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SOUTHERN FARM BUREAU CAS. INS. CO. v. PETTIE6/12/1996
This opinion is substituted for one issued on June 12, 1996, which has been withdrawn. The case is an appeal from a judgment against the appellant holding it liable under the underinsured motorist coverage (UIM) provisions of an insurance policy issued by it. The case was ultimately submitted to the court, without a jury; therefore, any factual determinations are subject to review under the clearly erroneous standard of Rule 52(a) of the Arkansas Rules of Civil Procedure.
In December 1989, appellee, a truck driver, was injured while riding as a passenger in his employer's truck when it ran off the road and overturned in a ravine. At the time of the accident, the truck was being driven by appellee's co-employee, Ronnie McClellan, and appellee was sleeping in the passenger seat. Appellee's injuries occurred during and within the course and scope of his employment. All of appellee's medical expenses were paid by his employer's workers' compensation carrier; however, it was stipulated that appellee was not fully compensated for his injuries by his workers' compensation benefits and that his remaining damages were in excess of $25,000.00.
At the time of the accident, appellee was insured under a policy appellant had issued to appellee's wife that contained a provision for $25,000.00 in UIM coverage. This provision provided:
In consideration of the premium charged, we will pay damages for bodily injury which a covered person is legally entitled to recover from the owner or operator of an underinsured auto. . . .
The Underinsured Motorist coverage does not apply to:
4. any person while occupying or being struck by an
auto, owned by or furnished for the regular use of a covered person, that is not an insured auto under this endorsement. . . .
Appellee made claim for the $25,000.00 UIM coverage, alleging that the workers' compensation benefits he received from his employer did not compensate him for his pain, suffering, and loss of wages.
Appellant denied appellee's claim, and in September 1993, appellee filed suit. Appellant answered, denying that appellee was entitled to UIM benefits and contending that appellee's workers' compensation was appellee's exclusive remedy. Appellant also claimed that the truck appellee was occupying in the accident was not an "underinsured auto" as defined by the policy.
Subsequently, appellant made a motion for summary judgment, alleging that, under the policy provisions, appellee was not "legally entitled to recover" from either the owner of the vehicle or the operator of the vehicle and that coverage was expressly excluded under the "regular use" exclusion of the UIM endorsement. Appellee denied the motion should be granted and alleged that the "regular use" exclusion was ambiguous and presented a question of fact. The motion was denied and the parties filed a joint motion requesting the court to take the case under consideration and render a final decision based upon the stipulations, briefs, and other evidence before it.
Judgment was subsequently entered by the trial court for the appellee in the amount of $25,000, plus twelve percent penalty and attorney's fee. The trial court: (1) rejected appellant's argument that appellee was not legally entitled to recover against the owner and operator of the vehicle, and rejected appellant's conclusion that appellee had no UIM claim under the policy; (2) rejected appellant's argument that appellee's claim was barred by the statute of limitations; (3) found the exclusion in appellant's policy relating to an "auto owned by or furnished for the regular use of" a covered person was ambiguous and did not preclude coverage
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