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Show wwwvwww 0 w i i TNI PAGE TWO afforded the insured in a manner contrary to the policy expressed by the legislature and was therefore invalid. Plaintiff's argument is sustained by case authority, for there has been a marked divergence of opinion among the judiciary as to the proper interpretation of these uninsured motorist statutes. The two views are succinctly expressed in 28 A. L.R. 3d 551, 554 Anno: Uninsured Motorists -- - "Other Insurance": number of courts have held that "other insurance" provisions, whether in the form of a "pro rata, " "excess " or other similar clause, are insurance, " "excess-escap- e, a of invalid as part uninsured motorist protection, on the ground that the statute requiring every liability policy to provide this type of protection will not permit the insurer to provide in any way that the coverage will not apply whore other insurance is also "available," despite the fact that the insured may thus be put in a better position than he would be in if the other motorist were properly insured. Other courts have stated, however, that the design and purpose of uninsured motorist statutes are to provide protection only up to the minimum statutory limits for bodily injuries, and not to provide the insured with greater insurance protection than would have been available had he been injured by an insured motorist, and have held such "other insurance" provisions are valid where they do not reduce coverage below the minimum statutory limits. A , again, in the event that a judgment for general damages in his favor and against the insurance company under its Uninsured Motorist Coverage falls below the policy limits of that coverage. However, in a case such as Mr. Taylor's where the award for general damages exceeds the policy limits on Uninsured Motorist Coverage, the insurance company must pay its insured the full limits of the policy, in this case $5, 000 regardless of what it has paid him under the Medical Payments Coverage. We are fortified in our interpretation of this amendment by the fact that this is the only just meaning that it could have. Mr. Taylor paid two separate premiums for two To interpret the amendment separate coverages. as the company would have us do, would make the Medical Payment Coverage useless except in cases where the insured suffered physical injury as a result of his own negligence. . . . f ... In the instant, action, plaintiff's damages exceeded the policy limits under the uninsured motorist coverage, and Hartford was not subject to double exposure for plaintiff's medical expenses. Under such circumstances, Hartford was not entitled to offset the medical payments against the uninsured motorist coverage. Plaintiff in her cross-appe- al asserts that the trial court erred in its 000 to the the court by Allstate under Hartford's into award Hartford $2, paid of right subrogation for medical payments, when plaintiff's damages far ex- The latter view appears to be in accord with this State's statutory 1 is scheme. Section part of the Motor Vehicle Safety Responsiminimum of limits the uninsured motorist coverage are correbility Act; of lated with the minimum limits coverage required for an automobile U. C.A. 1953. liability policy under Sec. 41-12-- FRIDAY, FEBRUARY 12, 1071 DAILY IKCORD ceed her recovery therefor. 21. 41-12- -5, In Tindall v. Farmers Automobile Management Corp. the court reclause contained in an uninjected plaintiff's argument that an excess-escasured motorist provision violated the Illinois Uninsured motorist statute (paragraph 755 (a) (Sec. 143a) of Chap. 73, 111. Rev. Stat. (111. Ins. Code)). The court observed that the statutory provision was designed to promote and encourage protection complementary to that afforded by the financial responsibility act, thereby affording coverage to the same extent as would have been in effect if the had complied with the minimum requirements of the financial responsibility act. Subrogation springs from equity concluding that one having been reimbursed for a specific loss should not be entitled to a second reimbursement therefor. This principle has been accepted in the insurance field with respect to property damage, and with respect to medical pe tort-feas- or In Martin v. Christensen, 4 this court held that the provisions of 1 did not Sec. preclude the application of a clause providing that if the company had issued more than one policy to the insured, the insurer would be liable only up to the maximum coverage of its highest limit of any one policy for any one accident or loss. This court cited as authority M. F. A. Mutual Ins. Co. v. Wallace5 in its rejection of the argument of insured, that the statute fixed the minimum coverage under each policy separately; and, therefore, the insured was entitled to the maximum amount under both policies. 41-12-- 21. In 52 Virginia. Law Review 538, 554-5(1966), there is an incisive of the of recent trend judicial critique permitting the stacking of policies, i.e. , the courts have allowed recovery up to the combined limits of each policy available to the injured insured by ruling that "excess" or "other insurance" clauses were invalid. The author asserts that the Uninsured Motorist Acts are not being applied in a manner which places the victim of an uninsured ce motorist upon an equal footing with the victim of an insured motorist. In to the Virginia Act, the author states: 57 ref-leren- In these cases the courts have looked only to the number of policies available to pay the judgment obtained against the uninsured motorist. No thought has been given to the fact that the act was intended merely to fill, not overflow, an insurance vacuum. Surely the General Assembly did not intend to foster a scheme whereby the