TT&H eNotes: Liability – May 2018
May 01, 2018
TT&H Attorneys Cardile and Criswell publish a second cyber security article in The Legal Intelligencer.
TT&H Attorneys Joe Cardile and Jeff Criswell were recently published in the April 11, 2018 online edition of The Legal Intelligencer, Pennsylvania’s premier legal publication. Their article, entitled “The Continued Fallout from the Uber Data Breach and What it Means in Pa.,” discusses Pennsylvania Attorney General Josh Shapiro’s lawsuit filed against Uber. The lawsuit, a first of its kind in Pennsylvania, was filed under the Pennsylvania Breach of Personal Information Notification Act, which requires that companies alert affected stakeholders of a data breach “without unreasonable delay.” The article follows an earlier piece authored by Attorneys Cardile and Criswell regarding the Uber data breach, which was published in The Legal Intelligencer on February 8, 2018.
Questions about the article, and cyber security issues in general, can be directed to Joe Cardile, at (410) 653-0460 or email@example.com, or to Jeff Criswell, at (412) 926-1443 or firstname.lastname@example.org.
TT&H LAWYERS IN COURT
Suzanne Merrick wins defense verdict in Federal Court suit arising out of large fire loss.
Representing an electrician whose work was alleged to have caused a fire at a strip mall, TT&H Attorney Suzanne Merrick won a defense verdict in Federal Court. The fire was the second largest of the county fire marshal’s career. The loss led to eight separate lawsuits by the mall owner and tenants, in state and federal court, with Suzanne’s client and other contractors named as Defendants. After four years, only the claim of the mall owner against Suzanne’s client remained. The case proceeded to trial in Federal District Court, where the Plaintiff sought an award of stipulated damages of $11.5 million. After eight days, the jury returned a unanimous verdict in favor of Suzanne’s client, finding negligence, but no causation.
Joshua Bovender wins defense verdict in Northampton County involving a Plaintiff who fell through the Defendants’ floor.
Plaintiff was a tenant on a farm where he had lived with his father for over 10 years. He and his father sold the farm to Defendants in 2012, and the Defendants allowed them to continue living on the farm as tenants. After the lease ended, Plaintiff and his father failed to timely vacate the property. The farm property had several outbuildings, including an old dilapidated springhouse. Plaintiff fell through the floor of the springhouse while moving out of the property. He suffered an L3 burst fracture and underwent an instrumented fusion from L1-L5. Plaintiff sued the Defendants, alleging that Defendants knew of the dangerous condition and forced Plaintiff to encounter it by refusing to extend the deadline to vacate the property. The dangerous condition of the floor was not disputed.
At trial, the Court allowed into evidence that Defendants were insured against personal injury, reasoning that the insurance showed Defendants’ control over the springhouse. The jury deliberated for less than 2 hours and concluded that Plaintiff’s negligence was the greater cause of his injuries. Plaintiff’s comparative negligence thus barred any recovery against the Defendants.
Attorneys Rebecca Sember-Izsak and Candace Edgar win defense verdict in negligence action involving shoe bench.
TT&H Attorneys Rebecca Sember-Izsak and Candace Edgar won a defense verdict for a well-known retail client following a four-day jury trial in Federal District Court for the Middle District of Pennsylvania. The Plaintiff, a 71-year-old patron, claimed that she tripped and fell over a shoe bench in the shoe department, “hidden” at the end of an aisle. From the fall, Plaintiff sustained an intertrochanteric fracture of the left hip with surgical repair. Plaintiff suffered from Parkinson’s Disease and claimed that her fall accelerated the disease progression. The jury returned a verdict of no negligence by the store.
SIGNIFICANT CASE SUMMARIES:
PENNSYLVANIA | MD | NEW JERSEY | D.C. | VA
PENNSYLVANIA CASE SUMMARIES
Dyvex Indus. v. Agilex Flavors & Fragrances, Inc.
