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MARION BLUE OVERSTREET, MAXINE BLUE GONSALES, FAYE BLUE THORNTON, W. M. BLUE AND MICHAEL DEAN BLUE v. ALLSTATE INSURANCE COMPANY

AUGUST 07, 1985

MARION BLUE OVERSTREET, MAXINE BLUE GONSALES, FAYE BLUE THORNTON, W. M. BLUE AND MICHAEL DEAN BLUE
v.
ALLSTATE INSURANCE COMPANY



BEFORE WALKER, PRATHER AND SULLIVAN

SULLIVAN, JUSTICE, FOR THE COURT:

Harmon S. Blue owned three vehicles, all of which were covered by an uninsured motorist insurance policy issued by Allstate Insurance Company. Blue paid separate premiums for each vehicle. In February, 1930, while driving his own vehicle, Blue was struck by an uninsured motorist and he died as a result of the injuries from that accident. Blue is survived by his widow, Lillie Mae Blue, and seven children. None of the children resided in the Blue family home.

Blue's Allstate policy had a $10,000 limitation as to" each person "and a $20,000 limitation as to" each accident ". By aggregating, or" stacking ", these limitations become $30,000" per person ", and $60,000" per accident ".

 Allstate's representative, John McCoy, paid $65,000 to Lillie Mae Blue. All of the" per accident "benefits due from Allstate were paid out, although no estate was opened and McCoy apparently never made a serious effort to determine who the heirs of Harmon Blue might be.

 On April 27, 1982, appellants, five of the seven Blue children, sued Allstate in Jones County Circuit Court, claiming they were entitled to share in the insurance proceeds and further were entitled to punitive damages because Allstate's failure to recognize their legal rights constituted bad faith.

 Appellants' theory of recovery is as follows:

 1. Mississippi Code Annotated 83-11-103 (Supp. 1984), of the Uninsured Motorist Coverage Act, and Mississippi Code Annotated 63-15-43 (Supp. 1984), of the Mississippi Motor Vehicle Safety Responsibility Law, require that benefits owed by Allstate because of Harmon Blue's death be paid to the persons designated by the wrongful death statute, Mississippi Code Annotated 11-7-13 (Supp. 1984); and any insurance policy provision to the contrary is of no effect.

 2. The" facility of payment "clause, in the insurance policy which Allstate relied upon in paying Lillie Mae Blue,

 as well as the policy definition of" insured ", is ambiguous.

 3. Allstate did not act in good faith in attempting to ascertain who should receive the benefits payable as the result of the death of Harmon Blue.

 Allstate's position is that the company paid the maximum benefits under the uninsured motorist contract of the three policies and that by the" facility of payment "clause of the contract they had a right to pay the money to Lillie Mae Blue. Allstate has fulfilled the terms of their contract and contend that, therefore, they have no further liability.

 Allstate moved for a summary judgment, under Rule 56, Miss. Rules of Civil Procedure, claiming there were no genuine issues of material fact and that Allstate was entitled to prevail as a matter of law. After a hearing, summary judgment was granted to Allstate without a written opinion.

 We are faced with only one assignment of error, that being that the trial judge was manifestly in error in sustaining the motion for summary judgment.

 The standard for summary judgment is set forth in Rule 56 of the Mississippi Rules of Civil Procedure which provides that the judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

 Hudson v. Bank of Edwards, 469 So. 2d 1234, 1238 (Miss. 1985).

 When we apply this standard to the record before us, we reach the conclusion that the trial judge was not in error and that he acted properly in ...


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