McPhee v. Tufty

NEUMANN, Justice,

concurring specially.

[¶ 54] I concur in the result reached by the majority. I do not agree with, and I respectfully dissent from, paragraph 32 of the majority’s opinion, holding Curtis’s furnishing the Toyota to Christopher cannot constitute a “use” of the vehicle under an insurance policy. If this Court is going to abolish the possibility of insurance coverage for liability imposed by the family use doctrine, we should do it in a case in which that specific issue has been briefed and argued.

[¶ 55] I nevertheless concur in the majority’s result, based primarily on the language in the insurance contract. The contract provides, as an exclusion under Part A-Liability Coverage:

B. We do not provide Liability Coverage for the ... use of:
3. Any vehicle, other than “your covered auto,” which is:
b. furnished or available for the regular use of any “family member.” However, this exclusion (B.3.) does not apply to your ... use of any vehicle which is:
b. furnished or available for the regular use of a “family member.” (Emphasis added.)

[¶ 56] I believe the exclusion clearly is intended to address the possibility of liability for an accident just like the one in this case. The exclusion says the policy does not cover a vehicle furnished for the regular use of a family member unless it is a “covered auto.” In this case, I think everyone agrees Christopher falls within the policy’s definition of a “family member.” Therefore, if the Toyota is not a “covered auto” the exclusion applies.

[¶ 57] Justice Maring argues, in her dissent, that the exception to the exclusion, excepting “your” use of a vehicle furnished for the use of a family member, creates ambiguity, and she would therefore construe the policy in favor of the insured as providing coverage. This Court has said when two good arguments can be made for either of two contrary positions as to the meaning of a term in a document, an ambiguity exists. Garofalo v. St. Joseph’s Hospital, 2000 ND 149, ¶ 7, 615 N.W.2d 160. The dissent’s argument, *403however, requires us to accept as reasonable an interpretation of the exception that completely gobbles up the exclusion, making it meaningless. The dissent argues that B.3. excludes the furnishing of a vehicle for the regular use of a family member, but grants an exception for the furnishing of a vehicle for the regular use of a family member. That is not a reasonable interpretation that leads me to find an ambiguity.

[¶ 58] The question then is whether the Toyota is a covered auto or a vehicle other than “your covered auto” under the exception. To answer that we must look to the definition of “your covered auto,” and to the “newly acquired vehicle” provision of the policy. In its Definitions section the policy states:

J. “Your covered auto” means:
1. Any vehicle shown in the Declarations.
2. Any of the following types of vehicles on the date you ... become the owner:
a. a private passenger auto; or
b. a pickup or van.
This provision (J.2.) applies only if:
a. you ... acquire the vehicle during the policy period;
b. you ask us to insure it within 30 days after you ... become the owner; and
c. with respect to a pickup or van, no other insurance policy provides coverage for that vehicle.

[¶ 59] The majority holds that, while the trial court did not err in finding Curtis Tufty had acquired an ownership interest in the Toyota for the purposes of provision J.2., Curtis and Debra Tufty, as named insureds, failed to make a specific request for coverage under the AMCO policy within thirty days, and therefore the newly acquired vehicle provision never took effect. The majority holds there can be no coverage under the newly acquired vehicle clause unless there is a specific request for such coverage. The dissent argues this holding is contrary to the law in a majority of jurisdictions in this country, that most jurisdictions have held there is automatic coverage for thirty days after acquisition of a new vehicle, and that a request to the company is necessary only if the coverage is to be extended beyond the thirty days.

[¶ 60] Because of the specific language in AMCO’s policy, I would apply in this ease the reasoning in Farm & City Ins. Co. v. Anderson, 509 N.W.2d 487 (Iowa 1993). In that case the Iowa Supreme Court rejected the majority rule. Construing identical contract language, the Iowa Court stated:

The policy provides that a newly acquired vehicle becomes a “covered auto” “only if”: (1) the insured acquires the vehicle within the policy period; and (2) the insured asks the company to insure it within thirty days after the insured becomes the owner. The insured’s request for coverage is a condition that must be met in order for the newly acquired vehicle to be a “covered auto” under the policy. We fail to see how a reasonable person could read this provision to mean anything else.

Anderson, at 491. Like the Farm & City policy in the Iowa case, the AMCO policy in this ease clearly and unambiguously affords coverage for a newly acquired vehicle “only if’ the insured asks AMCO to insure it within thirty days after becoming the owner.

[¶ 61] In Anderson, however, the insured had made no effort to contact the insurance company during the thirty-day period. In this case, the Toyota was acquired on November 12, 1994, and Debra Tufty contacted the insurance agent with information of the accident on November 27, 1994, less than thirty days later. In addressing this contact the trial court found the agent was never asked to add the Toyota to Curtis and Debra Tufty’s AMCO policy, prior to November 27, 1994, but that the report of the accident somehow constituted a request for coverage *404under the AMCO policy. The finding that the November 27, 1994, contact was a request for coverage under the AMCO policy is not supported by any evidence in the record. It is clearly erroneous. The trial court then also erroneously concluded as a matter of law that the newly acquired vehicle clause in the AMCO policy is ambiguous and must therefore result in coverage even if the Tuftys did not make a specific request for AMCO coverage on the vehicle within thirty days of the purchase.

[¶ 62] The newly acquired vehicle clause in AMCO’s policy is not ambiguous. The trial court’s finding that Debra Tufty requested coverage under the AMCO policy is clearly erroneous. Because AMCO was not asked to insure the Toyota, as unambiguously required by the newly acquired vehicle clause, the Toyota never became a “covered vehicle” under the AMCO policy, and it is therefore excluded from liability coverage by the terms of the policy.

[¶ 63] I therefore concur in the result reached by the majority.

[¶ 64] William A. Neumann.