Indiana Lumbermens v. Timberland Pallet
| Decision Date | 16 November 1998 |
| Docket Number | No. 98-1657,98-1931,98-1657 |
| Citation | 195 F.3d 368 |
| Parties | (8th Cir. 1999) Indiana Lumbermens Mutual Insurance Company, an Indiana Corporation, Appellee, v. Timberland Pallet and Lumber Company, Inc., a Missouri Corporation; Justin C. Pliler; Frank Cockrum, Defendants. William Richard Chamberlain; Deanna Sue Chamberlain; William Timothy Chamberlain; Tabitha Gail Chamberlain;Tiffany Rene Chamberlain, Appellants, Mariah Lewis, Defendant. Indiana Lumbermens Mutual Insurance Company, an Indiana Corporation, Appellee, v. Timberland Pallet and Lumber Company, Inc., a Missouri Corporation, Appellant. Justin C. Pliler; Frank Cockrum; William Richard Chamberlain; Deanna Sue Chamberlain; William Timothy Chamberlain; Tabitha Gail Chamberlain; Tiffany Rene Chamberlain; Mariah Lewis Defendants Submitted: |
| Court | U.S. Court of Appeals — Eighth Circuit |
Appeals from the United States District Court for the Western District of Missouri
[Copyrighted Material Omitted]
[Copyrighted Material Omitted] Before McMILLIAN, FLOYD R. GIBSON and HANSEN, Circuit Judges.
Timberland Pallet & Lumber Co. (Timberland) and William R. Chamberlain, Deanna Chamberlain, William T. Chamberlain, Tabitha Chamberlain, and Tiffany Chamberlain (the Chamberlains) appeal from a final order entered in the District Court 1 for the Western District of Missouri in favor of Indiana Lumbermen's Mutual Insurance Co. (Lumbermen's or the insurer) in this declaratory judgment action. Indiana Lumbermen's Mutual Insurance Co. v. Timberland Pallet & Lumber Co., Case No. 97-3083-CV-S-4 (W.D. Mo. Feb. 19, 1998) (judgment entry). At issue was whether Timberland was covered under a commercial general liability insurance policy issued by Lumbermen's for personal injury claims made against it by the Chamberlains. The district court found there was no coverage because Timberland's dump truck was not "mobile equipment" as defined by the policy. For reversal, Timberland and the Chamberlains (collectively appellants) argue the district court erred in declaring the jury advisory after the jury returned its verdict. They also argue that there was sufficient evidence to submit the case to the jury and that substantial evidence supports the jury's special findings of fact in their favor.
For the reasons discussed below, we hold the district court erred in declaring the jury advisory because the action was triable of right by a jury, but we hold the error was harmless. We also hold the district court did not err in holding, as a matter of law, that the dump truck was not mobile equipment and therefore excluded from coverage under the policy. Accordingly, we affirm the judgment of the district court.
The district court had diversity jurisdiction under 28 U.S.C. 1332 over this declaratory judgment action. Lumbermen's is an Indiana corporation and its principal place of business is located in Indiana; Timberland is a Missouri corporation and its principal place of business is located in Missouri; the individual defendants were all citizens and residents of Missouri. Appellants filed timely notices of appeal under Fed. R. App. P. 4(a). We have appellate jurisdiction under 28 U.S.C. 1291 over the final decision of the district court.
Most of the underlying facts are not in dispute. On July 19, 1993, a 1970 International dump truck owned by Timberland and driven by Timberland employee Justin Pliler collided with the Chamberlains' truck on a public highway (U.S. 160). The Chamberlains were seriously injured.
Timberland manufactures hardwood pallets and lumber. This activity produces sawdust which is disposed of as part of its business. Timberland bought the dump truck in 1991. At the time of purchase the dump truck was licensed and titled. At the time of the accident, however, it was not licensed. The dump truck was used to move sawdust from one location to another on Timberland's premises. It is self-propelled, required little maintenance, was refueled on the premises (using gasoline cans), and was rarely driven off the premises. On at least one other occasion, however, it had been driven off the premises and on the public highways in order to deliver sawdust to a farm located less than 10 miles away. (There was some dispute about the number of times the dump truck had been driven off the premises in the previous year.) On the day of the accident, another Timberland employee told Pliler to take the license plate off another truck and put it on the dump truck for the trip to the farm. Pliler drove the dump truck to the farm, delivered the sawdust and was returning to Timberland when the accident occurred.
