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JERRY BROWN v. MARYLAND CASUALTY COMPANY

JULY 22, 1987

JERRY BROWN
v.
MARYLAND CASUALTY COMPANY



BEFORE ROY NOBLE LEE, SULLIVAN and GRIFFIN

ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:

Jerry Brown and Toni Brown, husband and minor child of Tracy Dee Brown, deceased, appeal from a summary judgment entered by the Circuit Court of DeSoto County, Mississippi, holding that they were unable to stack uninsured motorist coverages on an insurance policy issued by Maryland Casualty Company. The sole question presented is whether or not the lower court erred in denying appellant's stacking claim on uninsured motorist coverage.

On May 3, 1984, Tracy Dee Brown, while driving a 1978 Ford Fairlane automobile, with the consent of Roy Brown, her father-in-law and owner of the vehicle, was involved in an automobile accident, which resulted in her death. It was admitted that the accident was due to the negligence of one David Perry, whose liability insurance carrier tendered its maximum-per-person coverage in the amount of ten thousand dollars ($10,000) to appellants.

 In addition to the insurance policy issued by Maryland Casualty Company on the Roy Brown 1978 Fairlane automobile, the policy covered another automobile with uninsured motorist protection in the amount of ten thousand dollars ($10,000) per person and twenty thousand dollars ($20,000) per accident. Thus, the aggregate uninsured/underinsured coverage on one person in the Brown policy amounted to twenty thousand dollars ($20,000). Separate premiums were

 paid to cover the two vehicles.

 Appellants contend that under appellee's policy, Tracy Dee Brown was a covered person and is entitled to the uninsured motorist protection afforded both automobiles. Appellee argues that Tracy Dee Brown was a covered person for only the uninsured motorist coverage pertaining to the Ford Fairlane automobile, which she was driving, and appellee denied liability for any amount exceeding that $10,000 coverage. The parties admitted that the damages incurred by reason of Tracy Dee Brown's death exceeded thirty thousand dollars ($30,000), the amount of the David Perry liability insurance and the aggregate of uninsured motorist coverage on the two Roy Brown vehicles for one person. In sustaining the motion for judgment on the pleadings, the lower court held that the uninsured motorist coverage could not be stacked to afford appellants $20,000 in such benefits, since Tracy Dee Brown was an occupant, or Class 2 insured, covered only while using the vehicle to which the uninsured motorist policy applied.

 Stated differently, the issue on this appeal is whether or not a Class 2 occupancy insured is entitled to stack the coverages held by the named insured under his uninsured motorist policy. The answer must be found in an interpretation of the Mississippi Uninsured Motorist Act and the construction of the parties' contract, under Mississippi decisions. State Farm Mutual Automobile Insurance Co. v. Kuehling, 475 So.2d 1159 (Miss. 1985).

 Pertinent part of the applicable statute, Mississippi Code Annotated 83-11-101(1) (Supp. 1986), provides:

 (1) No automobile liability insurance policy or contract shall be issued or delivered after January 1, 1967, unless it contains an endorsement or provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages for bodily injury or death from the owner or operator of an uninsured motor vehicle, within limits which shall be no less than those set forth in the Mississippi Motor Vehicle Safety responsibility Law, as amended, under provisions approved by the commissioner of insurance; however, at the option of the insured, the uninsured motorist limits may be increased to limits not to exceed those provided in the policy of bodily injury liability insurance of the insured or such lesser limits as the insured elects to carry over

 the minimum requirement set forth by this section. The coverage herein required shall not be applicable where any insured named in the policy shall reject the coverage in writing and provided further, that unless the named insured requests such coverage in writing, such coverage need not be provided in any renewal policy where the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer.

 In construing this statute, the Court stated in Harthcock v. State Farm Mut. Auto. Ins. Co., 248 So.2d 456, 461-62 (Miss. 1971):

 [T]he uninsured motorist coverage of each policy of liability insurance is available to the injured insured until all sums which he shall be entitled to recover from the uninsured motorist have been recovered. The coverage is mandatory on the insurer and this undertaking cannot be diminished by a provision in the policy.

 This Court has further held that an insurer may contract with its insured to provide broader coverage than required by the uninsured motorist statute. Pearthree v. Hartford Accident & ...


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