DocketNumber: 93-3665
Judges: <underline>GIBNEY, J.</underline>
Filed Date: 9/19/1994
Status: Non-Precedential
Modified Date: 4/18/2021
At the time of the incident, plaintiff's vehicle was insured by the defendant, Progressive Casualty Insurance Company ("defendant"). The policy provided both liability and uninsured motorist coverage. On April 23, 1993, plaintiff made a claim under both her liability and uninsured motorist coverage for injuries sustained during the incident. The defendant denied coverage under both the liability and uninsured motorist provisions. Thereafter, plaintiff filed this declaratory judgment action. Plaintiff is no longer pressing her claim under the liability provision.
Plaintiff contends that the policy is ambiguous and should be construed in favor of the insured. Further, plaintiff asserts that the exclusionary provision is void as against public policy. In contrast, defendant argues that the provisions are clear and unambiguous and prohibit recovery to the plaintiff for injuries arising out of this incident. The sole issue before this Court is whether plaintiff's uninsured motorist coverage is applicable in this case.
Initially, this Court must look at the language of the uninsured motorist provision. The policy, in pertinent part, provides:
We will pay damages . . . which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of:
1. Bodily injury to a covered person;
`Covered person' as used in this Part means:
1. You or any family member.
2. Any other person occupying your covered auto.
However, no person shall be considered a covered person if the person operating the covered auto does so without the owner's express permission or outside the scope of that permission.
The plaintiff is the named insured on the policy and the vehicle she was operating was appropriately covered by the policy. Defendant asserts that plaintiff is excluded from coverage by the last provision in the definition of "covered person" which states that no person is a covered person if the driver of the covered auto drives without the owner's permission. This Court is persuaded by defendant's contention and finds that the contract is clear and unambiguous and under its plain and ordinary meaning plaintiff is not a covered person on the facts of this case.
Although this Court accepts defendant's interpretation of the policy, it finds such an exclusion, as it operates in this case, void as against public policy. Our Supreme Court has consistently held that provisions of uninsured motorist coverage which conflict with public policy are void. See Pepin, at 22.
General Law 1956 (1989 Reenactment) §
No policy insuring against loss resulting from . . . bodily injury . . . suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle shall be delivered or issued for delivery in this state . . . unless coverage is provided . . . for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles . . .
Section 27-2-2.1. The purpose of the uninsured motorist statute is to protect the named insured against financial loss resulting from the operation of an uninsured motor vehicle. Bartlett v.Amica Mutual Ins. Co.,
Accordingly, defendant's motion for summary judgment is denied and plaintiff's cross motion for summary judgment is granted.
Counsel shall submit an appropriate judgment for entry.
Malo v. Aetna Casualty & Surety Co. , 459 A.2d 954 ( 1983 )
Alfano v. Landers , 585 A.2d 651 ( 1991 )
Ouimette v. Moran , 541 A.2d 855 ( 1988 )
Pepin v. American Universal Insurance , 540 A.2d 21 ( 1988 )
Aetna Casualty & Surety Co. v. Sullivan , 633 A.2d 684 ( 1993 )
O'Hara v. John Hancock Mutual Life Insurance , 574 A.2d 135 ( 1990 )