innocent victim of an insured motorist may be penalised. It seems more logical that it intended to guarantee a source from which an insured could recover his damages up to limits of $15, 000$30, 000$5, 000 with respect to any accident. By their application of the Uninsured Motorist Act, the courts in many instances have placed the innocent victim of an uninsured motorist in a superior position to that which he would have occupied if his wrongdoer had had liability coverage. The pendulum has made the full swing. Before the enactment of the Uninsured Motorist Act, one who had taken pains to protect the public against the effect of his own negligence by carrying insurance was himself left unprotected against the effect of the negligence of an uninsured motorist. Today the same person, through his uninsured motorist endorsement, is usually better protected and procedurally is in a better position if the wrongdoer is uninsured. A careful review of the case law reveals that the better reasoned clause contained in an uninsured cases give effect to an excess-escamotorist endorsement. In the instant action, the trial court erred by its refusal to apply such a clause in Hartford's policy. Plaintiff is entitled to recover only the difference between the limits of the policies issued by Hartford and Yosemite, i.e., $10,000. costs by an impressive weight of authority. . . . O The Hartford policy provides: In the event of any payment under Coverage B -Medical Expense of this policy, the company shall be subrogated to all the rights of recovery therefor which the injured person or anyone receiving such payment may have against any person or organization and such person shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. Such person shall do nothing after loss to prejudice such rights. Since subrogation is an offspring of equity, equitable principles apply, even when the subrogation is based on contract, except as modified by specific provisions in the contract. In the absence of express terms to the con- -, trary, the insured is entitled to be made whole before the 9insurer may r. recover any portion of the recovery from the if the one reextent has full of not claim the the the should insured loss, sponsible paid both sums, and the insurer may then assert its claim to subrogation. tort-feaso- In the instant action, there are no terms in this general subrogation clause which would support Hartford's subrogation claim to the $2,000, while plaintiff remains uncompensated for her total damages. Furthermore, sincf Hartford is not entitled to the award, the judgment for $500 attorneys' fees as Hartford's share of expenses in recovering the medical payments canaet be sustained,. Plaintiff further asserts that since this is an action in contract between an insured and an insurer, she is entitled to interest from the date of loss, the date of the accident, and not from the date she was granted s. The insurance contract provides: judgment against the tort-feasor- The company will pay all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle. . . . Emphasis added. Since Hartford's obligation to perform, under the express terms of did not arise until there was a legal deternpi-natio- n of the liability of the uninsured motorist and the extent of the damages sustained, the insured, plaintiff, is entitled to interest only from the time that judgment was rendered against the its contract with the insured, tort-feaso- rs. Finally, plaintiff contends that the trial court should have awarded her damages for Hartford's failure to bargain with her or settle her claim. She concedes that there is no case in point but asserts that this court should analogize her situation to that where a liability insurer refuses in bad faith to settle a claim with third parties within the policy limits and a judgment in excess of the policy limits is rendered against the insured. She reasons that by Hartford's failure to bargain, she was compelled to incur legal expenses for which she is entitled to be compensated. pe Defendant, Hartford, further contends that it is entitled to set off the 000 that it has paid under the medical payments coverage against the $2, amount that it is deemed liable to pay plaintiff under the uninsured motorist coverage. Hartford cites the following provision in its policy: The company shall not be obligated to pay under Coverage D - Uninsured Motorists that part of the damage which the insured may be entitled to recover from the owner or operator of an uninsured highway vehicle which represents expenses for medical services paid or payable under Coverage B - Medical Expense. Plaintiff's analogy is untenable because of the distinction in the relationship between a liability insurer and its insured and that between the insurer and its insured in connection with an uninsured motorist. In the former situation, the insurer must act in goojl faith and be as zealous in protecting the interests of the insured as it would be in regard to its own. In the latter situation, the insured and the insurer are, in effect and practically speaking, adversaries. The judgment of the district court is reversed, and this cause is remanded with an order to render judgment in accordance with this opinion. Each party should bear its own costs. WE CONCUR: R. L. Tuckett, Justice A similar provision was interpreted by the court in Taylor v. State Farm Mutual Automobile Ins. Co. as follows: . . . we consider it to be designed to protect the insurance company from double exposure for medical payments. Thus, it prevents an insured whose medical expenses have been paid under the Medical Payments Coverage from collecting those mediol expenses once A. H. Ellett, Justice J. Allan Crockett, Justice Henriod, Justice, does not participate herein. I I c |