Even Running Over Wife with her car Allows UM Coverage

Alabama Allows Wife Chance to Collect UM Cover When her Husband Runs Her Over

Insurance policy interpretation is always interesting and often confusing. When Zachariah Cowart (“Zachariah”) ran over his wife Misty Cowart (“Misty”) causing her severe injuries she sought to add to her recovery from her soon to be ex-husband’s insurer with Uninsured Motorist Coverage from her insurer whose policy wording was not absolutely clear.

In Misty Cowart v. GEICO Casualty Company, 1171126, Supreme Court of Alabama (October 25, 2019) the trial court entered a summary judgment in favor of the insurer and upheld its denial of uninsured-motorist benefits to Misty.

FACTS

On November 8, 2014, after an argument broke out between the couple, Zachariah decided to leave the house by automobile, despite the fact that he was intoxicated. Zachariah took the keys to the 2013 Jeep Wrangler sport-utility vehicle (“the Jeep”) typically driven by Misty. Despite Misty’s protest, Zachariah started the Jeep and began to drive off. In doing so, he knocked Misty down with the vehicle and ran over her left leg, causing compound fractures to her leg and ankle. At the time of the accident, both Misty and Zachariah were named insureds under the policy, which was issued by GEICO Casualty Company (“GEICO”) and covered the Jeep.

On November 2, 2016, Misty sued Zachariah in the Mobile Circuit Court alleging negligence and wantonness. She subsequently accepted a settlement from GEICO for the limits of the bodily-injury-liability provision of the policy, even though that settlement did not fully compensate her for her injuries.

Misty amended her complaint to name GEICO as a defendant and demand payment under a separate provision of the policy for uninsured-motorist coverage. Misty averred that Zachariah had taken the Jeep without her permission at the time of the accident. Because she allegedly owned the Jeep and because Zachariah had allegedly used the Jeep without her permission, she argued that the Jeep was an “uninsured auto” under the policy and that she was therefore entitled to compensation under the uninsured-motorist-coverage provision.

The trial court granted GEICO’s motion for a summary judgment on the ground that the Jeep fell within the definition of “insured auto” in the policy.

ANALYSIS

The contract of insurance will be construed strictly against the insurer and liberally in favor of the insured. Exceptions to coverage in a policy of insurance must be interpreted as narrowly as possible in order to provide maximum coverage of the insured.

The policy provides the following uninsured-motorist coverage: “Under the Uninsured Motorist Coverage we will pay damages for bodily injury caused by accident which the insured is legally entitled to recover from the owner or operator of an uninsured auto or hit-and-run auto arising out of the ownership, maintenance or use of that auto.”

The policy defines an “uninsured auto” in part as “an auto for which the limits of liability under all bodily injury insurance policies available to the injured person are less than the damages which the injured person is legally entitled to recover.”

Because the term “uninsured auto” does not include an “insured auto,” it becomes necessary to examine what constitutes an “insured auto” under the policy. Because there is no dispute that the Jeep is covered by the bodily-injury-liability provision of the policy, GEICO argues that the Jeep is an “insured auto” and that Misty’s injuries cannot be covered by the policy’s uninsured-motorist provision, regardless of who owned the Jeep at the time of the accident and regardless of whether Misty withheld permission from Zachariah to operate the Jeep at that time.

The policy excludes from the definition of an “insured auto” “an auto being used without the owner’s permission.”

Because the plain language of the policy does not exclude from uninsured-motorist coverage a vehicle being driven without its owner’s permission, the policy must be read to provide uninsured-motorist coverage in such an event.

Misty submitted substantial evidence that Zachariah intended to give her the Jeep as a gift. Misty has also submitted substantial evidence tending to prove that she accepted the gift of the Jeep and that the Jeep was delivered to her. A jury would be free to infer that Zachariah intended to give Misty the Jeep as a gift and that she accepted the gift and took delivery of the Jeep when she took exclusive possession of the keys.

The record contains undisputed evidence that Misty denied Zachariah permission to use the Jeep at the time of the accident.

The plain language of the policy provides that a vehicle driven without its owner’s permission, regardless of whether that vehicle is covered under the bodily-injury-liability provision of the policy, is not an “insured auto,” thus making it eligible for coverage under the uninsured-motorist provision of the policy. Therefore, Misty is entitled to compensation under her uninsured-motorist coverage if she can prove that she was the sole owner of the Jeep and that Zachariah was operating it without her permission at the time of the accident that caused her injuries.

Because there are genuine issues of material fact with respect to her alleged ownership of the Jeep and her denial of permission to Zachariah, the Alabama Supreme Court concluded that trial court improperly entered a summary judgment for GEICO.

ZALMA OPINION

Appellate courts seem to be ready, when a person is seriously injured, to interpret the language of an insurance policy in a way to give the plaintiff the opportunity to collect as much money as possible to compensate for the injury. Although most policies have exclusions preventing family members from recovering for injuries caused by other family members that common – although not universal – exclusion was not mentioned. Clearly a husband should never run over his wife – understandably they are now divorced – but to make an insurer pay both as a liability insurer its limits and then add to it uninsured motorist coverage seems odd.


© 2019 – Barry Zalma

This article, and all of the blog posts on this site, digest and summarize cases published by courts of the various states and the United States.  The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant  specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 50 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

Over the last 51 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.

About Barry Zalma

An insurance coverage and claims handling author, consultant and expert witness with more than 48 years of practical and court room experience.
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1 Response to Even Running Over Wife with her car Allows UM Coverage

  1. Tom Murin says:

    You don’t see the “family member” exclusion in most auto policies since it runs counter to the financial responsibility laws of most states’ which require liability insurance for injuries or death to “any person” without any exception for family members. This makes sense, but I always felt a bit uncomfortable with the family member v. family member claims since they were a bit of a fiction. A child could sue and win a judgment (maybe even one in excess of policy limits) against their parent. Of course, the family member exclusion is part of HO policies – but there is no applicable public policy/financial responsibility law for HO.

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