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Shepherd v. Fregozo6/13/2005
ce ยง 24.10 (1984).
A number of decisions have held the "owned-but-uninsured" exclusionary clause unenforceable. See Bradley v. Mid-Century Insurance Co., 409 Mich. 1, 294 N.W.2d 141 (1980); Harvey v. Travelers Indemnity Co., 188 Conn. 245, 449 A.2d 157 (1982); Kau v. State Farm Mutual Automobile Insurance Co., 58 Haw. 49, 564 P.2d 443 (1977); Kaufmann v. Economy Fire & Casualty Insurance Co., 52 Ill.App.3d 940, 10 Ill.Dec.776, 368 N.E.2d 371 (1977), aff'd, 76 Ill.2d 11, 27 Ill.Dec.742, 389 N.E.2d 1150 (1979); Lindahl v. Howe, 345 N.W.2d 548 (Iowa 1984); State Farm Mutual Automobile Insurance Co. v. Hinkel, 87 Nev. 478, 488 P.2d 1151 (1971).
Other jurisdictions have upheld the exclusion. See Holcomb v. Farmers Insurance Exchange, 254 Ark. 514, 495 S.W.2d 155 (1973); Shipley v. American Standard Insurance Co., 183 Neb. 109, 158 N.W.2d 238 (1968); Beaupre v. Standard Fire Insurance Co., 736 S.W.2d 237 (Tex.App. 1987); Anderson v. State Farm Mutual Automobile Insurance Co., 471 N.E.2d 1170 (Ind.App.1984); Simmons v. Nationwide Mutual Insurance Co., 65 Ohio App.2d 28, 414 N.E.2d 440 (1979).
In those jurisdictions invalidating the exclusion, a primary concern is that it conflicts with the purpose for uninsured motorist insurance, which is to provide the same degree of protection to an insured as he would have received from a financially responsible tortfeasor. See, e.g., Jacobson v. Implement Dealers Mutual Insurance Co., 196 Mont. 542, 640 P.2d 908 (1982). The exclusion is therefore viewed as a restriction on the intended scope of uninsured motorist coverage which ordinarily applies regardless of whether the insured is injured in an insured vehicle, an unowned vehicle, or on foot. See, e.g., Calvert v. Farmers Insurance Co., 144 Ariz. 291, 697 P.2d 684 (1985).
On the other hand, courts upholding the exclusion argue that the insured and his insurer freely entered into a contract to exclude recovery in the owned-but-uninsured vehicle situation. See Clark v. State Farm Mutual Automobile Insurance Co., 743 P.2d 1227 (Utah 1987). To permit recovery otherwise, would result in a "free-ride" for some multiple-vehicle owners and would force insurers to provide gratuitous coverage while incurring additional risk. See Anderson v. American Economy Insurance Co., 43 Wash.App. 852, 719 P.2d 1345 (1986). Moreover, rewarding a plaintiff who himself is operating an owned but uninsured vehicle is unfair and repugnant to the legislative policy behind uninsured motorist statutes. See Dullenty v. Rocky Mountain Fire & Casualty Co., 111 Idaho 98, 721 P.2d 198 (1986).
Williams-Diehl v. State Farm, 793 P.2d 587, 589-90 (Colo.App.1989).
In 1995, the Supreme Court of Colorado reiterated its view that the Colorado uninsured motorist statutes provided for broad coverage ". . . to assure the wide-spread availability to the insuring public of insurance protection against financial loss caused by negligent financially irresponsible motorists." Aetna Casualty & Surety Co. v. McMichael, 906 P.2d 92, 98 (Colo.1995).
In April of 2001, the Supreme Court of Colorado, in the context of construing the Colorado uninsured motorist statutes as related to the son of the named insured injured while riding a motorcycle, applied the broadest possible uninsured motorist coverage, relegating the significance of the named insured's right to waive the coverage to cases wherein the waiver was actually accomplished. Said the Court:
We now address whether DeHerrera is eligible for UM/UIM coverage. As with PIP coverage, Sentry argues that the policy unambiguously fails to provide UM/UIM coverage to a person occupying a vehicle that is not a car at the time o
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