Ny Underwriters v. Sup. Ct. in & for Cty of Maricopa , 104 Ariz. 544 ( 1969 )

104 Ariz. 544 (1969) 456 P.2d 914

NEW YORK UNDERWRITERS INSURANCE COMPANY, a corporation; the Hartford Insurance Group; and Citizens Insurance Company of New Jersey, Petitioners,
v.
The SUPERIOR COURT of Arizona IN AND FOR the COUNTY OF MARICOPA; and the Honorable William Gooding, a judge thereof; and CIVIL SERVICE EMPLOYEES INSURANCE COMPANY, real party in interest, Respondents.

No. 9613.

Supreme Court of Arizona. In Banc.

July 16, 1969.

Snell & Wilmer, by John J. Bouma, Phoenix, for petitioners.

Jennings, Strouss, Salmon & Trask, by John S. Hobbs, Phoenix, for respondents.

HAYS, Justice.

The New York Underwriters Insurance Company, the Hartford Insurance Group and the Citizens Insurance Company of New Jersey, hereinafter referred to as the petitioners, have petitioned this court for a Writ of Prohibition to prevent the respondents, Superior Court of Arizona and Civil Service Employees Insurance Co., real party in interest therein, from proceeding further in cause No. 194178 in the Superior Court. On the 29th day of April, 1969, this court granted an Alternative Writ of Prohibition.

In 1964, Trujillo, riding as a passenger in his own automobile, was injured by the alleged negligence of his driver, Hickey. Trujillo's insurance carrier, Civil Service Employees Insurance Company, brought this action below seeking a declaratory judgment that the policy of liability insurance issued to Hickey by one of the petitioners, was primary and that the policy issued on the vehicle by Civil Service was not involved.

The Civil Service policy provides that the "policy does not apply to bodily injury to the insured or any member of the family of the insured residing in the same household as the insured."

Petitioners assert that the exclusion is contrary to the statutory Omnibus Clause, held in Jenkins v. Mayflower Insurance Exchange, 93 Ariz. 287, 380 P.2d 145 (1963), to be a part of every motor vehicle liability policy. They further assert that in accordance with that case and the Supreme Court decisions in Dairyland Mutual Insurance Co. v. Andersen, 102 Ariz. 515, 433 P.2d 963 (1967), and Universal Underwriters Insurance Co. v. Dairyland Mutual Ins. Co., 102 Ariz. 518, 433 P.2d 966 (1967), said exclusion is illegal and void.

This court has previously defined the purpose of the Arizona Financial Responsibility Act. In Schecter v. Killingsworth, 93 Ariz. 273, 380 P.2d 136 (1963), we stated:

"The Financial Responsibility Act has for its principal purpose the protection of the public using the highways from financial hardship which may result from the use of automobiles by financially irresponsible persons."

In light of that stated purpose, the question is whether or not the statute is intended to restrict the privilege of an individual to contract with his insurance carrier to exclude his own personal recovery under the policy terms in the event of his own injury. We read nothing in the statute which states such a restriction nor do we find ourselves compelled by public policy to so construe this statute.

In the absence of any legislative mandate to the contrary, the rule is generally well settled that policies containing clauses which specifically exclude from coverage injuries sustained by the named assured, are effective to preclude the company's liability to such named assured. 7 Appleman, Insurance Law and Practice § 4409 p. 377 (1962); Frye v. Theige, 253 Wis. 596, 34 N.W.2d 793, 50 A.L.R. 2d 124 (1948); Musselman v. Mutual Auto. Ins. Co., 266 Wis. 387, 63 N.W.2d 691 (1954); Havlik v. Bittner, 272 Wis. 71, 74 N.W.2d 798 (1956); Tenopir v. State Farm Mutual Co., 403 F.2d 533 (9th Cir.1968). See also Capece v. Allstate Ins. Co., 88 N.J. Super. 535, 212 A.2d 863 (1965). On the other hand in the absence of such an exclusion, the preponderance of the authority allows recovery by the named insured, when injured through the negligence of a person covered by the Omnibus Clause. Seaman v. State Farm Mutual Auto Ins. Co., 15 Ill. App. 2d 537, 146 N.E.2d 808 (1958); Howe v. Howe, 87 N.H. 338, 179 A. 362 (1935).

We hold that the exclusion cited above as limited to the named insured himself is not contradictory to the provisions of A.R.S. § 28-1170, and it is not illegal or void.

Alternative writ of prohibition is quashed and the application for a peremptory writ of prohibition is denied.

UDALL, C.J., LOCKWOOD, V.C.J., and STRUCKMEYER and McFARLAND, JJ., concur.