PRATHER, JUSTICE, FOR THE COURT:
ON PETITION FOR REHEARING
The former opinion is withdrawn, and this modified opinion regarding the offset question is substituted.
Issues relating to automobile uninsured motorist coverage are in question in this appeal from the Circuit Court of Tate County. The wrongful death beneficiaries of Stacy Wickline, who are Marie Wickline and Sharlotte Wickline Starc, mother and sister respectively of Stacy Wickline, (Wickline), sued the United States Fidelity & Guaranty Company (U.S.F. & G.), to recover under uninsured motorist coverage. On motion and cross-motion for summary judgment, the trial court denied the stacking of uninsured coverages to a guest passenger from his host's insurer, but permitted recovery of the maximum per person uninsured motorist coverage to each of the death beneficiaries on the one vehicle involved, without setoff. Both parties appeal; appellant Wickline, with Class Two insured status, asserts that stacking of uninsured coverage should be allowed, while cross-appellant U.S.F. & G. denies that a claim for liability and uninsured motorist coverage can be made under the same policy in a one car accident.
On August 5, 1981, Stacy Wickline was riding as passenger in a 1979 Thunderbird owned by Mills Carter, Jr. and operated by Mills Carter, III. The automobile collided with a vehicle parked on the side of the road, resulting in the death of Stacy Wickline. Neither Wickline nor the appellants are family members of the named insured's household, nor did they pay any premium to U.S.F. & G. No other information is afforded concerning the parked vehicle. The record indicates the accident resulted solely due to the negligence of Mills Carter, III.
The Carter car, driver and any passenger, were insured under a policy issued to Mills Carter, Jr. by U.S.F. & G., providing liability coverage of $10,000 each person and $20,000 per accident and uninsured motorist coverage of $10,000 each person and $20,000 per accident. Four separate cars owned by Mills Carter, Jr., were covered under that U.S.F. & G. policy and separate premiums for each car were
paid by Mills Carter, Jr. including the 1979 Thunderbird in which Stacy Wickline was a passenger. The named insureds in the U.S.F. & G. policy were Mills Carter, Jr. and Patsy T. Carter.
Additionally, the plaintiffs and Stacy Wickline were insured under two of their own insurance policies issued to the Wicklines by State Farm Insurance Co. with uninsured motorist coverage of $10,000 per person, $20,000 per accident on each policy. The Wicklines settled this claim with State Farm in the amount of $30,000 under the uninsured motorist provisions of their policies.
Immediately after this accident, Stacy Wickline's survivors received $10,000 from U.S.F. & G. as limits of its liability per person coverage. However, the Wicklines filed suit in circuit court alleging each beneficiary was entitled to the maximum per person uninsured motorist coverages on the four Carter vehicles under the U.S.F. & G. policy, totaling $80,000.
All parties stipulated that the plaintiffs' damages from the death of Stacy Wickline are sufficient to support an award up to $80,000, the only question being whether the U.S.F. & G. owes any additional sum.
Motions for summary judgments were presented by both parties. It was the Wicklines' position that each of the two plaintiffs were entitled to the $10,000 per person uninsured motorist limit on each of the four Carter vehicles, totaling an $80,000 award. The trial court denied this stacking of policies. On this issue, the trial court held that the limits of bodily injury liability on the 1979 Thunderbird involved in the accident were less than limits applicable to Stacy Wickline under her own policy and that the 1979 Thunderbird was therefore an "uninsured motor vehicle" as defined by the Mississippi Uninsured Motorist Act. The court further held that Marie Wickline and Sharlotte Wickline Starc, survivors, were "insureds" under the uninsured motorist provision of the U.S.F. & G. policy applicable to the 1979 Thunderbird and that under the terms of the policy, each was entitled to $10,000, a total of $20,000, which U.S.F. & G. could not reduce by the $10,000 coverage paid under the liability provision of the same policy.
Since the trial court held that the Wicklines could not "stack" the coverage for all four vehicles covered under the U.S.F. & G. uninsured motorist provision, the Wicklines appeal. U.S.F. & G. cross-appeals alleging error in the denial of its cross-motion for summary judgment asserting
that the uninsured motorist coverage is not available to the Wicklines since, in a single car accident case, a guest passenger may not stack Class I uninsured motorist coverage provided by his insurer with Class Two uninsured motorist coverage provided by his host's insurer to cause an otherwise insured vehicle to become uninsured as to the host's uninsured motorist coverage.
