994); Homick v. Owners Ins. Co., 511 N.W.2d 370 (Iowa 1993); Kats v. American Family Mut. Ins. Co., 490 N.W.2d 60 (Iowa 1992); Bertini v. State Farm Mut. Auto. Ins., 48 Ill.App.3d 851, 6 Ill.Dec. 435, 362 N.E.2d 1355 (1977); Vernon Fire & Cas. Ins. Co. v. American Underwriters, Inc., 171 Ind.App. 309, 356 N.E.2d 693 (1976); Babin v. State Farm Mut. Auto. Ins. Co., 504 So.2d 558 (La.App.1987); Thomas v. Allstate Ins. Co., 321 So.2d 808 (La.App.1975); Pappas v. Central Nat’l Ins. Group of Omaha, 400 Mich. 475, 255 N.W.2d 629 (1977); Roach v. Central Nat’l Ins. Co., 60 Mich.App. 40, 230 N.W.2d 297 (1975); Georgeson v. Fidelity & Guaranty Ins. Co., 48 F.Supp.2d 1262 (D.Mont.1998); Allied Mut. Ins. Co. v. Action Electric Co., Inc., 256 Neb. 691, 593 N.W.2d 275 (1999); Rau v. Liberty Mut. Ins. Co., 21 Wash.App. 326, 585 P.2d 157 (1978). These courts concluded this is the most sensible reading of the phrase “persons insured thereunder” as provided in their uninsured motorist statutes. As one court explained: “If insurers are allowed to designate a separate and smaller category of persons insured under uninsured motorist coverage, then the broad-based protection which the legislature intended to require could be contractually restricted at the whim *234of insurers.” Kaysen v. Federal Ins. Co., 268 N.W.2d 920, 924-25 (Minn.1978).

. Before today, we have interpreted § 3636 to require only that UM coverage be included in any insurance policy providing for liability coverage, unless UM coverage is rejected in writing. See, e.g., Chambers v. Walker, 1982 OK 128, 653 P.2d 931.

. Further, Graham’s entitlement to UM coverage is limited by Oklahoma law to the statutorily mandated minimum coverage. See O’Neill v. Long, 2002 OK 63, 54 P.3d 109; Moon v. Guarantee Ins. Co., 1988 OK 85, 764 P.2d 1331.