Kennedy v. American Hardware Mutual Ins. Co.

467 P.2d 963 (1970)

Maureen KENNEDY, by and through Her Guardian, Kathryn M. Kennedy, Appellant, v. AMERICAN HARDWARE MUTUAL INSURANCE COMPANY, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted January 7, 1970.

Decided April 15, 1970.

Thomas C. Beck, Salem, argued the cause for appellant. With him on the briefs were Williams, Skopil, Miller & Beck, Salem.

Walter J. Cosgrave, Portland, argued the cause for respondent. With him on the brief were Maguire, Kester & Cosgrave and James H. Gidley, Portland.

SLOAN, Justice.

The plaintiff was an insured of an automobile insurance policy issued by the defendant. Two automobiles were covered under this policy and two premiums were paid for uninsured motorist coverage in the amount of $5,000. While walking across the street, the plaintiff was struck by an uninsured motorist and seriously injured. The issue is whether the plaintiff can recover $5,000 or $10,000. The trial court held she was entitled to $5,000.

These were the same facts as in Castle v. United Pacific Ins. Group, 1968, 252 Or. 44, 448 P.2d 357, except that the plaintiff Castle was driving one of the two automobiles covered in the policy. We held that the plaintiff was only entitled to collect $5,000 and not $5,000 for each vehicle covered. The instant case is more difficult because the plaintiff was not riding in or driving either of the vehicles covered; however, we conclude that the logic of the Castle case is that the insured is only entitled to collect $5,000 regardless of how many vehicles are covered in the policy and, therefore, the trial court in this case was correct.

Morrison Assurance Company, Inc. v. Polak, Florida, 1970, 230 So. 2d 6, resolved a conflict in the decisions of the District Court of Appeal and held in accord with our present holding. That decision was similar to our Castle decision in that the plaintiff was riding in one of the insured vehicles; however, the decision relies upon *964 Ringenberger v. General Accident F. & L. Assur. Corp., Fla.App., 1968, 214 So. 2d 376, which is similar to the instant case in that the plaintiff was injured while in a non-owned vehicle.[1]

Smith v. Pacific Auto. Ins. Co., 1965, 240 Or. 167, 400 P.2d 512, is not contrary to our present holding. The plaintiff there was a named insured under his own policy and an omnibus insured under the owner's policy. The question was whether the "other insurance" clauses in both policies applied so as to make one policy primarily liable. This court held they were repugnant under Lamb-Weston v. Ore. Auto. Ins. Co., 1959, 219 Or. 110, 341 P.2d 110, 346 P.2d 643, 76 A.L.R.2d 485, and the coverages of both policies applied.

Affirmed.

[1] Sturdy v. Allied Mutual Insurance Company, 1960, 203 Kan. 783, 457 P.2d 34, 42, found the Ringenberger reasoning unpersuasive and held contrary to our present holding.