Dairyland Insurance v. Ward

Hamilton, J.

(dissenting) — Although I may be inclined to sympathy with the result reached by the majority, I am wholly unable to agree that the “use of other automobiles” clause here involved is ambiguous. Hence, I am compelled to dissent.

Briefly, the pertinent, facts are these. Mark Donovick, a minor residing with his parents, purchased a 1962 Chevy II 4-door sedan in September 1970. He applied for, obtained, and paid for liability coverage for his automobile from Dairyland Insurance Company, hereafter referred to as Dairyland. Mike and Mildred Donovick, Mark’s parents, owned and kept at the family residence a 1968 Chevrolet Impala and a 1967 Chevrolet %-ton pickup, which Mark seldom if ever drove. Pacific Indemnity Company provided liability coverage for the Impala and the pickup truck until *361July 1970, when renewal thereof was refused by that company. Thereafter, liability coverage for the Impala and the pickup truck was not obtained until November 4, 1970, 4 days after the accident giving rise to this litigation.

On October 31, 1970, Mark, with his father’s permission, was driving the pickup truck in furtherance of his own purposes. He became involved in the fatal accident. Suit for damages was initiated against Mark and his parents. Defense was tendered to Dairyland which tender was refused. This litigation was then instituted to determine the extent, if any, of the coverage of the policy issued by Dairyland to Mark.

The sole issue is whether the “use of other automobiles” clause excludes or extends coverage to Mark while operating his parents’ pickup truck on the occasion and under the circumstances prevailing at the time in question.

The clause in its entirety provides:

V Use of Other Automobiles
If the named Insured is an individual or husband and wife and if during the policy period such named insured, or the spouse of such individual if a resident of the same household, owns a private passenger automobile covered by this policy, such insurance as is afforded by this policy under coverages A, B and C, with respect to said automobile applies with respect to any private passenger automobile subject to the following provisions:
(a) Under coverages A and B the word “insured” includes (1) the named Insured and spouse provided his actual operation is with the permission of the owner and is within the scope of such permission, and (2) any other person or organization not owning or hiring the automobile, but only with respect to his or its liability because of acts or omissions of . an insured (a) (1) above.
(b) This insuring agreement does not apply:
(1) to any automobile owned by or furnished for regular use to either the named Insured or a member of the same household other than a private chauffeur or domestic servant of such named Insured or spouse;
(2) to any accident arising out of the operation of *362an automobile sales agency, repair shop, service station, storage garage or public parking place;
(3) to any automobile while used in a business or occupation of such named Insured or spouse except a private passenger automobile operated or occupied by such named Insured, spouse, private chauffeur or domestic servant.

Such clauses, or similarly worded ones, are not uncommon in standard automobile liability insurance policies. The obvious intent and purpose of such provisions are to provide coverage to the named insured during the occasional or incidental use of other automobiles without the payment of an additional premium, but to exclude a possible interchangeable use by the insured of other cars readily at hand, i.e., cars owned by or regularly used by the insured or members of the same household but not described in the policy, thus increasing the risk of the insurance company without a corresponding increase in the premium. Annot., Exclusion from “drive other cars” provision of automobile liability insurance policy of other automobile owned, hired, or regularly used by insured or member of his household, 86 A.L.R.2d 937 (1962); 13 G. Couch, Cyclopedia of Insurance Law § 45:956 (2d ed. R. Anderson 1965); 7 Am. Jur. 2d Automobile Insurance §§ 105-06 (1963).

