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MISSISSIPPI FARM BUREAU MUTUAL INSURANCE COMPANY v. JOHN ALAN GARRETT

APRIL 30, 1986

MISSISSIPPI FARM BUREAU MUTUAL INSURANCE COMPANY
v.
JOHN ALAN GARRETT



BEFORE WALKER, P.J.; ROBERTSON AND ANDERSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

At the outset this appeal asks that we decide to what extent an injured guest passenger in an automobile negligently struck by an uninsured motorist may settle with his host driver's separate uninsured motorist insurer without impairing his rights against his own uninsured motorist coverage. For the reasons explained below, we hold, as a construction of the insured injured guest passenger's own UM policy, that he may recover via settlement or otherwise all that is reasonably available from his host driver's separate UM coverage and then resort to his own UM coverage to the extent of his damages or the limits of liability of that policy, whichever is first reached.

 Beyond this we are presented an evidentiary question: is a chiropractor precluded from giving opinion testimony where the subject of the opinion is within the field of chiropractory because the subject matter of the opinion is also within the field of medicine? We answer in the negative and make clear below that what is necessary is that the opinion be in the field of chiropractory as practiced and that the witness be properly qualified in that field. That there may be areas of overlap between the fields of medicine and chiropractory is a matter of no moment, so long as the witness stays in his field.

 II.

 On November 29, 1980, John Alan Garrett, age 22, of Tallahatchie County, Mississippi, and two others were passengers in an automobile owned and being driven by Dorothy Yarbro. While proceeding on Highway 3 between Lambert and Tutwiler, the Yarbro vehicle was struck by an automobile driven by E. B. Smith. Smith was an uninsured motorist.

 Following the accident, Garrett was hospitalized in Clarksdale, Mississippi, for seven or eight days. He was treated by Drs. Sartin and Baine of the Clarksdale Surgical Clinic and was thereafter referred to Dr. Joseph Hudson of the Semmes-Murphy Clinic in Memphis by whom he was discharged on April 15, 1981.

 In late November, 1981, almost a year after the accident, Garrett stumbled over a branch or twig and fell. On November 25, 1981, he saw for the first time Dr. Harry A. Tillman, a chiropractor, whose office was in Clarksdale, Mississippi. Garrett gave Dr. Tillman a history of the fall and stated that the pain felt like the same injury he had had the previous November in a car wreck.

 Dorothy Yarbro, driver of the automobile in question, was covered by an insurance contract with Dairyland Insurance Company. This contract provided both liability and uninsured motorist coverage. The UM provisions of the Dairyland policy afforded maximum coverage of $10,000.00 per person and $20,000.00 per occurrence.

 Because E. B. Smith was an uninsured motorist and because the facts suggested that he was almost wholly at fault in causing the November, 1980, accident, each of the four occupants of the automobile asserted claims against Dairyland under the UM coverage in its policy insuring Yarbro. On April 15, 1981, Garrett effected a settlement with Dairyland wherein he received $7,517.00 under the UM coverage and an additional $1,000.00 under the liability coverage Dairyland afforded Yarbro. Yarbro received a $4,600.00 settlement under her UM coverage. Lawanda Turman got $800.00. The record is not precise with respect to the fourth occupant, Randy Porter. It appears that he received from Dairyland between $3500.00 and $4,000.00. In sum, it appears that between $16,417.00 and $16,917.00 of the $20,000.00 per occurrence coverage was exhausted.

 In addition, Garrett had three automobile insurance policies with Mississippi Farm Bureau Mutual Insurance Company (" Farm Bureau "). Each of the policies contained $10,000.00 per person uninsured motorist coverage. On June 27, 1981, Garrett filed suit against Farm Bureau, charging that his damages arising out of the November, 1980, accident greatly exceeded what he had received from Dairyland and demanding judgment for the full, stacked $30,000.00.

 After considerable pre-trial wranglings the case was called for trial on March 7, 1983, in Sumner, Mississippi, at the conclusion of which the jury returned a verdict for Garrett and against Farm Bureau in the amount of $30,000.00. This appeal is taken following the Circuit Court's order denying Farm Bureau's motion filed August 24, 1983, for judgment notwithstanding the verdict, or, in the alternative, for a new trial, or, in the alternative, for a remittitur.

 III.

 Farm Bureau first argues that Garrett may have no recovery under the three uninsured motorist contracts Farm Bureau had with him because he failed to exhaust the coverage afforded him under the Dairyland policy, wherein Garrett's driver, Dorothy Yarbro, was the insured.

 The argument turns on a proper construction of the following provision found in the UM coverage section of each of the Farm Bureau/Garrett policies:

 With respect to bodily injury or property damage sustained by an insured while occupying or being struck by an automobile not owned by the principal named insured, the insurance under this endorsement shall apply only as excess insurance over any other similar insurance available to each insured and applicable to such automobile as primary insurance, and this insurance shall then apply only in the amount of which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance.

 We consider this proposition in the context of our accepted principles that the uninsured motorist statute, Miss. Code Ann. 83-11-101, et seq. (Supp.1985), and policies issued thereunder are to be construed liberally to provide coverage and strictly to avoid or preclude exceptions or exemptions from coverage. Matthews v. State Farm Mutual Automobile Ins. Co., 471 So. 2d 1223, 1225 (Miss.1985). In implementation of those principles we have repeatedly held that insurers may not employ policy language to cut down on coverage mandated by our UM statute. See, e.g., State Farm Mutual Automobile Ins. Co. v. Kuehling, 475 So. 2d 1159, 1161 (Miss.1985); Talbot v. State Farm Mutual Automobile Ins. Co., 291 So. 2d 699, 703 (Miss.1974).

 The policy language quoted above plainly required that Garrett first resort to the Dairyland/Yarbro policy. That policy afforded" other similar insurance "within the meaning and contemplation of the Farm Bureau/Garrett policies.

 Garrett, indeed, did pursue Dairyland first. He settled his claim under the UM coverage of the Dairyland/Yarbro policy for $7,517.00. The per person coverage limit for that policy was $10,000.00. Farm Bureau argues that Garrett left

 $2,483.00 on the table and, accordingly, is barred from recovery against Farm Bureau because he did not exhaust the $10,000.00 Dairyland/Yarbro UM coverage. Such exhaustion, according to Farm Bureau, is a prerequisite of its liability on any of the three UM coverages it wrote for Garrett.

 Farm Bureau's point turns - and fails - upon the construction of the word" available ". According to the language quoted above, Farm Bureau's obligations kick in insofar as Garrett has sustained injuries for damages over and above" other similar insurance available "to him. Farm Bureau says that $10,000.00 worth of" other similar insurance "was" available "to Garrett. As Garrett did not secure the full $10,000.00, he has not fulfilled the condition precedent to the present action.

 The construction Farm Bureau would give the word" available "bears little relationship to the real world. The assertion of personal injury claims against insurers, directly or indirectly, is seldom without costs and risks. Legal expenses and attorneys fees, not to mention expenditures of time and energy plus emotional wear and tear, attend all litigation. Looming above all litigation costs today is delay. Beyond these costs the risk of failure is ever present no matter how open and shut the case on its face may appear. In ...


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