- United States District Court for the Middle District of Pennsylvania
- 2018 U.S. Dist. LEXIS 32015
- Decided: February 27, 2018
Adverse inference is proper remedy when Plaintiff spoliates portions of fire scene
According to Plaintiff, a fire occurred at its 15,625 square foot manufacturing facility on June 3, 2010 due to fragrance oil supplied by Defendant to Plaintiff that was used to make air fresheners and personal care products. Among other claims, Plaintiff alleged that Defendant failed to warn Plaintiff of the danger that the fragrance oil had a 93 degree flash point. Notice to Defendant was provided 22 days after the fire. Although Plaintiff’s attorney represented to Defendant that the scene would be preserved intact, by June 20, certain items had been moved. On July 29, Defendant’s expert made an initial site inspection and tagged only 9 items of evidence to be preserved for a more thorough inspection on September 23. Thereafter, Plaintiff engaged a contractor to demolish and cleanup the fire damaged building, and preserved most of the tagged items. A tagged portion of a machine was preserved, but other pieces that were attached to the machine were discarded.
Defendant moved for summary judgment, based on spoliation, since Plaintiff prevented Defendant from analyzing the fire scene pursuant to NFPA 921, determining the origin and cause and other possible alternative causes of the fire, and other relevant factors. In the alternative, Defendant requested that multiple facts were found to be undisputed, while other facts were found to be in dispute, including the definition of the “fire scene” and whether entire assemblies needed to be preserved if only one section was tagged. Moreover, there was a dispute that arose over affidavits filed by Plaintiff in opposition to Defendant’s motion and that arguably contradicted the affiants’ deposition testimony.
Plaintiff, who had complete control of the fire scene and authority with respect to the preservation of evidence, had an affirmative duty to preserve relevant evidence when it knew litigation against Defendant was likely, and it was foreseeable that discarding the evidence would be prejudicial to Defendant. Under the unique circumstances of this case, while the Court found no evidence demonstrating that Plaintiff acted in “bad faith,” the Court did find that Plaintiff should have provided immediate notice to Defendant, and preserved the scene until Defendant had an opportunity to inspect it. In this case, there were no exigent circumstances requiring alteration of the scene such as safety concerns. In addition, Plaintiff should have preserved the entire machine and its conglomeration of pieces. The Court found that Plaintiff should be sanctioned because its fault was relatively high, and Defendant was prejudiced. However, because the Court must select the least onerous sanction, after weighing the fault and prejudice considerations, an adverse instruction was the appropriate remedy. Besides, Defendant could cross-examine Plaintiff’s expert witnesses at trial, call its own expert witnesses, and use photographs taken by the Fire Marshall that showed that the subject drum containing the fragrance oil was in a position that arguably indicated it was not even in use at the time of the fire.
Delamarter v. Couglar
- United States District Court for the Middle District of Pennsylvania
- No. 3:16cv665
- Decided: February 20, 2018
Question of punitive damages permitted to go to the jury where commercial truck driver knew he was tired, fell asleep at the wheel, and caused accident.
Defendant Couglar and his employer, Cargo Transporters, Inc. (CT), were sued arising out of a motor vehicle accident in a construction zone on I- 84 in Pike County. Couglar fell asleep at the wheel while operating a tractor-trailer and rear-ended Plaintiff Delamarter, causing injuries. Defendants filed a motion for partial summary judgment on Plaintiffs’ punitive damages claims, arguing as to Couglar that even if he drove while tired, there was no evidence that he had a conscious appreciation of the risk of falling asleep and striking another vehicle, thus he had no “conscious disregard of a known risk” that harm would follow from his actions.
The evidence presented by Plaintiffs against Couglar’s motion revealed that Couglar knew he was sleepy and continued driving nonetheless. He even may have told his passenger that he was “very tired” prior to the accident. Plaintiffs argued that Couglar made a conscious decision to ignore the “grave danger” posed to other motorists and their passengers from driving while fatigued. Couglar understood that it violated Federal Motor Carrier Safety Regulations to operate a truck when fatigued. Couglar knew of lane reductions due to construction, he was driving at night, and there was evidence of speeding.
The Court held that the evidence tended to establish that Couglar knew he was tired when he started driving. According to our Supreme Court, a driver is “chargeable with knowledge that an individual in a state of exhaustion is likely to fall asleep.” Couglar ignored the signs of fatigue, and continued to drive a tractor-trailer at an excessive speed, in the dark, towards road construction. These circumstances could lead a jury to conclude that Couglar acted recklessly. Summary judgment on punitive damages was denied, and the issue is permitted to go to the jury for determination.
Boleslavsky v. Travco Ins. Co.
