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Davis v. State Farm Mutual Automobile Insurance Co.

February 23, 1973

DAVIS, RESPONDENT,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, APPELLANT



Appeal from Circuit Court, Multnomah County. Berkeley Lent, Judge.

Frederic P. Roehr, Portland, argued the cause for appellant. With him on the brief were Vergeer, Samuels, Roehr & Sweek, Portland.

Allen T. Murphy, Jr., Portland, argued the cause for respondent. With him on the brief were Green, Richardson, Griswold & Murphy, Portland.

In Banc. Holman, J.

Holman

This is an action upon the uninsured motorist provision of an insurance policy. The trial was to the court upon a stipulated set of facts. Defendant appealed from a judgment for plaintiff in the amount of the policy limits, $10,000.

Plaintiff, while a pedestrian, was injured when a third party intentionally operated an automobile into him. No liability coverage was available to the third party because he intentionally injured plaintiff. Plaintiff was an insured under a liability policy issued by defendant to plaintiff's mother and father, which included uninsured motorist coverage. Defendant is an Illinois corporation authorized to do business in Michigan and the policy was issued in Michigan. Plaintiff's

parents made their home in Michigan and plaintiff resided with them. At the time of the injury, plaintiff was attending college in Oregon. The amount of the damages is $10,000.

The parties do not agree whether Oregon or Michigan law applies. Courts have much difficulty with conflicts of law questions in the tort field. However, this case is an action upon a contract. The contract was entered into in Michigan under the authority of a Michigan statute and was issued to Michigan residents. The place of plaintiff's injury was fortuitous. Under such a set of facts, Michigan law applies. See Restatement (Second) Conflict of Laws ยงยง 188, 204(b); Grayson v. National Fire Insurance Company, 313 F Supp 1002, 1007 (D Puerto Rico 1970).

The issue to be determined by Michigan law is whether uninsured motorist coverage is applicable to an injury inflicted intentionally by a third party, who, by virtue of the intentionality of his act, is uninsured. The provision of the policy in question is as follows:

"To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured motor vehicle * * *." (Emphasis in original.)

Defendant first argues that plaintiff's injury was not "caused by accident" and therefore is not covered by the policy. This is the basis for decisions denying recovery in the only jurisdiction which has concerned itself with this particular subject. See ...


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