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ALBERT WASHINGTON v. GEORGIA AMERICAN INSURANCE COMPANY

FEBRUARY 27, 1989

ALBERT WASHINGTON
v.
GEORGIA AMERICAN INSURANCE COMPANY



BEFORE DAN LEE, P.J., PRATHER AND PITTMAN, JJ.

PITTMAN, JUSTICE, FOR THE COURT:

This case involves an appeal from the Circuit Court of Hinds County, where Georgia American Insurance Company was granted summary judgment on a declaratory judgment action involving its insured, Albert L. Washington. We find that the Circuit Court was correct in its ruling, and we affirm.

I

 On March 4, 1984, Albert Washington was riding in a car owned and operated by Donnie J. Watts when it was involved in a collision approximately two miles west of Raymond, Mississippi. The proximate cause of the collision was Watts' negligence. Watts' car, a 1975 Mercury Cougar, was covered under an insurance policy with Thurston Fire and Casualty Insurance Company which provided policy limits for bodily injury of $10,000 per person and $20,000 per accident. The other automobile involved in the collision was being operated by Minnie Stamps and had, including Ms. Stamps, fifteen occupants. After the accident, Thurston Fire and Casualty filed an interpleader action in the Chancery Court of the First Judicial District of Hinds County, for the purpose of distributing its limits of liability of $20,000 to the various individuals who were injured in the accident. As a result of this action the disbursement was made, and $463.34 was awarded to Washington.

 On the date of the accident, Albert Washington had in force and effect an insurance policy with Georgia American Insurance Company, covering a 1978 Thunderbird. This policy provided uninsured motorist coverage with limits of $10,000 per person, and $20,000 per accident. On July 21, 1986, Georgia American filed a Complaint for Declaratory Judgment in the Circuit Court of Hinds County, First Judicial District, seeking a declaration that it owed Washington nothing under the uninsured motorist coverage in the policy. On November 10, 1986, Washington joined Georgia American in the complaint for Declaratory Judgment, asking the court to find that Georgia American owed Washington $9,536.66 under the terms of the uninsured motorist provision of the policy, that sum being derived from the $10,000 per person policy limits less the $436.34 Washington had received earlier from Donnie Watts' insurance coverage. Both parties stipulated that the injuries received by Washington were substantial enough to support an award of damages in the amount of $9,536.66.

 On November 18, 1986, Georgia American moved for summary judgment on the Complaint for Declaratory Judgment. Washington answered with a general denial, and then on December 22, 1986, moved for summary judgment on the Complaint for Declaratory Judgment. By written order dated February 6, 1987, the Circuit Court granted Georgia American's summary judgment motion and denied Washington's summary judgment motion, finding that Washington was not entitled to uninsured motorist coverage under his policy with Georgia American. From that decision Washington has appealed, assigning as error the Circuit Court's decision in favor of Georgia American.

 II.

 The question presented here is the following: Is Albert Washington entitled to collect uninsured motorist coverage provided by his policy with Georgia American? Georgia American, relying on a portion of the Uninsured Motorist Provision, Miss. Code Ann. 83-11-103 (c)(iii) (Supp. 1988), maintains that he may not. Washington, relying on a provision of his policy with Georgia American, argues that he is entitled to the coverage, to the extent that the liability coverage of Donnie Watts was insufficient to compensate Washington for his injuries.

 The language on which Washington relies can be found in his Georgia American policy in the section on uninsured motorist coverage under" CONDITIONS ":

 6. Other Insurance

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

 of such other insurance. (emphasis added).

 In conjunction with this language, Washington relies on Mississippi Farm Bureau Mutual Insurance Co. v. Garrett, 487 So.2d 1320 (Miss. 1986), which construed a policy containing language almost identical to that in Washington's policy under" Other Insurance ". In Garrett, the insured was injured in a collision with an uninsured driver. 487 So.2d at 1322. Garrett and the other injured parties claimed against Dairyland Insurance, the uninsured motorist insurer of the driver of the car in which they had been riding. Garrett settled with Dairyland for $7,517.00 out of the $10,000 policy limits. He then filed suit against his insurer, Farm Bureau, for additional uninsured motorist coverage. Farm Bureau denied coverage, saying that Garrett had to exhaust the $10,000 uninsured motorist coverage from Dairyland before he could claim under his Farm Bureau policy. 487 So.2d at 1323. According to Farm Bureau, the difference between the $10,000 limits and the $7,517.00 Garrett settled for was" similar insurance available "to Garrett, and he could not as a result tap his own uninsured motorist coverage.

 This Court began by announcing a rule of construction," that the uninsured motorist statute . . . and policies issued thereunder are to be construed liberally to provide coverage and strictly to avoid or preclude exceptions or exemptions from coverage. "487 So.2d at 1323. The Court then interpreted the policy language" other similar insurance available. "It found that, realistically, the settlement of $7,517.00 qualified as" any other similar insurance available "to Garrett, and that he could, after settling for that amount, claim against Farm Bureau. 487 So.2d at 1323-24. Considering the applicable rules of ...


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