- Pennsylvania Superior Court
- No. 1227 EDA 2017, 2018 Pa. Super. Unpub. LEXIS 1065
- Decided: April 4, 2018
Superior Court upholds grant of summary judgment to insurance carrier in bad faith UIM action where arbitration panel awarded Plaintiff less than UIM policy limits of $50,000, but more than the insurance carrier’s last settlement offer.
Plaintiff Boleslavsky was in a motor vehicle accident with an unknown driver. Plaintiff had a motor vehicle insurance policy with Travco, which provided uninsured motorist coverage benefits up to $50,000. Plaintiff rejected settlement offers from Travco of $15,000, $20,000, and $25,000, demanding policy limits of $50,000. Pursuant to the policy, the matter proceeded to arbitration, where Plaintiff was awarded $45,000. Plaintiff sued Travco alleging bad faith, and the case proceeded to compulsory arbitration, because Plaintiff’s complaint sought damages of less than $50,000. The arbitrators found no bad faith.
Plaintiff appealed the arbitration award to the Court of Common Pleas, and Travco moved for, and was granted, summary judgment. The Trial Court found that Plaintiff failed to show that Travco lacked a reasonable basis for increasing their settlement offer of $25,000. The Superior Court agreed. The Trial Court had reasoned that the difference between Travco’s last settlement offer and the arbitration award was immaterial for determining whether Travco lacked a reasonable basis. The Trial Court found that after Travco’s review of relevant factors (i.e. medical records, type of accident, costs of treatment), its decision not to increase their settlement offer past $25,000 was reasonable given that Plaintiff “unambiguously” indicated that he would not settle for less than $50,000.
Davies v. Simon Prop. Group, Inc.
- Pennsylvania Superior Court
- No. 1021 WDA 2017
- Decided: March 23, 2018
Superior Court upholds the validity of contractual provision requiring Defendant to pay defense costs incurred by a Co-Defendant.
At trial for a slip and fall on ice and snow, the jury found Defendant Snow & Ice Management Company of PA not negligent, Defendant South Hills Village 25% negligent, and Plaintiff 75% negligent, thus barring Plaintiff’s recovery. South Hills sought reimbursement of attorney’s fees from Snow & Ice Management, pursuant to their contract. The Trial Court entered a verdict in favor of South Hills for attorney’s fees. Snow & Ice Management argued that South Hills was not entitled to defense costs. Snow & Ice Management appealed, argued that the contract language did not require reimbursement of defense costs where Snow & Ice Management was not found negligent.
The Pennsylvania Superior Court affirmed the Trial Court’s decision, finding that Snow & Ice Management had a duty to defend South Hills. The Court found that, by its terms, the contractual provision only excluded reimbursement of the defense costs if “a claim was proximately caused by the sole negligence” of South Hills. Thus, given that the Plaintiff was found to be 75% comparatively negligent, reimbursement of the defense costs was owed under the circumstances.
Vinson v. Fitness & Sports Clubs, LLC
- Pennsylvania Superior Court
- No. 2875 EDA 2016
- Decided: March 23, 2018
Superior Court affirms entry of summary judgment, finding that Defendants’ Exculpatory Clause, which provided a release and waiver of liability and indemnity, was valid and did not contravene public policy.
Plaintiff became a member of L.A. Fitness in Huntingdon Valley, Pennsylvania on July 4, 2012. Plaintiff signed a three-page Membership Agreement which contained an Exculpatory Clause providing a release and waiver of liability and indemnity to Defendants. Plaintiff acknowledged signing the agreement containing the Exculpatory Clause, but does not remember reading the agreement. On July 28, 2015, Plaintiff filed a complaint against Defendants after she tripped and fell on a wet floor mat at L.A. Fitness, causing personal injuries. Defendants filed a Motion for Summary Judgment maintaining that the Exculpatory Clause precluded recovery. The Trial Court granted Defendants’ Motion. Plaintiff appealed, arguing that the Exculpatory Clause was invalid because it contravened public policy.