In Mississippi since 1967 uninsured motorist (UM) insurance coverage has provided recovery for injuries to insured injured persons in this state. An added feature to uninsured motorist insurance occurred effective January 1, 1980, when statutorily the Uninsured Motorist Act was amended to include an underinsured (UIM) motorist feature and thereby Mississippi's uninsured coverage requirement became an underinsured coverage. Miss. Code Ann. 83-11-103 (c) (i) (Supp. 1987)
Since enactment of these statutes, the courts have answered the questions concerning the rights and remedies of injured parties by uninsured motorists. Every policy of automobile liability insurance contains uninsured motorist coverage unless the policyholder rejects such coverage in writing. With the increased coverages available to policyholders, there have been new questions that have arisen. One such new question has been the combining or aggregating of coverages of different policies or of one policy covering separate vehicles for which plural premiums are paid. Government Employees Ins. Co. v. Brown, 446 So.2d 1002 (Miss. 1984). This method of aggregating the coverages of different policies applicable to an injured party is popularly referred to as "stacking," and this principle is the source of much litigation.
The instant case presents another factual situation involving a "stacking" question and seeks to apply the aggregating of claims to a class of insureds under uninsured motorist coverage who are guest passengers. In reaching a resolution to this question, this Court first notes the rules of construction applied by this Court in former cases.
On numerous occasions this Court has observed that uninsured motorist insurance is designed to provide innocent injured motorists a means of compensation for injuries which they receive at the hands of an uninsured motorist, see e.g. Harthcock v. State Farm Mutual Ins. Co., 248 So.2d 456, 460-61 (Miss. 1971), and this Court has further noted that the Uninsured Motorist Act must be liberally construed to achieve
this purpose. Stevens v. U.S.F. & G. Co. 345 So.2d 1041 (Miss. 1977); Parker v. Cottonbelt Ins. Co., Inc., 314 So.2d 342 (Miss. 1975); Lowery v. State Farm Mutual Automobile Ins. Co., 285 So.2d 767 (Miss. 1973); Hodges v. Canal Ins. Co., 223 So.2d 630 (Miss. 1969). In addition to determining the statutory purpose of the Act, this Court has looked to the policy in question and construed ambiguous provisions against the insured and in favor of the injured party to accomplish the statutory purpose. GEICO v. Brown. supra; Hartford Accident & Indemnity Co. v. Bridges, 350 So.2d 1379 (Miss. 1977); Pearthree v. Hartford Accident & Indemnity Co., 373 So.2d 267 (Miss. 1979). Another rule of construction applied in our cases has been to hold unenforceable any policy provision that seeks to reduce the coverage required by the statute. Lowery v. State Farm Mutual Automobile Insurance Co., 285 So.2d 767 (Miss. 1973).
With these guiding principles in mind, this Court now addresses this factual situation.
The initial question raised in this appeal is whether the Carter vehicle is an uninsured, or underinsured, vehicle. The trial court analyzed this seminal question thusly:
Uninsured motorist insurance, also known as "family protection insurance" was conceived by the insurance industry and adopted in Mississippi to provide innocent injured motorists a means of recovery of all sums to which they are entitled from an uninsured motorist. Rampy v. State Farm Mutual Auto Insurance Company, 278 So.2d 428, 431-32 (Miss. 1973); Harthcock v. State Farm Mutual Automobile Insurance Company, 248 So.2d 456, 461-62 (Miss. 1971).
For uninsured motorist coverage to apply, the negligent tortfeasor's vehicle must be an "uninsured motor vehicle" as defined in the Mississippi uninsured motorist statute. Miss. Code Ann. 83-11-103 (c); McMinn v. New Hampshire Insurance Company, 276 So.2d 682 (Miss. 1973) [decided before amendment of Mississippi UM statute to include "underinsured motorist coverage" ].
Prior to amendment of the Mississippi uninsured motorist statute to include the concept of "underinsured motorist coverage" , the Carter vehicle would not have been an uninsured motor vehicle. McMinn v. New Hampshire Insurance Company, 276 So.2d 682 (Miss. 1973); Chrestman v. State Farm Mutual Automobile Insurance Company, 276 So.2d 685 (Miss. 1973). In 1979, however, the Mississippi Legislature amended
the Mississippi UM statute. Effective January 1, 1980, the statutory definition of "uninsured motor vehicle" was amended to include underinsured motor vehicles. The statute now includes in the definition of "uninsured motor vehicle" a vehicle with liability insurance limits less than the UM limits applicable to the injured person:
Section 83-11-103. Definitions.
(c) The term `uninsured motor vehicle' ...