Maryland American General Insurance Co. v. Ramsay

OPINION ON MOTION FOR REHEARING

Plaintiff-appellee, in her motion for rehearing, contends that since the term `commercial automobile' has both a broad and a restricted meaning, the term should be strictly construed against defendant-appellant and liberally in her favor. We do not agree.

We are aware of the rule which requires a Court to construe the terms of a policy of insurance in a manner favorable to the insured where the policy provisions are ambiguous, or are susceptible to more than one reasonable construction or interpretation. That rule, however, does not apply to this case.

The Texas Supreme Court, in Guardian Life Insurance Company of America v. Scott, 405 S.W.2d 64 (Tex.Sup. 1966), speaking through Mr. Justice Pope, said:

". . . Terms used in an insurance contract are given their ordinary and generally accepted meaning unless the policy shows the words were meant in a technical or different sense . . .'

We find nothing in the policy which indicates that the words "commercial automobile' were used or meant in a technical sense. They should be given their ordinary and general meaning. Where undefined terms in an insurance contract are given their ordinary meaning and exclusion of benefits results, language contained therein will not be treated as ambiguous.

As stated in the majority opinion, we have not found a Texas case that has decided whether or not the term `commercial vehicle', undefined in a policy of insurance, is ambiguous. Other jurisdictions have written on this topic.

In Hardee v. Southern Farm Bureau Casualty Insurance Company,127 So.2d 220 (La.App. 1961), a case involving the same exclusion as the one at bar, the court held that a `commercial automobile' is not an ambiguous term but has a meaning readily ascertainable in the plain, ordinary and popular sense of the language used. The Supreme Court of Alabama, in Ferguson v. State Farm Mutual Automobile Insurance Company, 281 Ala. 295,202 So.2d 81 (1967), reached the same conclusion as did the several courts in Peterick v. Mutual of Enumclaw Insurance Company, 9 Wn. App. 721, 514 P.2d 188 (1973); Farmers Insurance Exchange v. Loesche, 17 Ariz. App. 421, 498 P.2d 495 (1972); Dilley v. State Farm Mutual Automobile Ins. Co.,249 Cal.App.2d 385, 57 Cal.Rptr. 195 (1967); and Molzahn v. State Farm Mutual Automobile Insurance Co., 308 F. Supp. 1144 (D.C.Kan. 1968). *Page 145

In Kirk v. Nationwide Mutual Insurance Company,254 N.C. 651, 119 S.E.2d 645 (1961), it was said:

"The test is the character of the use of the vehicle taken into consideration with the form of the car.' Zabriskie v. Law, 1922, 118 Misc. 471, 194 N.Y.S. 626, 628. `An automobile truck is a vehicle for the conveyance for commercial purposes over ordinary roads, and the average type of that kind of vehicle is especially designed both in its propelling mechanism and in its body construction for that function.' American-La France Fire Engine Co., Inc. v. Riordan, 2 Cir., 1925, 6 F.2d 964, 966. `The words `commercial use' connote use in a business in which one is engaged for profit.' Lintern v. Zentz, 1950, 327 Mich. 595, 42 N.W.2d 753, 756, 18 A.L.R.2d 713. `In State v. D., L. W.R. Co., 30 N.J. Law 473, it was held: `By the term `commerce,' is meant not traffic only, but every species of commercial intercourse, every communication by land or by water, foreign or domestic, external and internal.' * * * transportation is as much a part of commerce as are the goods transported.' Conecuh County v. Simmons, 1922, 19 Ala. App. 65, 95 So. 488, 489.'

It has been held that the mere fact that a vehicle is not actually used by the driver to haul for profit is not conclusive in determining whether that particular vehicle is `commercial.' Bauerle v. State Farm Mutual Automobile Insurance Company of Bloomington, Illinois, 153 N.W.2d 92 (N.D.Sup. 1967); Farmers Insurance Exchange v. Loesche, supra.

In Voelker v. Travelers Indemnity Company, 260 F.2d 275 (C.C.A., 7th Cir. 1958), plaintiff Voelker, the insured and a member of the National Guard, was operating a National Guard truck and was involved in an accident while in a military convoy. Recovery for damages sustained by plaintiff in the accident was denied. The court concluded that at the time of the collision the truck was used in a business or occupation of the insured, and that `it seems reasonable to think that the truck was furnished him for his `regular use' while acting in performance of his duties as a member of the National Guard.' The court further concluded that the insured, while driving the truck, was not only engaged in the business of the National Guard, `but in his own business as well.' Other cases which have held that the National Guard member (insured) was engaged in business while driving National Guard trucks (military vehicles) so as to preclude coverage are Blackwell v. United States of America and Aetna Casualty and Surety Company,321 F.2d 96 (C.C.A.5th Cir. 1963); Glisson v. State Farm Mutual Automobile Insurance Company, 246 S.C. 76, 142 S.E.2d 447 (1965); and Allstate Insurance Company v. Hoffman,21 Ill. App.2d 314, 158 N.E.2d 428 (1959).

Under the undisputed facts, Ramsay, at the time of his death, was engaged in the course of his occupation in servicing and repairing an air-conditioning unit, and was driving a pickup truck that was owned by the government. When viewed in the light of the purpose for which the pickup was acquired and used by the Navy, it is obvious that its principal purpose was to serve a business need, not a military need. While the Navy was not engaged in a business for profit, it was engaged in the business of caring for its personnel and their families who lived at Capehart. Since the pickup was furnished Ramsay for his regular use while performing his duties as a civil service employee for the Navy, he was engaged not only in the business of the Navy in serving the needs of Navy families, but in his own business as well. Voelker v. Travelers Indemnity Company, supra. There can be no doubt that the pickup was a `commercial automobile' under the exclusionary terms of the policy which is involved here.

We remain convinced that the term `commercial automobile', as used in the policy, is not an ambiguous term. The language *Page 146 used in the exclusion is too plain to permit judicial interpretation or construction. The two words which comprise the term should be given their ordinary and general meaning. Where words in a contract of insurance are given ordinary meaning and exclusion of benefits results, the language should not be treated so as to create an ambiguity which would result in the opposite of what was so expressed. Lawrence v. Beneficial Fire and Casualty Insurance Company, 8 Ariz. App. 155,444 P.2d 446 (1968). The exclusionary language in the policy precludes coverage under the facts of this case.

The motion for rehearing is overruled.