Hartline v. Hartline

SUMMERS, J.,

concurring in judgment,

with whom LAVENDER and BOUDREAU, JJ., join.

T1 I concur in the judgment the Court today affirms, and in its opinion insofar as it holds that the named insured exclusion contravenes the public policy embodied in our compulsory liability insurance law, and that the exclusion is therefore unenforceable to the extent that it defeats plaintiff's right to recover the minimum liability insurance protection required by statute. I must respectfully disagree, however, with the Court's announcement of new law which (1) declares that, for certain purposes, the coverages of liability and uninsured motorist insurance will be interchangeable, (2) imposes new duties of inquiry on insurance companies, and (8) creates a substantial penalty for their failure to comply with those duties. The solution to the problem of the named insured exelusion which the Court has fashioned seems to me more legislative than adjudicative, a role the courts do not generally take unto themselves.

{2 The Court rejects the opportunity to simply invalidate the exelusion in light of the legislatively established public policy requiring a minimum amount of liability insurance, and instead creates this unusual resolution. We have previously adjudicated in a traditional way questions regarding the validity of certain exclusions in light of the public policy expressed in compulsory liability insurance law, and I would follow that example here.

13 In Looney v. Farmers Insurance Group, 1980 OK 111 , 616 P.2d 1138 , this Court upheld the validity of the household exelusion as well as the named insured exclusion. I agree with the majority that although Looney did involve facts which are quite similar to those before us today, Loo-mey was not an examination of the relevant public policy considerations, and its rationale has been called into question. I agree that it should be overruled.

T4 Since Looney, we have invalidated clauses in liability policies which were designed to get around the statutorily mandated minimum lability coverage. In Equity Mutual Ins. Co. v. Spring Valley Wholesale Nursery, Inc., 1987 OK 121 , 747 P.2d 947 , we held a geographical exclusion limiting cover *775 age to travel within a 200 mile radius invalid as being in contravention of the public policy of the compulsory liability insurance law which, we found, required the minimum coverage for all claims that arise with the state. In Young v. Mid-Continent Cas. Co., 1987 OK 88 , 743 P.2d 1084 , we struck an age exclusion which denied liability coverage if the operator was a non-named insured under age 25 who was not a relative and member of the named insured's household, finding legislative intent to require a minimum of protection to a third party.

4 5 Then, in Nation v. State Farm Ins. Co., 1994 OK 54 , 880 P.2d 877 , we said in. a plurality decision that the household exclusion violated the legislative mandate of compulsory minimum liability coverage for persons in the position of the plaintiff, there the Administrator of the estate of a five-year-old child killed in an accident while riding with his father. For an analysis of the household exclusion, including cases from other jurisdictions, see Nation, supra, 880 P.2d at 878-882 (Summers, J., concurring).

T 6 I would simply hold the named insured exclusion before us today void to the extent of the statutorily required minimum liability coverage. Above this minimum the parties should be free to contract as they see fit; public policy does not require judicial intervention so long as the legislative mandate is satisfied.

T7 I would leave ideas concerning the interaction of compulsory liability insurance coverage and non-compulsory UM coverage to the legislature.