dissenting.
I respectfully dissent for two reasons. The facts are set forth in the majority opinion. After investigation, presumably including extensive discovery, Barga brought suit against Siler, the driver, and Fuqua, the car dealer, on the theory and allegation that the dealership was liable on the basis of respon-deat superior because at the time of the collision Siler was driving in the course of his employment. Barga secured judgment, executed against Fuqua’s insurance to the extent of its policy limits, and now seeks to recover the balance of the judgment against the insurance carried by Starr, the owner of the truck that Siler was driving. In order to do so Barga contends that at the time of the collision Siler was on a personal mission and therefore he was an insured under the terms of Starr’s policy with Indiana Farmers.
Examining case law from Worker’s Compensation decisions and from our supreme court’s decision in Indiana Lumbermens Mut. Ins. Co. v. Statesman Ins. Co., 260 Ind. 32, 291 N.E.2d 897 (1973) the majority concludes Barga may do so. I disagree.
In Lowden v. Northwestern Bank & Trust Co. 298 U.S. 160, 165, 56 S.Ct. 696, 699, 80 L.Ed. 1114 (1936) Justice Cardozo observed, “When things are called by the same name, it is easy for the mind to slide into the assumption that the verbal identity is accompanied in all its sequence by identity of meaning.” That seems to me to be the flaw in the majority’s treatment of the exclusionary provision for injury “arising out of auto business operations.”
In Worker’s Compensation law the terms “arising out of’ and “in the course of’ have become terms of art identifying two distinct prerequisites to the statutory remedy. They should not automatically be taken to mean the same things in other contexts. The Indiana Lumbermens decision dealt with whether an automobile insurance policy should be read so expansively as to provide coverage when the driver of a covered vehicle fell down a flight of negligently maintained basement stairs while delivering a water softener.
In the case before us, the insurance policy in question belonged to the owner of the vehicle that Siler was driving at the time of the collision. The liability coverage provision of the policy excluded coverage for bodily injury arising out of auto business opera*581tions. I also find it noteworthy that the policy defines “insured person” as any person using the insured auto, “But no person shall be considered an insured person if the person uses a vehicle without having sufficient reason to believe that the use is with permission.”
Indisputably, Starr gave Fuqua permission to repair the vehicle and, at least by implication, gave Fuqua permission to drive the pickup in order to diagnose the problem. But suppose that Siler asked Starr, “Hey, your truck is going to be here for a couple of weeks, is it okay with you if I just use it as my personal truck during that time to come to work and do my personal stuff?” Can it be seriously maintained that Starr would have agreed? The issue is not whether at the time of the collision Siler was attempting to diagnose the problem, whether he was exceeding the permission granted by Fuqua, or even whether within its authority Fuqua might grant permission for broad driving use by Siler. Those questions might have bearing on whether Fuqua was hable, but they do not concern the liability of the owner’s insurer. The issue addressing that liability is the nature of the permission granted by Starr, and that permission was solely to repair his truck.
It seems to me to clearly follow that all of Siler’s driving then arose out of Fuqua’s auto business operations and the policy exclusion applies.
Secondly, since this is so, and since Barga took the position at the principal trial that Fuqua was Hable because the collision arose from its business operations, she should not now be permitted to take the contrary view and recover from the owner’s insurer on the theory that Siler’s use did not arise out of auto business operations.
I dissent and would affirm the trial court.