(dissenting) :
With deference to the views of the majority I dissent.
The majority holding is based upon a claimed ambiguity in the exclusionary clause of the policy. In actuality the ambiguity does not exist; the policy language is clear. The two possible interpretations set forth by the majority are (a) that the term “automobile business” applies to the business of the employer (the hotel here) and (b) the term “automobile business” applies to the business of the driver of the automobile (Frank Nottage). The language of the exclusionary clause is:
“ * * * an owned automobile while used by any person while such person is employed or otherwise engaged in the automobile business. * * * ”
To my mind the words used by any person while such person is employed or otherwise engaged in the “automobile business” can refer to nothing except the business of the driver of the car, that is the person using the owned automobile. The business of the employer of the driver is simply not referred to in the exclusionary clause. The cases cited by the majority opinion are not apposite because the exclusionary language in those cases focuses upon the use to which the automobile is put as opposed to the occupation of the driver. I cannot put the case any clearer than did the trial judge:
“Under the policy, the emphasis is not placed upon the use to which the car is put rather upon on the activity of the person using the owned automobile. In the instant case, Nottage was unquestionably ‘employed or otherwise engaged’ in the ‘occupation of * * * parking automobiles’.”
I express no quarrel with the universal rule that contractual ambiguities in insurance policies must be resolved in favor of the insured and against the insurer. The rule simply has no application to the policy before us. The district judge was correct when he granted summary judgment for the garnisheeappellee. I would affirm the judgment below.