dissenting:
I disagree. While the evidence differed as to what coverage was to be written, a study of the transcripts and the exhibits leads me to the conclusion that the only request made was for coverage on the service station. The application describes the business as a “gas station” and there does not appear to be anything to indicate that insurance was requested or intended for the car wash facility. From the evidence it appears that the car wash facility was owned by Cackovic and insured by him with the Continental Casualty Company and that Bennett simply supervised it.
Although Bennett testified that “he wanted the whole thing covered” he also testified, “I didn’t specifically say anything about the car wash.” He also testified, “I asked whether the car wash was covered after the claim in 1972. I don’t think I ever went out and asked Mr. Moran before Mrs. Davis’ accident whether the car wash was covered.” Here the policy is a standard form and simply does not cover the operation of a car wash. Moreover, previous claims against the car wash had been presented to Cackovic’s agent (Continental Casualty) not to Bennett’s agent (Great Central). It was the Davis claim on which Bennett received the notice of attorney’s hen which activated Bennett to make claim against Great Central. Previously, it appears from the evidence, the car wash had been considered by both Bennett and Cackovic as Continental Casualty’s liability. It was, therefore, not a case of an oversight — it was possible that neither Bennett nor Cackovic nor the agent, Moran, considered that Bennett had an exposure in connection with the car wash. In my opinion the judge’s holding was incorrect.
This case does not involve a question of waiver of a condition, but rather a condition of extending the coverage to cover the car wash. As I understand the judge’s remarks in rendering judgment he did not base his decision on an interpretation of the policy as actually written, but rather on the coverage the agent should have provided in the light of the facts divulged to him by the insured and the owner, Cackovic. Since the agent knew there was already a liability policy in Cackovic’s name covering the car wash and knew that Cackovic owned the car wash building and the business, I do not think the failure of the agent to make a further inquiry as to whether Bennett should not also have his own policy as supervisor of the car wash was such negligence on the agent’s part as to create a new coverage which the company did not intend to write at the time it issued its policy and thus make the company liable.
In this connection see Annot, 1 A. L. R. 3d 1139, 1148-50 (1965) — the case of Jennings v. Bituminous Casualty Corp., 47 Ill. App. 2d 243; also, Commonwealth Insurance Co. v. O. Henry Tent & Awning Co. (7th Cir. 1961), 287 F.2d 316, cert. denied, 386 U.S. 826, 7 L. Ed. 2d 30, 82 S. Ct. 45, (applying Illinois law); also, Spence v. Washington National Insurance Co., 320 Ill. App. 149; in addition, the Wisconsin cases of Rosenthal v. Insurance Co. of North America (1914), 158 Wis. 550, 149 N.W. 155, and Summers v. Oakfield Town Mutual Fire Insurance Co. (1944), 245 Wis. 40, 13 N.W. 2d 518.
The “ambiguity” referred to by the majority is, in my opinion, farfetched. The operation of a car wash facility is not necessary or incidental to the operation of a service station merely because they are on the same premises and owned by the same person. They are separate and independent of each other and neither has anything to do with the necessary operation of the other. They are associated merely because it is economically attractive to operate the two businesses on the same premises. The two operations are associated with but not incidental to each other. Many, if not most, service stations do not operate a car wash facility.
Actually, the argument is that the presence of the car wash facility created an ambiguity as to what coverage the insured intended. This “ambiguity” is derived from the trial court’s opinion that there was a “need” for such coverage and the insured is deemed to have intended to buy whatever coverage he needed for full protection. But, the insured’s need for the coverage cannot create an ambiguity as to what the contract was intended to provide.
The insured got the coverage he applied for on the application, and the argument as to whether or not Bennett needed coverage on the car wash operation as well as Cackovic needing coverage, should not operate to create coverage because of the agent’s failure to insist on coverage Bennett did not think he needed or wanted at the time the policy was issued.
I would reverse the trial court.