Divining this intent and purpose, a startling array of courts called upon to interpret and apply such clauses, or similarly worded ones, have either directly or tacitly found them free of ambiguity and applicable or inapplicable as the facts and circumstances in the individual cases warranted. With virtual unanimity, the exclusionary provisions of the clause, insofar as pertinent here, have been accepted as excluding from coverage cars not described in the insurance policy involved which are: (a) owned by or furnished for the regular use of the insured, or (b) owned by or furnished for the regular use of members of the same household. American Auto. Ins. Co. v. English, 266 Ala. 80, 94 So. 2d 397 (1957); McKinley v. Colorado Farm Bureau Mut. Ins. Co., 163 Colo. 529, 431 P.2d 859 (1967); Iowa Mut. *363Ins. Co. v. Addy, 132 Colo. 202, 286 P.2d 622 (1955); Rathbun v. Aetna Cas. & Sur. Co., 144 Conn. 165, 128 A.2d 327 (1956); Home Ins. Co. v. Kennedy, 52 Del. 42, 152 A.2d 115 (1959); O’Brien v. Halifax Ins. Co., 141 So. 2d 307 (Fla. Dist. Ct. App. 1962); Rodenkirk v. State Farm Mut. Auto. Ins. Co., 325 Ill. App. 421, 60 N.E.2d 269 (1945); General Leasing Corp. v. Anderson, 197 Kan. 327, 416 P.2d 302 (1966); Gage v. Roy, 173 So. 2d 885 (La. Ct. App. 1965); Sumrall v. Aetna Cas. & Sur. Co., 124 So. 2d 168 (La. Ct. App. 1960); Leteff v. Maryland Cas. Co., 91 So. 2d 123 (La. Ct. App. 1956); Simon v. Milwaukee Auto. Mut. Ins. Co., 115 N.W.2d 40 (Minn. 1962); Goens v. Arinder, 248 Miss. 806, 161 So. 2d 509 (1964); Fleming v. Travelers Ins. Co., 206 Miss. 284, 39 So. 2d 885 (1949); Giokaris v. Kincaid, 331 S.W.2d 633, 86 A.L.R.2d 925 (Mo. 1960); Anaya v. Foundation Reserve Ins. Co., 76 N.M. 334, 414 P.2d 848 (1966); Vern v. Merchants Mut. Cas. Co., 21 Misc. 2d 51, 118 N.Y.S.2d 672 (1952); Whaley v. Great Am. Ins. Co., 259 N.C. 545, 131 S.E.2d 491 (1963); Ransom v. Fidelity & Cas. Co., 250 N.C. 60, 108 S.E.2d 22 (1959); George B. Wallace Co. v. State Farm Mut. Auto. Ins. Co., 220 Ore. 520, 349 P.2d 789 (1960); Farm Bureau Mut. Auto. Ins. Co. v. Boecher, 37 Ohio L. Abs. 553, 48 N.E.2d 895 (1942); Grantham v. United States Fidelity & Guar. Co., 245 S.C. 144, 139 S.E.2d 744 (1964); Lontkowski v. Ignarski, 6 Wis. 2d 561, 95 N.W.2d 230 (1959); Mercantile Bank & Trust Co. v. Western Cas. & Sur. Co., 415 F.2d 606 (8th Cir. 1969); Pennsylvania Threshermen & Farmers’ Mut. Cas. Ins. Co. v. Robertson, 259 F.2d 389 (4th Cir. 1958), cert. denied, 359 U.S. 950, 3 L. Ed. 2d 683, 79 S. Ct. 735 (1959); Voelker v. Travelers Indem. Co., 260 F.2d 275 (7th Cir. 1958); Wyatt v. Cimarron Ins. Co., 235 F.2d 243 (10th Cir. 1956); Campbell v. Aetna Cas. & Sur. Co., 211 F.2d 732 (4th Cir. 1954); Farm Bureau Mut. Auto. Ins. Co. v. Violano, 123 F.2d 692 (2d Cir. 1941); American Mut. Liab. Ins. Co. v. Meyer, 115 F.2d 807 (3d Cir. 1940); Hancock v. Western Cas. & Sur. Co., 154 F. Supp. 164 (E.D. Ky. 1957); Farm Bureau Mut. *364Auto Ins. Co. v. Marr, 128 F. Supp. 67 (D.N.J. 1955); Harrill v. Motor Vehicle Cas. Co., 122 F. Supp. 389 (S.D. Iowa 1954); Aler v. Travelers Indem. Co., 92 F. Supp. 620 (D. Md. 1950); Lumbermens Mut. Cas. Co. v. Pulsifer, 41 F. Supp. 249 (D. Me. 1941).