The Superior Court affirmed. The Court noted that exculpatory provisions in contracts are valid where three conditions are met: first, the clause must not contravene public policy; second, the contract must be between persons relating entirely to their own private affairs; and third, each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion. The Court further found that exculpatory provisions violate public policy only when they involve a matter of interest to the public or state. Such matters include the employer-employee relationship, public service, public utilities, common carriers and hospitals. Here, the Court found that Plaintiff voluntarily engaged in recreational activity, attending the gym, and was subject to Defendants’ Membership Agreement containing the Exculpatory Clause, an agreement between private parties. Plaintiff did not identify any statutory provision, administrative regulation or legal precedent to support her claim that the Exculpatory Clause was unenforceable. Instead, Plaintiff relied on mere suppositions of the public interest, which are insufficient to invalidate a contract provision for violation of public policy.
MARYLAND CASE SUMMARIES
Seaborne-Worsley v. Mintiens
- Maryland Court of Appeals
- September Term 2017, No. 26
- Decided: April 20, 2018
The doctrine of imputed contributory negligence does not apply when the owner-passenger seeks compensation for injuries suffered in an automobile accident where the owner-passenger is not a fault.
Plaintiff Seaborne-Worsley and her husband drove to a restaurant in Parkville, Maryland to pick up dinner. Ms. Worsley was the passenger and sole owner of the vehicle. Her husband stopped the car perpendicular to a handicapped parking space and entered the restaurant, leaving Ms. Worsley in the front passenger seat. Defendant Mintiens did not see the Worsley vehicle and backed his truck into it. Ms. Worsley filed suit against Mr. Mintiens in the District Court of Maryland for Baltimore County seeking compensation for bodily injuries. After a trial, the Court found that Ms. Worsley’s husband was contributorily negligent for his wife’s injuries, because he failed to park in an open parking space and that contributory negligence was imputed to Ms. Seaborne as the owner-passenger of the vehicle. The Circuit Court of Baltimore County upheld the District Court’s decision. The Court of Appeals granted Ms. Seaborne’s writ of certiorari petition.
The Court of Appeals held that in the context of an automobile accident, the doctrine of imputed negligence does not apply to deem an owner-passenger of a motor vehicle contributorily negligent based on the negligence of a permissive driver and bar the owner-passenger’s recovery from a negligent third party. The Court reasoned that the imputed negligence doctrine was originally based on the presumption that the owner of a vehicle, although not behind the wheel, has control or the right to control the vehicle based on the theory of vicarious liability. Also, they are the party more likely to be able to cover the risk through insurance. Since that time, statutory law and insurance coverage has changed. Now, liability insurance is a condition to registering a car in Maryland, uninsured motorist coverage is required, and insurance coverage now extends to permissive drivers. Further, “owner control” is a fiction. Although the owner has the right to control a vehicle when they are present, they may not have operational control of the vehicle. Therefore, the presumption of actual control over and responsibility for a permissive driver is antiquated. An owner-passenger may still be contributorily negligent; however, the Court of Appeals is disallowing the presumption that the owner-passenger is contributorily negligent because the permissive driver is negligent.
Rodriguez v. Cooper
- Maryland Court of Appeals
- September Term, 2017, No. 27
- Decided: April 12, 2018
The statutory cap on noneconomic damages in personal injury and wrongful death actions applies to judgments against the State or State personnel even where the State personnel are found to have acted with gross negligence.
State prisoner, Parker, was murdered by a prison inmate while on a prison transport bus. Parker’s estate and parents brought suit against the State of Maryland and various State officials and employees in the Circuit Court for Baltimore City. The estate obtained a judgment against the State based on a jury’s finding that certain correctional officers were negligence and one correctional officer was grossly negligent.
The Trial Court limited the judgment against the State pursuant to the statutory cap under MTCA, and limited the judgment against the correctional officer to the cap on noneconomic damages in CJ § 11-108. The estate appealed, seeking to avoid the application of the caps as well as the doctrine of sovereign immunity.
The Court of Appeals held that the Trial Court’s decision to limit the estate’s judgment against the correctional officer was correct because “nothing in the legislative history suggests that the General Assembly intended to single out State employees for exclusion from CJ § 11-108, or the cap on noneconomic damages. The Court also held that the Trial Court was correct in finding that the State does not waive sovereign immunity in a tort claim by providing legal representation to State personnel.
NEW JERSEY CASE SUMMARIES
Krzykalski v. Tindall
- New Jersey Supreme Court
- No. A-55 September Term 2016, 078744
- Decided: April 17, 2018
Jury could apportion fault between Defendant and John Doe, because the parties had acknowledged John Doe’s role in the accident, Plaintiff’s insurer was aware of the litigation, and Plaintiff had notice that the Defendant was asserting that John Doe was the cause of the accident.
