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Show TH! PAGE FOUR Births SOUTH 1660 North, W. daughter Paul 267 Oman, Utah St 608 Center St. Bountiful, daughter W. Mr. and Mrs. to William J.Randall Staples 817 W. 700 North, son Mr. and Mrs. Paul Oman, 267 Em etux Anna M les, 677 Martinus daughter 685 Center St. Bountiful, daughter Mr. and Mrs. J. Randall Stap817 W. 700 No, son Mr. and Mrs. Mike Fote 8,1085 E. Millbrook Way, Bountiful, Mr. and Mrs. Iyle Haven, 128 E. 2600 South, Bountiful, son Mr. and Mrs. Del Jensen, 1923 S. Main, Bountiful, son Mr. and Mrs. Ross Quist, Tooele, daughter Mr. and Mrs. Leland Curzon, 1000 So. Woods Cross W. daughter Mr. and Mrs. Douglas Parkin PI, Centerville 1010 Wilmar daughter Mr. and Mrs. Robert Chandler 395 S. 395 700 East,Centervl? lie, daughter Joseph Liddle Mr. and Mrs. 3939'So.5t50 West,Hunter, daughter Mrs. Rulan Homer, 718 S. Orchard Dr. Bountiful, son Mr. and Mrs. Dennis Parkin, 2M W. 160 North, daughter Mr. and Mrs. Heal Gunnarsen 29 S. 111 East,Farmington, Mr. and son Mr. and Mrs. Thomas Curtis, Bountiful, 521 E. 2150 So. daughter Bergreen etux 248 Judith 24-- Ezma Lewis to Charles J Lewis etux Lewis to Lewis etux A Charles J 257 R to Joyce Grover to 714 Carl J Keester Utah Wool Pulling Anthony Saracino American Real Est 324 to Marketing 326 to Marketing Richard W Ringwood etux to Allied Sheet Metal James A Thompson etux to Allied Sheet Metal 785 Edzell Glen Beckstead etux to D Marcel Beckstead etux Melvin 801 to Green A etux to Eva Pearce E Gwen Singleton Gwen Singleton etal David 813 etux to etux G Pearson David McDougal R to Frank D Laura to William J Brady etux Brower etux L L Henderson Henderson Vera Mae Gygi to Gerald Alma Gygi etux . Vera Mae Gygi to Alma Gygi etux 850 WE CONCUR: Gerald to 853 Vera Mae Gygi Gordon Ernest Gygi E. R. Callister, 856 Vera Mae Gygi to Gordon Ernest Gygi etux 892 N Paul Cartwright to Candice Cartwright William E Fredrick-so- n etux to Gerald Greeze etux to 934 Ivan J Jensen etux to Lee Ferrell etux 942 405 Edna S McClement Edna S McClement etal 410 Wilhelraine Thomas to Wilhelmine Thomas etal Geo W Breinholt Gordon L Breinholt etux Ivan Jensen etux to Lee Ferrell etux to Bud B St K Bailey Const Investment Porfirio Campos to Jayne Campos 943 Jayne Campos to Edmond Evans etux 2585 etux to Salt Lake County 954 Ray J Crook etux to Afco Development 955 Elaine J Anderson 46 Robert V Hodgen to Robert H Hodgen etux 956 47 957 4S5 Ralph 48 Sheffield A Robert to James B Hodgen Fugett etux E Robert V. Hodgen to Robert H Hodgen etux . to Afco Development Bernard S Twitchell etux to Afco Development Roy E Blakemore etux to Afco Development 958 Karl C Dean etux to Afco Development Bessie Bradley to Charles Bradley 959 Russell R Robison etux to Florence Jones 963? 964, 965 4C2 473 487 Miller Finance to Frederick 534 Murray etux E Rosamond Thorstrom etal to Rosamond Thorstrom 541 McGee & etui Hogan Street Ino Henry Slaugh etux to Oliver etux L Gildeo Elroy J Christensen etux to Afco Development James T Kyriopoulos to Afton Kyriopoulos 2586 025 Machine Works to Union 601 Appeal from a judgment entered by Judge Sorensen, who apparently was called in to preside at a jury trial to determine but one issue: Whether one Brown, who had collided with a car in which respondent Schippers was riding, and against whom the latter had obtained a judgment, was an "uninsured motorist" covered under a policy issued by State Farm to Schipper's father, who had loaned his car to her and which she. was driving at the time of the collision with Brown, and in whjlch she was injured. The judgment is affirmed, except as to the interest awarded, which was computed at 8 from the date of Schipper's judgment against Brown, but which, in our opinion, should have been computed from the date of judgment at said rate against defendant, State Farm, the date of judgment against the latter. No costs on appeal are awarded against any of the parties, and the other points urged on appeal,' other than the sole issue mentioned above, decided by the jury to the effect that Brown was an "uninsured motorist, " are. rejected as being either untimely or unmeritorious. The facts supporting plaintiff's case, which were reasonably believable by the jury, indicate that she sought out defendant, State Farm, whose representatives denied liability. Bending her to the Farmers Automobile Insurance Company for solace, saying the latter was on the risk, which latter said it was not, and that State Farm was, which latest latter again said it was not, - which, need we say more? Friendliness, empathy of the milk of human kindness were not legal or argumentative condiments here, nor phrases in the parchment of disclaimer which apparently were delivered her. Such circumstances well may have driven her to the courts, - with no necessity for return for fruitless debate, - and we think the appellant hardly ran press with distinction its contention that plaintiff did not in writing pursue the fine print as to notice of claim that on more than one occasion verbally had been urged by plaintiff just as eloquently at had she made her plaint, perhaps in words lacking in conformity with the niceties of those used in the pitiless written word. We think that after having received the emphatic that the record reveals were given her as a supplicant, she need not have plainted further save in the courthouse. It appears that without indulging the somewhat convincing arguments in this