The Chamberlains filed a lawsuit against Timberland in Missouri state court and eventually obtained a default judgment in the amount of $3.2 million. Lumbermen's is Timberland's commercial general liability insurer. Lumbermen's refused to defend Timberland in the state court action on the ground that the dump truck was not covered under the policy because it was excluded from coverage under the auto exclusion. The commercial general liability insurance policy provides $1 million coverage for each occurrence. Timberland did not insure the dump truck under its automobile liability insurance policies. Timberland subsequently assigned its rights against Lumbermen's to the Chamberlains.
In February 1997 Lumbermen's filed this declaratory judgment action against Timberland and the Chamberlains in federal district court seeking a declaration that its commercial general liability insurance policy did not provide coverage for the accident and that it was not obligated to investigate, defend or pay any claim on behalf of Timberland or its employee Pliler. The policy contains an exclusion for bodily injury or property damage arising out of the ownership, maintenance, use or entrustment to others of any "auto" owned or operated by any insured. The policy provides that "use" includes operation and "loading and unloading." The policy defines "auto" as The policy further defines "mobile equipment" in part as
any of the following types of land vehicles, including any attached machinery or equipment:
. . . .
b. [v]ehicles maintained for use solely on or next to premises you (referring to the insured) own or rent;
. . . .
f. [v]ehicles not described in a. (referring to bulldozers, farm machinery, forklifts and other vehicles designed for use principally off public roads), b., c. (referring to vehicles that travel on crawler treads), or d. (referring to vehicles, whether self-propelled on not, maintained primarily to provide mobility to permanently mounted power cranes, shovels, loaders, diggers, or drills, or road construction or resurfacing equipment such as graders, scrapers or rollers) above maintained primarily for purposes other than the transportation of persons or cargo.
The policy further provides that self-propelled vehicles with the following types of permanently attached equipment are not "mobile equipment" but will be considered "autos": equipment designed primarily for snow removal, road maintenance but not construction or resurfacing, and street cleaning, cherry pickers and similar devices mounted on automobile or truck chassis and used to raise or lower workers, and air compressors, pumps and generators, including spraying, welding, building cleaning, geophysical exploration, lighting and well servicing equipment.
Timberland denied that the dump truck was an "auto" as defined by the policy. The Chamberlains filed an answer and demanded a jury trial. In pre-trial orders, the district court scheduled the case for jury trial but deferred ruling on whether the Chamberlains were entitled to a jury trial. Lumbermen's moved to strike the demand for jury trial about a month before the trial was scheduled to begin. The Chamberlains opposed the motion to strike. At the pre-trial conference the district court denied the motion to strike the jury demand. The case was tried to a jury. The trial took two days. The district court found that the terms of the policy were not ambiguous. (Trial Transcript at 257.) The district court denied the motion of Lumbermen's for directed verdict at the close of the plaintiff's case and also denied the parties' motions for directed verdict at the close of all the evidence.
The district court submitted to the jury a special verdict consisting of three interrogatories:(1) whether the dump truck was an "auto" as defined in the insurance policy, (2) whether the dump truck was "mobile equipment" as defined in the insurance policy, and (3) whether the dump truck was being operated within the scope and course of employment at the time of the accident. The jury answered the first question "no" and the second and third questions "yes," finding that the policy did provide coverage for the dump truck (because the dump truck was mobile equipment and thus not an auto).
The district court then dismissed the jury and announced that the issues presented were questions of law for the court to decide and that the jury would be advisory only. See Trial Transcript at 430-31 (Appellants' Appendix at 266-67). The district court had already found that the terms of the policy were not ambiguous. See id. at 257 (). The district court found that the dump truck was not used solely on or adjacent to Timberland's premises and that the primary use of the dump truck was for the transportation of persons or cargo, specifically, the transportation of sawdust on the premises. See slip op. at 1-2. The district court concluded that the dump truck was not a vehicle of the type which constituted "mobile equipment" within the exception to the auto exclusion in the policy. See id. at 2. In...
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