State Farm Mutual Automobile Insurance Co. v. John F. Xaphes, Administrator of the Estate of Clara Brown and Jocelyn H. Comtois Wesson

J. JOSEPH SMITH, Circuit Judge

(dissenting):

I dissent. Chief Judge Gibson ruled that the contract was ambiguous, and applying the familiar rule of interpretation contra proferentem,, particularly apt in interpreting contracts of adhesion such as this, see 3 Corbin on Contracts (1960), sec. 559 n. 10, held that the exclusion did not apply to the claim against Mrs. Wesson. The Vermont courts have not directly passed on this language, and I agree with the prediction of Chief Judge Gibson as to how they would rule. I think he is correct, that there is an ambiguity here and that the cases to the contrary are looking at the language too much from the viewpoint of expert draftsmen of corporate indentures and not from the standpoint of the purchaser of insurance or driver of an insured motor vehicle. \

After all, even the company and the courts that would exclude the claim here are not in agreement as to what the language means. On argument, appellant eventually went so far as to claim that *643there is no coverage for injuries to members of the household of the additional insured, as well as members of the household of the named insured. Even Pennsylvania, which agrees with the majority here, won’t go that far. Patton v. Patton, 413 Pa. 566, 198 A.2d 578 (1964). The language is surely not entirely unambiguous. This may not be the same wording as in State Farm’s policy in Heltcel v. Skaggs, 234 F.2d 66 (10th Cir. 1956), but Chief Judge Murrah’s remarks on ambiguity in that case are equally apt here.

Apparently Mrs. Brown, her daughter and Mrs. Wesson took turns driving. Each was an insured. Mrs. Brown and her daughter were in the same household. Mrs. Wesson was not. Had Mrs. Wesson been killed while one of the Browns was driving there would be no problem. Had either of the Browns been killed while the other was driving, the exclusion, if valid and not waived, would bar claim against the company. But family of the insured can be taken to mean either family of the named insured, family of the insured against whom a claim is made, or perhaps even, as the company claims, families of each and every insured. I agree with the trial court that it was meant to be the second. The obvious purpose of the exclusion was to prevent collusion within the household. But why relieve the company of its obligation to the additional insured, Wesson? She was not of the household, and the purpose of the exclusion is not served by refusing to defend her. If she had asked whether there was insurance coverage before sharing the driving surely she would have been assured there was. Why should she be ruined financially by the expense of defense and possible liability payment because the other two insureds resided in the same household and might be in collusion? After all, the Browns paid for a policy covering not only those in the household, but also those driving with permission, and the agent who sold the policy assured Miss Brown that those driving with permission were covered, mentioning no exclusion. There is at the very least an ambiguity here, which under familiar doctrine is to be resolved against the company. I would affirm.