dissenting.
This litigation arose out of a motor vehicle accident in which Deborah Baldwin, driving a pickup owned by her father Jack Foster, collided with a vehicle driven by Grayhl Otto, who sustained substantial injuries. Baldwin was evidently at fault, since settlement was made with Otto for $210,000. Of that amount, various other insurance carriers paid a total of $165,000, and the Baldwins and the Fosters personally paid the remainder. The Baldwins owned a pickup truck which was insured with Prudential, and that policy carried a driving-another-car coverage. Prudential denied coverage, on the basis that the Baldwins’ policy excluded coverage where the insureds were driving non-owned vehicles which were regularly used by them and/or used for business purposes.
The Fosters and Baldwins brought this action for the damages sustained by them through refusal of Prudential to provide coverage and for punitive damages. The trial took two days and consisted almost exclusively of evidence presented by plaintiffs. Defendants’ only evidence was that of an underwriter for Prudential, who sought to testify only as to the meaning of certain insurance policy terminology, which testimony was excluded by the trial court. Thereafter the jury was instructed and two verdict forms were submitted to the jury requiring their finding on alternate theories of liability, i.e., policy coverage and estoppel. The jury found in favor of plaintiff and against defendants on both theories, i.e., policy coverage and estoppel, and awarded compensatory damages. The jury further found punitive damages in the amount of approximately $72,000. Upon motion for a new trial, the trial court, not having the benefit of this Court’s late opinion in Cheney v. Palos Verdes Investment Corp., 104 Idaho 897, 665 P.2d 661 (1983), relied upon the case of Cox v. Stolworthy, *6994 Idaho 683, 496 P.2d 682 (1972), and reduced the amount of punitive damages by approximately $50,000.
Defendant Prudential appeals from the jury verdict and from the judgment entered thereon, and plaintiffs cross-appeal from the order of the trial court reducing the amount of punitive damages.
Appellant Prudential complains of the form of the special verdicts utilized by the court, but, in my view, the objection voiced by appellant at the court conference did no more than to allow the trial court to utilize, in its discretion, either the special verdict forms drafted by the court or the special interrogatories drafted by defendant Prudential. I find no abuse of that discretion in the submission of the court-drafted forms of verdict to the jury. The form of the verdict, whether general or in special interrogatories, is a matter within the trial judge’s discretion and, absent abuse of that discretion, is not a ground for reversal. Garrett v. Nobles, 102 Idaho 369, 630 P.2d 656 (1981); C.C. Anderson Stores Co. v. Boise Water Corp., 84 Idaho 355, 372 P.2d 752 (1962); Ellis v. Ashton & St. Anthony Power Co., 41 Idaho 106, 238 P. 517 (1925). While the special interrogatory forms submitted by defendant Prudential might have made the jury decision more clear, and therefore it might have been preferable, as above-stated, I find no abuse of discretion in that regard.
Since the jury found in favor of plaintiff on both alternatives, i.e., policy coverage and estoppel, if either theory is sustainable, the verdict of the jury as to compensatory damages should stand. I think there is clearly adequate evidence to support the jury’s verdict entered on the theory of estoppel. The evidence, taken most favorably to the plaintiffs, indicates that an agent of Prudential represented to the Baldwins that the insurance coverage on their pickup truck would cover them while driving any other vehicle. The Baldwins relied upon that representation to their detriment and, as is usual, the actual policy containing the alleged exclusions was not issued for some time thereafter. Following the accident, two other representatives of Prudential advised the Baldwins that there was coverage for non-owned vehicles under their policy. Hence, I would affirm the jury verdict and the judgment entered thereon on the theory of estoppel.
As to the majority’s opinion regarding alleged policy coverage and the alleged ambiguity of the exclusionary clauses, it is my opinion that, while well intentioned, it only further obfuscates the law of insurance in Idaho regarding ambiguities in insurance policies. I believe the case at bar is an excellent illustration of the problems which arise.
There is no question but what Mrs. Baldwin was driving a “non-owned vehicle.” The vehicle was owned by Foster. While, as indicated in the majority, the term “regular use” by a non-owned vehicle may be relatively simple language, as is the phrase “non-owned automobile while maintained or used by any person while such person is employed in any other” business of the insured, nevertheless, they cannot be applied in the abstract based only on the policy language. A trier of fact must determine whether the circumstances do or do not bring those exclusionary phrases into effect. Hence, in my view, to that extent, the phrases are ambiguous. Particularly so since earlier in the policy Prudential contracts “to pay on behalf of the insured all sums which the insured [the Baldwins] shall become legally obligated to pay as damages ... arising out of the ownership, maintenance or use of the owned automobile [Baldwins’ pickup] or any non-owned automobile [the Foster vehicle] ...” (Emphasis supplied.)
Here the question of coverage under the initial non-owned vehicle coverage or exclusion under the “regular use” or “any other business or occupation of the insured” was submitted to the jury with what, in my view, were adequate and sufficient instructions. I cannot determine why the trial court’s determination of ambiguity has any dispositive effect. If the court had held that the exclusionary phraseology was not ambiguous, it would nevertheless have had *70to submit to the jury the questions of whether the facts and circumstances of this case called into effect that exclusionary language. That is exactly what the trial court did in the instant case, and hence I see no error.
The facts regarding circumstances that would or would not give rise to the effectiveness of the exclusionary clause, as indicated by the evidence, are as follows: The Fosters and the Baldwins were engaged in an informal partnership business for the spreading of manure. Each family used a pickup truck in the conduct of that business. For approximately three weeks, Mrs. Baldwin had assisted her father Mr. Foster in the manure spreading operation because Mr. Baldwin was working elsewhere. On the day in question, Mrs. Baldwin had again assisted her father in the manure spreading operation and had terminated work at the end of the day. As a favor to her father, she then drove his truck from the work site toward his home so that he could service the truck over the weekend. It was during that trip that the accident occurred. In my mind, therefore, several questions arose which were necessary for determination by the jury. Was Mrs. Baldwin a regular user of the truck? While she may have been a regular user of the truck during work in the fields, was her trip after the work day a regular occurrence? Since the work and the work day had terminated, was her performance of a personal favor for her father in delivering the Foster truck to the Foster residence a part of her business or occupation? In view of the fact that the plaintiffs presented the only evidence on these issues, the jury very probably found that the exclusionary language was not applicable under the circumstances presented here and hence found for the plaintiffs on the policy coverage issue.
I am certain in my belief that a new trial will not change the outcome of this case, and because I believe the jury award was not, as a matter of law, erroneous, I would affirm the verdict and judgment for compensatory damages.
The majority opinion attempts to distinguish Moss v. Mid-America Fire and Marine Insurance Co., 103 Idaho 298, 647 P.2d 754 (1982), on the basis that in Moss the policy was commercial and in the instant case the policy is a family one. That distinction, I believe, is one without a difference. The sole point is the meaning of the words “regular” and “frequent” in any given insurance policy under the existing circumstances. It is for the jury to decide, and here the jury did so decide for plaintiffs. Even assuming, as held by the majority, that error was committed on the issue of policy coverage, nevertheless, the jury verdict and judgment should be affirmed on the separate and independent ground of estoppel.
As to plaintiffs’ cross-appeal, as above-noted, the reduction of the verdict of punitive damages was based on a standard set forth in Cox v. Stolworthy, supra, which I view as clearly erroneous in light of our recent decision in Cheney v. Palos Verdes Investment Corp., supra. Hence, I would reverse the trial court’s order reducing the award of punitive damages and remand for reconsideration pursuant to our decision in Cheney.