MARY WIDMER V. HARTFORD FIRE INSURANCE COMPANY
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RENDERED:
March 27, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO.
96-CA-2133-MR
MARY WIDMER
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS J. KNOPF, JUDGE
ACTION NO. 95-CI-2062
V.
HARTFORD FIRE INSURANCE COMPANY
APPELLEE
OPINION
AFFIRMING
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BEFORE:
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COMBS, GUIDUGLI, and JOHNSON, Judges.
COMBS, JUDGE:
Mary E. Widmer appeals from an order of the
Jefferson Circuit Court entered on July 1, 1996, holding that she
was not entitled to recover uninsured motorist benefits under an
insurance policy issued by Hartford Fire Insurance Company, the
appellee.
We affirm.
In an exceptionally well-reasoned opinion, the
Jefferson Circuit Court has addressed the issues raised in this
proceeding.
As the circuit court's opinion parallels our views,
we adopt the greater part of it as follows:
On April 16, 1994, Mary E. Widmer (also known
as Sister Dominica) was operating her father's motor
vehicle when it was involved in a collision with a
motor vehicle operated by Gerald David Dixon.
Mr.
Dixon was allegedly under the influence of alcohol and
was uninsured.
Sister Dominica's father, a passenger, was
killed.
Sister Dominica sustained serious injuries,
and she received uninsured motorist ("UM") benefits
from the insurer of her father's motor vehicle.
At the
time of the accident, Ursuline Society and Academy
("Ursuline") provided motor vehicles to its nuns for
their use.
Sister Dominica is an Ursuline nun and had
driven to her father's house in such a vehicle prior to
the accident.
At the time of the accident, Ursuline had a
business auto policy on 100 vehicles, which also
included UM coverage, with Hartford Fire Insurance
Company ("Hartford").
On April 14, 1995, Sister
Dominica brought suit against Hartford seeking UM
benefits under the policy up to the stacked uninsured
policy limits (i.e., 100 million).
On August 28, 1995, Humana Health Plans of
Kentucky, Inc. was given leave to intervene as a
plaintiff to recover the medical expenses it has paid
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on behalf of its insured, Sister Dominica, from
Hartford.
On January 25, 1996, Sister Dominica filed a
motion for summary judgment on the issue of UM coverage
being owed to her by Hartford.
On February 8, 1996,
Hartford filed a cross-motion for summary judgment, and
it filed a response to Sister Dominica's motion on
February 14, 1996.
Sister Dominica filed her response
to Hartford's motion on March 4, 1996.
On April 15,
1996, oral argument was heard on said motions.
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Hartford argues that it does not owe Sister
Dominica UM benefits under the policy it issued to
Ursuline as she was an insured of the second class and
was in a non-owned vehicle, nor is she entitled to
stack the coverage available on each of the vehicles
owned by Ursuline.
Sister Dominica disagrees and
argues that UM coverage is not vehicle oriented but is
personal coverage.
Under the UM coverage in the Schedule of
Coverages of the Hartford policy, it lists "02" as
covered autos and $6,086 as the estimated premium for
the policy period of 7/1/92 through 7/1/93.
The Court
assumes this policy was renewed as the parties agree
that the policy was in effect on April 16, 1994, the
date of the accident.
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In the section of the policy entitled
"Business Auto Coverage Form," it provides that the
words "you" and "your" refer to the named insured shown
in the declarations, which in this case is Ursuline.
In "Section I - Covered Autos" thereof, it explains the
covered auto designation symbols.
The UM coverage's
symbol of "02" designates that "only those autos you
[named insured] own" are covered autos.
Under the section of the policy entitled
"Kentucky Uninsured Motorists Coverage," it provides
that this endorsement modifies insurance provided under
the Business Auto Coverage Form.
The relevant parts of
UM endorsement are listed as follows:
A.
COVERAGE
1. We will pay all sums the "insured" is legally
entitled to recover as compensatory damages from
the owner or driver of an "uninsured motor
vehicle." The damages must result for "bodily
injury" sustained by the "insured" caused by an
"accident."
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B.
WHO IS AN INSURED
1.
2.
3.
You [named insured].
If you are an individual, any "family member."
Anyone else "occupying" a covered "auto."
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C.
EXCLUSIONS
This insurance does not apply to any of the
following: . . .
3. "Bodily injury" sustained by you or any
"family member" while "occupying" or struck by any
vehicle owned by you or any "family member" that
is not a covered "auto."
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F.
ADDITIONAL DEFINITIONS
The following are added to the DEFINITIONS
Section:
1. "Family member" means a person related to you
by blood, marriage or adoption who is a resident
of your household, including a ward or foster
child.
Sister Dominica argues that Exclusion No. 3 does not
apply to her, even though she was operating her
father's vehicle, since "family member" is limited to
residents of your household and her father did not live
with her.
As no exclusions apply, she contends that
she is entitled to UM coverage, which is personal to
her and not vehicle oriented, despite the insurer's
invalid attempt to limit it to Ursuline-owned vehicles
by its "02" designation.