We thus have appellate tribunals in 18 states, federal courts of appeal in 6 different circuits, and at least 5 United States district courts which have encountered no problem of ambiguity in interpreting and applying standard or similar “use of other automobiles” clauses. In this vein it is interesting to note that this court, in Palmer v. Glens Falls Ins. Co., 58 Wn.2d 88, 360 P.2d 742 (1961), had before it a clause similar to the one in the instant case and applied the facts of that case to the clause without difficulty and without any suggestion of ambiguity.

Only Travelers Indem. Co. v. Pray, 204 F.2d 821 (6th Cir. 1953) and Juzefski v. Western Cas. & Sur. Co., 173 Cal. App. 2d 118, 342 P.2d 928 (1959), relied upon by the majority, seemingly stand for the proposition that such common and long accepted insurance policy clauses are ambiguous. As indicated in the annotation in 86 A.L.R.2d 937, these decisions literally stand alone in a vast sea of contrary authority and have virtually gone unheeded, except for criticism. Leteff v. Maryland Cas. Co., supra; Lontkowski v. Ignarski, supra.

The clause considered in Pray and Juzefski reads substantially as follows:

“. . . (b) This insuring agreement does not apply: (1) to any automobile owned by, hired as part of a frequent use of hired automobiles by, or furnished for regular use to the named insured or a member of his household . . .

Travelers Indem. Co. v. Pray, supra at 823.

The Pray court, in a 2-to-l decision found this clause ambiguous because a comma had not been inserted between the phrase “or furnished for regular use to” and the phrase “the named insured.” The dissent in Pray rightfully and authoritatively pointed out that punctuation is a most falli*365ble standard for interpretation of a writing, and is the outermost refuge in the construction of an agreement.

In Juzejski, likewise a 2-to-l decision, the court found the phrase “his household” to be ambiguous, and interpreted it to mean that the insured covered by the policy would not come within the operation of the exclusionary clause unless he was the head of the household. The dissent is by far a more persuasive opinion and is supported by the weight of authority.

Both cases thus represent an extremely strained and myopic view of a clause which a substantial number of authorities heretofore cited have found to be unambiguous, as well as a tortured interpretation of a clause somewhat different from the one involved in the instant case. The majority is ill-advised in placing reliance on these cases contrary to the overwhelming flood of authority to the contrary.

The pertinent clause in the instant case is couched in plain, ordinary language and parses readily. Broken down, it simply provides:

This insuring agreement does not apply: (1) to any automobile (a) owned by (b) or furnished for regular use to (c) either the named insured (d) or a member of the same household . . .

In my view it would be difficult to draft a clause any more concise and/or freer of ambiguity.

Finally, by way of makeweight, the majority complains of the fact that the subject clause is not found under the title or caption “Exclusions.” This appears to me to be grasping for a frail straw. The policy is a standard form liability policy undoubtedly approved by the Insurance Commissioner. The subject paragraph and clause is clearly and in bold, black type headed by the paragraph number and the phrase “Use of Other Automobiles.” It extends coverage as well as limiting the extended coverage. Certainly any normal policyholder, seeking to ascertain his coverage in connection with the use of another car, would encounter no difficulty whatsoever in locating the pertinent paragraph and clause. He would be more likely confused if *366his extended coverage were “sandwiched” in among the exclusions, and certainly his confusion would be compounded if the limiting provisions of his extended coverage were separated from the paragraph and placed elsewhere.

Under the facts of this case, the pickup truck driven by Mark Donovick on the day of the accident indisputably belonged to a member of the same household as Mark. It, therefore, fell within the ambit of the exclusionary provisions of the “use of other automobiles” clause, and Mark’s use of it was not covered by the Dairyland policy issued to him.

The judgment of the trial court should be affirmed.

Stafford, J., and Johnsen, J. Pro Tern., concur with Hamilton, J.