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AETNA CASUALTY AND SURETY COMPANY v. DOROTHY A. BARKER

MAY 16, 1984

AETNA CASUALTY AND SURETY COMPANY
v.
DOROTHY A. BARKER



BEFORE WALKER, ROY NOBLE LEE AND BOWLING

BOWLING, JUSTICE, FOR THE COURT:

This appeal involves the interpretation of uninsured motorist provisions in an automobile liability insurance policy. The primary question is whether the policy provisions conform to the requirements of the uninsured motorist statutes and the resulting interpretation of the policy provisions. A brief statement of the undisputed facts is necessary.

The case was tried without a jury by a judge of the Circuit Court of the First Judicial District of Hinds County. The facts presented revealed that one Jerry W. Bridges owned a 1976 Chevrolet Camaro automobile. Bridges had purchased a policy of liability insurance with appellant, Aetna Casualty and Surety Company, listing the Camaro as the only insured vehicle. Bridges also owned a motorcycle that was not listed on the insurance policy in question and was not insured under any other policy issued by any other company.

 On July 24, 1980, the insured Camaro was inoperable because of a mechanical condition. In order to have transportation, Bridges chose to operate his uninsured motorcycle.

 At the time of the incidents related herein, he was operating the motorcycle and had as a passenger thereon Pamela Burkett, a female who was living with Bridges, but was not his wife or related to him in any manner. The motorcycle, with its two occupants, was involved in a collision with an admitted uninsured motorist. Bridges was injured and Burkett was killed. Admittedly, the collision was caused solely by the negligence of the uninsured motorist.

 Appellant, Aetna, paid full uninsured motorist provision benefits to Bridges under the above described policy. The insurance company refused to pay under the uninsured motorist provision of the policy any money to Burkett's heirs or legal representatives. This suit is by the statutory beneficiary of Pamela Burkett, deceased, for uninsured motorist benefits. The trial judge held that they were entitled to protection and payment under the uninsured motorist provisions of the policy and the applicable statutes and rendered a judgment for appellee. Appellant Aetna contends that under the facts stipulated, Burkett was not covered under the policy's uninsured motorist coverage. We agree with Aetna and reverse and render the cause.

 Both parties rely on the case of Lowery v. State Farm Mutual Automobile Ins. Co., 285 So.2d 767 (Miss. 1974). There the court through Justice Rodgers set out an extensive discussion regarding coverage under the uninsured motorist provisions where the claim arose out of the operation of a vehicle not listed in the policy. In Lowery, the named insured in the liability policy had a minor son living in his household. The son was injured when he was driving a motorcycle, owned by him personally, with the motorcycle not being listed under any insurance policy. As here, the minor was injured admittedly by the negligence of an uninsured motorist. Under the terms of the father's policy insuring the father's personal automobile, the claim of the son for his injuries was excluded. We held that this exclusion did not apply as the statutes [Mississippi Code Annotated, Sections 83-11-101 through 103 (Supp. 1983)], were contrary to the terms of the insurance policy and required coverage for the named insured's son under the uninsured motorist provision, even though the son was operating an uninsured motorcycle owned by him personally.

 Recognizing the difficulty in interpreting the policy provisions in the case sub judice, the primary question raised below and the primary question now before us is whether or not Burkett, at the time she met her death, was

 riding in a" temporary substitute automobile "as authorized under the policy provisions and thereby covered under the terms of Bridges' policy.

 As hereinbefore stated, Bridges was paid. The policy provision" temporary substitute automobile "did not apply to him. He would have been covered under his personal policy had he been standing in the middle of the street and struck by an uninsured motorist's vehicle. The statutes and authorities are clear that there are two separate and distinct types of insureds under uninsured motorist coverage and the terms of these statutes are incorporated in all motor vehicle polices where uninsured motorist coverage is provided. [See Lowery, supra.] The statute, MCA 83-11-103 (b) (Supp. 1983), in defining the term" insured "plainly states as follows:

 (b) The term" insured "shall mean the named insured and, while resident of the same household, the spouse of any such named insured and relatives of either, while in a motor vehicle or otherwise, and any person who uses, with the consent, expressed or implied, of the named insured, the motor vehicle to which the policy applies, and a guest in such motor vehicle to which they policy applies, or the personal representative of any of the above. The definition of the term" insured "given in this section shall apply only to the uninsured motorist portion of the policy. (Emphasis supplied).

 We already have discussed the fact that in Lowery, supra, the named insured's son [standing in the same status as the named insured], was covered under the father's policy, even though at the time of the injury, he was operating a personally owned and uninsured vehicle. In the case at bar, the named insured Bridges was covered under his policy regardless of what vehicle he was operating. Not so as to Mrs. Burkett. She was an" insured "under the second definition set out in the above quoted statute. Admittedly, she was an occupant of an uninsured vehicle and was not a relative living in the same household with Bridges, the named insured under the policy covering the Camaro.

 Again, the question, therefore, is whether or not Mrs. Burkett can be said to have been an" insured "under the terms of Aetna's policy. The decisive question then is whether or not she was a passenger in a" temporary

 substitute automobile "as that term is set out in the policy relating to its named insured Bridges. The applicable sections of the" protection against uninsured motorist "part of Aetna's policy ...


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