case anent who was "primary1' on the risk, who was 'Vvcf ss" on the risk, who "failed"' to give notice of rights under the provisions of a policy, -the jury, without hesitation, held in essence that the defendant, an a fact, was on the risk in this case under an "uninsured motorist" clause in its policy,' -which Judge Sorensen affirmed, both of which conclusions we approve. "no-noo- 6" Marion 826 404 to Jr to 2585 920 372 Maris Curtis to Richard A Curtis etux 406 Jr Hilton W aka Jas W, Hilton Floyd A Hilton 905 Max 331 Sheryl Roberts Wanda 745 Newton Burke Jolly Roberts Gene 738 to L. M. Cummingfl, Clerk Jr. , Chief Justice J, Allan Crockett, Justice etux Anthony Saracino American Real Estate 330 Bentine etux L M to Virginia 847 319 L M Briant G Badger etux to Cherrul M Lund etal to Virginia N Burke Bentine etux 713 Farmeri Automobile Insurance HENRIOD, Justice; Richard Christenson etux to Herbert H Halliday Tr 704 Personalized Homes 840 310 H January 29, 1974 The State Farm Mutual Automobile Insurance and The Company, corporations, Defendants and Appellants. dba 686 Englewood Heights Advanced Investment to Nielsen etux Kuhn Real Est to Halliday, Tr L H Coombs Herbert B Doombs H Lynn No. 13343 FILED Parker etal etux to Kent 800 Quit Claim Deeds 208 Joseph Daniel Wade Jr etux to Boyd G Credit Parker to Duane E W Sandra J. Schippers and Sandra L. Coryell, Plaintiffs and Respondents, Caldwell D 620 758 FRIDAY, FEBRUARY In The Supreme Court Of The State Of Utah 603 William Russell Crismon to Phyllis T Crismon Parkin , Bountiful . Mr. and Mrs. RECORD Quit Claim Deeds DAVIS COMMUNITY Mr. and Mrs. Dennis 2kl DAILY C Isaac dellerrera to Isaac deHerrera Jr etal 047 Paul W Buehner etal to Wagner Warehouse Partnership 052 Arthur etux to William Jamieson R V Beck R. L, Tuckett, Justice ELLETT, Justice: (Concurring and disserting) The plaintiff's car was insured by Farmers Automobile Insurance. ComWhile her car was in the garage being repaired, her father permitted pany. her to use his car, which was insured by the State Farm Mutual Automobile Insurance Company. Brown, the driver of the car with which plaintiff collided, was uninsured, and the question here involved is which insurance company will pay for plaintiff's damages. Both her policy and that of her father had "Uninsured Motorist" coverage. This court has held that the insurance coverage on the car being driven 1 The trial court correctly held is primary and that of the driver is excess. that the primary coverage was under the policy issued by State Farm Mutual Automobile Insurance Company on the car which plaintiff was driving and that it was liable for all damages which plaintiff sustained up to its maximum coverage. In the instant matter not only was a summary judgment granted to plaintiff against State Farm holding it primarily liable, but a judgment also was enterf-.against it for $10,962. 19 without any evidence being given upon whichthe judgment could be based. It was apparently based on the fact that $10, 000 was the limit of the uninsured motorist coverage, plus interest. The issue of negligence, if any, on the part of the uninsured motorist and that of contributory negligence on the part of the plaintiff and the amount of damages, if any, sustained by th plaintiff has never been determined in this case: and since State Farm is entitled to any defense available to the uninsured motorist, I cannot see how the money part of the judgment can be affirmed.. In another action the plaintiff had obtained a default judgment against Brown for a sum in excess of the policy limits of the uninsured motorist coverage, but this judgment cannot be binding upon State Farm because it never was a party to the action wherein the default judgment was rendered, nor could it have' been made a party under the holdings of this court. This court held in the case of ' Christensen v. Peterson that an insured could not join its insurer in an action against an uninsured motorist. This court has also held that an insurer could not intervene when the insured sued an uninsured motorist. I did not agree with these decisions, but a majority of this court did, and they are the law of this state. .Since it was not possible for State Farm to get into the action against Brown, it would be a denial of due process to charge it with a judgment to which it was not a party and had not had its day in court either as to liability or as to damages. Neither insurance company is obligated to represent the insured in an action against another party defendant. Its duty to protect the insured arises only when that insured is sued. The insurer in this case stands in the position of the uninsured motorist. It owes no duty to its own insured who seeks recovery under the provisions of the policy for damages occasioned by the uninsured motorist. I concur in holding the policy of State Farm to be the primary coverage for plaintiff but dissent from affirming the summary judgment for the money damages. I would remand the case with directions to try the issues of liability of Brown and damages sustained by the plaintiff. No costs should be awarded. 1. Lyon v. Hartford Accident and Indemnity Company, 25 Utah 2d 311, 480 P. 2d 739 (1971); Christensen v. Farmers Insurance Exchange, 21 Utah 2d 194, 443 P. 2d 385 (1968); Russell v. Paulson, 18 Utah 2d 157, 417 P. 2d 658 (1966). 2. 25 Utah 2d 411, 483 P. 2d 447 (1971). 3. Kesler v. Tate, 28 Utah 2d 355, 502 P. 2d 565 (1972). 1. 1974 |