Appeal from the United States District Court for the Northern District of Indiana, South Bend Division - Civil No. 73 S 90 George N. Beamer, Judge.
Hastings, Senior Circuit Judge, Cummings and Lay,*fn* Circuit Judges.
HASTINGS, Senior Circuit Judge.
Plaintiff Rita Miller, administratrix of the estate of Clell Miller, deceased, brought this action against defendant The Hartford Accident and Indemnity Company, seeking recovery of $60,000 for uninsured motorist benefits and $2,000 accidental death benefits for the death of her husband, Clell Miller, pursuant to the terms and conditions of an automobile insurance policy issued by Hartford.
The action was originally filed in the Starke Circuit Court, in Starke County, Indiana. On motion of Hartford the case was transferred to the United States District Court for the Northern District of Indiana, South Bend Division. There being diversity jurisdiction pursuant to 28 U.S.C. § 1332, Indiana law governs. It is conceded that the Indiana courts have not decided the precise question presented here.
Clell Miller was killed on April 14, 1972, when operating his 1969 Oldsmobile on U.S. Highway #421 in Starke County, Indiana, as the result of a head-on collision with a 1964 Chevrolet owned and driven by Joseph F. Porterfield of Starke County. The proximate cause of the accident was the negligence of Porterfield. Miller left surviving his widow, Rita, and three minor dependent children, ages 12, 6 and 4 years. The resulting damage for the death of Miller would have exceeded the sum of $63,000. Porterfield was an uninsured motorist as defined by an Indiana statute, IND. CODE § 27-7-5-1, IND. ANN. STAT. § 39-4310 (1973 Supp.), and by the subject insurance policy.
On the date of the accident and resulting death of Miller, Miller was insured by Hartford under one insurance policy covering three automobiles he owned, with a total premium of $164.44. In addition to the 1969 Oldsmobile Miller was driving at the time of the fatal accident, the other two vehicles covered were a 1965 Oldsmobile and a 1964 Chevrolet pick-up truck, all of which were separately listed in one of the declarations of the policy. In another section of the declarations entitled Coverages, Limits of Liability and Premiums, Section I, there appears under Coverage C, for accidental death benefits, a limit of $1,000 for each named insured, and under Coverage D, for uninsured motorists, a limit of $20,000 for each accident. Section I coverages also include liability and medical expense. The premiums for all Section I coverages are shown to be the sum of $29.00 allocated to each of the three covered vehicles.
A similar table lists Section II coverages consisting of comprehensive and collision insurance with varying premiums allocated to each listed car. Finally, the total premium allocated for each car is indicated, all payable together in one total premium of $164.44. In short, we have one insurance policy covering three motor vehicles for one total premium, with separate allocations of premiums for each car.
In passing, it should be noted that only one accident is here involved, and Clell Miller is the only named insured. However, the policy provided under Coverage D -- Uninsured Motorists, that the following are insureds: (a) the named insured and any relative, (b) any other person while occupying an insured automobile, (c) any person with respect to damages he is entitled to recover because of bodily injury to which this coverage applies sustained by an insured under (a) or (b) above. This provision further states that the insurance afforded under Coverage D -- Uninsured Motorists applies separately to each insured, but that the inclusion herein of more than one insured shall not operate to increase the applicable limit of the company's liability.
The policy contains no separability clause. Hartford has paid the $1,000 accidental death benefit for the named insured. It has tendered $20,000 for the one accident under the uninsured motorist coverage, which plaintiff rejected. Plaintiff claims that the coverages for the three automobiles should be aggregated to permit recovery of $3,000 for accidental death benefits and $60,000 under the uninsured motorist coverage. This action presents a classic case of "stacking."
Following a pre-trial conference and the closing of issues, together with the filing of certain affidavits and admissions, plaintiff moved for summary judgment. This was based upon the absence of a dispute as to any material fact and the assertion that plaintiff was entitled to judgment as a matter of law.
Supported by a full and carefully considered memorandum opinion, the trial court denied plaintiff's motion for summary judgment and dismissed the complaint with prejudice and without costs. The judgment also provided that should Hartford fail to pay plaintiff the sum of $20,000, once tendered and rejected, within thirty days, the case would be reinstated and judgment for $20,000 would be entered for plaintiff. Hartford timely paid $20,000 into the court for plaintiff, which plaintiff refused. The instant appeal resulted.
UNINSURED MOTORIST COVERAGE
It is uncontroverted that the Section I premium allocated to uninsured motorists under Coverage D is $6.00 annually for ...