Plaintiff appealed from the Appellate Division’s order affirming the jury verdict finding Defendant and a John Doe Defendant negligent for a motor vehicle accident and apportioning fault between them. Defendant’s car was behind Plaintiff’s vehicle with both making left turns, when another vehicle to the right of both cars unexpectedly cut off the left-turn lane. Although Plaintiff was able to stop his vehicle, Defendant rear-ended Plaintiff’s vehicle. Plaintiff suffered serious injuries and filed an uninsured motorist claim with his insurer. Plaintiff also sued Defendant and the driver of the other vehicle as a John Doe fictitious party. Defendant asserted third-party negligence as a defense and cross-claimed for indemnity and contribution from any Co-Defendants. At trial, the Trial Court included John Doe on the verdict sheet over Plaintiff’s objection, and the Trial Judge instructed the jury to apportion fault between Defendant and John Doe, if they found both negligent. The jury returned a verdict finding Defendant three percent negligent and John Doe 97 percent negligent. The Appellate Division affirmed, ruling that an alleged tortfeasor does not need to be an identified party for his or her negligence to be determined by the jury.
The Supreme Court affirmed, first noting that the Comparative Negligence Act and Joint Tortfeasors Contribution Law required juries to allocate negligence among tortfeasors based on the evidence, including those tortfeasors who settled, if the plaintiff had notice that remaining defendants wanted liability so apportioned. The Court also noted that plaintiffs could sue “John Does” whose identities were unknown, and found that judgments apportioning liability to John Does had been affirmed, previously. The Court ruled that the jury in this case could apportion fault between Defendant and John Doe, because the parties had acknowledged John Doe’s role in the accident, Plaintiff’s insurer was aware of the litigation, and Plaintiff had notice that the Defendant was asserting that John Doe was the cause of the accident.
Kurc v. All Star One
- New Jersey Superior Court, Appellate Division
- 2018 N.J. Super. Unpub. Lexis 915
- Decided: April 19, 2018
The absence of evidence of actual or constructive notice is fatal to a Plaintiff’s claims of premises liability.
Plaintiff Kurc accompanied her granddaughter to cheerleading practice at Defendant All Star One’s facility in Egg Harbor Township. At deposition, Plaintiff testified she entered the front of the building, and walked to the rear seating/viewing area along a walkway designated for non-athletes. After viewing her granddaughter’s practice, Plaintiff walked toward the front to meet her waiting granddaughter on the same walkway near the rear reception area. She encountered a young child athlete sitting on a separate moveable mat on the walkway, blocking her path. To pass the seated child, Plaintiff stepped off the walkway and onto the spring mat used for cheerleading. While up on the cheerleading mat, Plaintiff saw some young girls approaching, so she turned around to step off the mat, which was raised about four inches. The mat moved out from underneath Plaintiff, causing her to fall and injure her wrist. Defendants moved for summary judgment on the grounds that Plaintiff failed to offer any proofs establishing Defendants’ were negligent. The Trial Court granted summary judgment, and Plaintiff appealed.
The Appellate Court affirmed reasoning that Plaintiff failed to prove that the Defendants had actual or constructive knowledge of the dangerous condition that caused the accident, i.e., a child blocking the walkway. There was no evidence that Defendants, or any of their employees, saw the child sitting on the on the walkway, heard complaints about the child’s presence there, or had any knowledge that the child was blocking the walkway. Analyzing whether Defendants had constructive notice, the Court noted the record was devoid of evidence to support constructive notice. Plaintiff simply suggests because she fell near the rear reception desk, the receptionist had constructive knowledge of the child on the walkway and, thus, a duty to move the child. However, Plaintiff proffered no evidence showing the receptionist knew or should have known before Plaintiff’s fall about the child’s position. Moreover, there was no evidence about how long the child was there, and, thus, the amount of time Defendant had to discover and remedy the situation. Concluding its analysis of notice, the Appellate Court cited Arroyo v. Durling Realty, LLC, 433 N.J. Super. 238, 243, 78 A.3d 584 (N.J. Super. Ct. App. Div. 2013), “[t]he absence of evidence of ‘actual or constructive notice . . . is fatal to plaintiff’s claims of premises liability.’”
Pak v. NJ Fitness Factory, Inc.
