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MARIE WICKLINE and Sharlotte Wickline Starc v. UNITED STATES FIDELITY & GUARANTY COMPANY.

August 31, 1988

MARIE WICKLINE and Sharlotte Wickline Starc
v.
UNITED STATES FIDELITY & GUARANTY COMPANY.



(Miss.1985) allowed offset for uninsured motorist policy coverage for a $10,000 amount received from the tortfeasor's liability carrier. In that case the driver, Kuehling, was injured in an accident caused by an insured driver who drove an uninsured motor vehicle. Kuehling settled with the tortfeasor's insurer and then sought recovery from her own insurer for maximum amounts available under UM coverage. In Kuehling, this Court stated:

The statute [Miss.Code Ann. 83-11-103 (1979)] in its present form in pertinent part is as follows:

(c) The term "uninsured motor vehicle" shall mean: (iii) An insured motor vehicle, when the liability insurer of such vehicle has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist coverage; or

This Court discerns no mandate by the 1979 amendments to section 8-11-101 et seq. to afford greater coverage to one injured by a tortfeasor who is totally injured by a tortfeasor who is partially insured than to one injured by a tortfeasor who is totally uninsured.

 Section 83-11-111 allows insurers to contract with regard to excess coverage so long as the Mississippi rules regarding exclusion and stacking are not violated. The policy provision to which the parties in this suit contracted does not violate such rules nor does it act to reduce the coverage required by the statute.

 The Court's Kuehling ruling was that the clear language of the policy and the statute provided for offsets of the uninsured motorist coverage by amounts paid by the tortfeasor's liability carrier. Kuehling is controlling in this case, and is consistent with Brown v. Maryland Casualty Co., supra,.

 Therefore, U.S.F. & G. is entitled to offset the total of its uninsured motorist coverage by $10,000.00 payment of the tortfeasor's liability carrier. Hence the plaintiffs may recover stacked liability of $40,000.00 less $10,000.00 offset from

 liability payments, or a net of $30,000.00.

 The trial court is reversed on the offset question on cross- appeal. Interest at the legal rate on the $20,000.00 ordered by the circuit court from the date of the circuit court judgment is awarded, plus interest on the additional $10,000.00 awarded by this Court from the date of this Court's judgment of May 4, 1988. Appellant's petition for rehearing on the issue of prejudgment interest is denied.

 REVERSED AND RENDERED ON DIRECT APPEAL; AFFIRMED IN PART, REVERSED IN PART AND RENDERED ON CROSS-APPEAL; DAMAGES IN THE AMOUNT OF $40,000.00 AWARDED TO APPELLANTS, LESS $10,000.00 OFFSET, AND NET AMOUNT OF $30,000.00 PLUS INTEREST.

 APPELLEE'S PETITION FOR REHEARING DENIED AS TO THE STACKING ISSUE; GRANTED AS TO THE OFFSET ISSUE. APPELLANT'S PETITION FOR REHEARING DENIED AS TO THE PREJUDGMENT INTEREST ISSUE.

 ROY NOBLE LEE, C.J., HAWKINS and DAN M. LEE, P.JJ., and ROBERTSON, SULLIVAN, ANDERSON, GRIFFIN and ZUCCARO, JJ., concur.

19880831 ...


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