To support her argument, Sister Dominica
cites Hamilton v. Allstate Insurance Company, Ky., 789
S.W.2d 751 (1990, and Chaffin v. Kentucky Farm Bureau
Insurance Companies, Ky., 789 S.W.2d 754 (1990).
Hamilton and Chaffin both deal with anti-stacking
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clauses in an insurance policy.
However, before Sister
Dominica can stack UM coverage, she must first prove
she is entitled to such coverage.
See Windham v.
Cunningham, Ky. App., 902 S.W.2d 838 (1995).
The Court agrees with Sister Dominica that
Kentucky courts have held UM coverage to be personal
and not vehicle oriented.
See State Farm Mutual
Automobile Insurance company v. Mattox, Ky., 862 S.W.2d
325 (1993) (UM coverage is personal to the insured in
that it applies to any motor vehicle injury).
Hartford argues, however, that while UM
coverage is personal to the insured in Kentucky, it
follows only insureds of the first class and not
insureds of the second class, like Sister Dominica.
In Ohio Casualty Insurance Company v.
Stanfield, Ky., 581 S.W.2d 555 (1979), the court
distinguished between two classes of insureds.
The
policy at issue in Stanfield was a fleet policy
insuring 63 vehicles owned by the City of Newport, and
it contained the following provision under its UM
coverage section:
Each of the following is an insured under this
insurance to the extent set forth below:
(a) the named insured and any designated insured
and, while residents of the same household, the
spouse and relative of either;
(b) any other person while occupying an insured
highway vehicle; and
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(c) any person, with respect to damages he is
entitled to recover because of bodily injury to
which this insurance applies sustained by an
insured under (a) or (b) above.
Id. at 557.
The Stanfield court stated that the
definitions set out above, which are essentially the
same as those in Hartford's policy in this case,
created two classes of insured.
It explained the
differences between the two classes as follows:
The first class is composed of the named insured,
the insured who bought and paid for the protection
and who has a statutory right to reject uninsured
motorist coverage, and the members of his family
residing in the same household. The protection
afforded the first class is broad. Insureds of
the first class are protected regardless of their
location or activity from damages caused by injury
inflicted by an uninsured motorist.
As to the second class of insureds, however, "other person"- it is clear that their protection
is confined to damages from injury inflicted by an
uninsured motorist while they are "occupying an
insured highway vehicle." [Citation omitted].
Id. at 557.
The court further stated that said
definitions did not violate the requirements of KRS
304.20-020, Kentucky's uninsured motorists statute.
Id. at 557.
Sister Dominica is not the named insured
under Hartford's business auto policy.
Ursuline is the
named insured as shown by the declaration page of the
policy.
It pays the premiums on the policy,
notwithstanding the fact that Sister Dominica gives any
salary she makes to Ursuline based upon her vow of
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poverty.
As Ursuline is not an individual, it can have
no "family members" under the clear language of the
policy.
Accordingly, Sister Dominica does not fit
within the definitions (Nos. 1 and 2) of first class
insured under the "WHO IS AN INSURED" section of the UM
coverage policy provision.
She is a second class
insured who is entitled to UM coverage only
while
occupying a vehicle owned by Ursuline (Definition
No.3), as UM coverage is only personal to first class
insureds.
As Sister Dominica was injured while
operating her father's vehicle, she is not entitled to
UM coverage as she does not meet the definition of
"insured" under said coverage in the policy.
The issue
of stacking coverage is thus moot.
While this seems like a harsh result,
especially in a case such as this where the person is
seriously injured, other jurisdictions have reached the
same conclusion.
See 7Am.Jr.2d Automobile Insurance ยง
311 (1996 Supp.).
In Meyer v. American Economy Insurance
Company, Or. App., 796 P.2d 1223 (1990), the court held
that UM provision in a policy issued to a corporation,
which provided coverage to the named insured or any
family member, did not provide UM coverage to a
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corporate employee in a non-covered auto, despite the
employee's argument that if the policy was to be read
literally, coverage was a nullity given the fact that
corporation could not suffer bodily injury and could
not have family members.
In Sproles v. Greene, N.C. 407 S.E.2d 497
(1991), the court stated the following:
[T]he fact that the corporation is the named
insured and the only class one insured under the
terms of the UIM portion of the policy does not
mean that the terms of the policy should be
judicially interpreted to mandate that employees
of the corporation should be treated as class one
insureds.
Id. at 501.
See also Pearcy v. Travelers Indemnity
Company, Fla. App., 429 So.2d 1298 (1983), and Buckner
v. Motor Vehicle Accident Indemnification Corporation,
N.Y., 486 N.E.2d 810 (1985).
Therefore,
. . . the motion for summary
judgment brought by Plaintiff, Mary E. Widmer (Sister
Dominica), is DENIED. . . . [T]he motion for summary
judgment brought by Defendant, Hartford Fire Insurance
Company, is GRANTED.
We do not believe that we can add to this very complete
and carefully drafted opinion.
Finding no error, we affirm the
judgment of the Jefferson Circuit Court.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Gregory L. Smith
Louisville, KY
Lynn M. Hartzman
Louisville, KY
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