- New Jersey Superior Court, Appellate Division
- No. A-5084-16T2
- Decided: April 19, 2018
Superior Court reverses entry of summary judgment on the basis that the waiver form did not exculpate fitness club from liability.
Plaintiff Pak participated in an exercise class at NJ Fitness Factory. She was required to sign an acknowledgement of liability waiver form. The waiver form was limited to the exercise class and did not address Pak exercising at her own risk or exculpating the Fitness Factory for injuries sustained while engaging in strenuous activity. The Fitness Factory had a policy of keeping treadmills running after use. Pak unknowingly stepped onto a running treadmill and sustained injuries.
The Trial Court granted summary judgment concluding that the exculpatory clause in the waiver form barred Pak’s claims. On appeal, Pak argued that the waiver form was unenforceable because it did not contain language that she agreed to engage in strenuous activities at her own risk, and that the waiver form did not attempt to exculpate the Fitness Factory for injuries caused from the use of fitness equipment.
The Superior Court reversed the grant of summary judgment. The Court held that Pak did not engage in any activity involving an inherent risk of injury. Pak followed the instructor’s direction and unknowingly stepped onto a running treadmill. The Court noted that the Trial Court erroneously relied upon a similar case exculpating a fitness center where the plaintiff was involved in strenuous activity and injured herself while riding a spin bike. The Court noted Pak was injured while engaged in non-strenuous activity.
DC CASE SUMMARY
Tripmacher v. Starwood Hotels & Resorts Worldwide, Inc.
- United States District Court for the District of Columbia
- 277 F. Supp. 3d 104
- Decided: September 29, 2017
D.C. requires expert testimony to prove standards of care in tort cases, and failure to designate an expert is cause for summary judgment.
Plaintiff tripped and fell at a wedding reception and suffered severe injuries. She sued the venue owner for failure to keep the premises reasonably safe based on the construction of the ramp, over which she tripped, and the dim lighting . Judge Leon entered a scheduling order setting deadlines for various aspects of the litigation, including the designation of expert witnesses. Plaintiff failed to designate an expert witness twice, and, the venue owner filed a motion for summary judgment arguing that Plaintiff could not make out a case for premises liability without an expert on the standard of care.
The Court granted the venue owner’s motion, and entered judgment against the Plaintiff. Judge Leon noted that DC Courts often require expert testimony to prove the standard of care in cases where the breach alleged is derived from distinct scientific, professional, or occupational knowledge beyond the understanding of the lay jurors. He further found that expert testimony is unnecessary only if the negligence alleged is based upon a duty which exists within the knowledge of a lay people. Judge Leon stated that while lay people may have experience with crowded wedding receptions, they do not possess knowledge of how to design facilities to safely handle large groups or locate accessibility features. Without this knowledge, the jury would be required to speculate as to the appropriate standards of care regarding the wheelchair ramp, and proper lighting.
VIRGINIA CASE SUMMARY
Levine v. Employers Ins. Co.
- United States Court of Appeals for the Fourth Circuit
- No. 17-1342
- Decided: April 11, 2018
Courts must look to the plain language of the declaration page in an insurance policy when determining whether a third party is covered under UIM coverage.
Purnell Furniture hired Plaintiffs as independent furniture delivery contractors. Purnell requested that Plaintiffs perform a delivery job last minute, which prevented them from obtaining an appropriate vehicle, so Purnell permitted Plaintiffs to use a rental from Penske. During the delivery, Plaintiffs pulled over to inspect the security of the furniture and were hit by another vehicle, killing one Plaintiff and injuring the other. Purnell had a motor vehicle insurance policy, including under/uninsured motorist (UIM) coverage. However, the policy only applied UIM coverage to covered vehicles, which did not include the rented Penske truck. Plaintiffs sued the other driver for negligence and Employers Insurance Company of Wausau for a declaration as to UIM coverage under Purnell’s policy. The District Court held the plain language of Purnell’s policy did not apply to the rental truck. Plaintiffs appealed.
The Court affirmed the District Court’s decisions, noting that the declaration page of Purnell’s policy limited coverage to “owned autos only.” The Court further stated that Virginia’s public policy on UIM coverage serves to protect an insured, his family, and permissive users of his vehicles against injury by uninsured motorists, not to cover every uninsured vehicle for everyone just because the insured is present.