Federated Mutual Implement & Hardware Ins. Co. v. Gupton

• Decision Date: 20 May 1965
• Docket Number: Civ. A. No. 8501.
• Citation: 241 F. Supp. 509
• Parties: FEDERATED MUTUAL IMPLEMENT AND HARDWARE INSURANCE COMPANY, a corporation, Plaintiff, v. George E. GUPTON, Jr., and Minnie Lou Williams, Defendants.
• Court: U.S. District Court — District of South Carolina

241 F. Supp. 509

FEDERATED MUTUAL IMPLEMENT AND HARDWARE INSURANCE COMPANY, a corporation, Plaintiff, v. George E. GUPTON, Jr., and Minnie Lou Williams, Defendants.

Civ. A. No. 8501.

United States District Court E. D. South Carolina, Charleston Division.

Heard April 12, 1965.

Decided May 20, 1965.

Sinkler, Gibbs & Simons, Charleston, S. C., for plaintiff.

Morris D. Rosen, Julian H. Toporek, Charleston, S. C., for defendant George E. Gupton, Jr.

Irving Levkoff, Charleston, S. C., for defendant Minnie Lou Williams.

HEMPHILL, Chief Judge.

Motion by plaintiff insurance company under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, alleging that it is under no obligation or duty to appear and defend in the action by defendant Gupton against defendant Williams because of plaintiff's policy of liability insurance issued to Gupton's employer, Riggs Esso Service Station, or by reason of the South Carolina Uninsured Motorist Act.

There are no South Carolina cases close to being in point on the issue presented here, so this Court must pick its way along the Erie track unguided by that infallible beacon, hindsight.

The stipulated facts show that on May 10, 1962, defendant Minnie Lou Williams, operating her 1957 Ford automobile in the West Ashley area of Charleston County, ran out of gas and stopped on the shoulder of the roadway and thereafter made her way to Riggs Esso Service Station where she made arrangements to buy gasoline to put in her stalled automobile. She was brought back to her car in a Riggs pick-up truck operated by defendant George E. Gupton, Jr., an employee of Riggs who neither lived with nor was related to Riggs. Gupton parked the Riggs truck on the shoulder of the road approximately six feet behind Minnie Lou Williams' car headed in the same direction; he alighted from the truck, taking the gasoline can with him, and commenced pouring the fuel into the tank of the Williams car. Defendant Williams got into her car and started it while Gupton was still pouring gasoline into her tank, then her car suddenly, and apparently unexpectedly, backed up over the six foot distance between the back of her car and the front of the pick-up truck and pinned Gupton between the two vehicles, injuring him severely.

At the time of this accident, for the purposes of this litigation, Minnie Lou Williams' car was an uninsured motor vehicle within the South Carolina uninsured motorist statute, because her liability carrier subsequently became insolvent, and the question therefore, with this set of facts, is whether or not Gupton is an "insured" under Riggs' statutorily required uninsured motorist coverage.

In the light of the definition of "insured" under the statute it is necessary to determine whether at the time of this accident Riggs' employee Gupton was "using" the pick-up truck involved in this accident.

The uninsured motorist endorsement in the policy is not consonant with the South Carolina Uninsured Motorist Act, and the parties have agreed that the Act is controlling.

Relevant portions of the applicable South Carolina statutory law are as follows:

"S.C.Code, 1962, § 46-750.31, Definitions:

* * * * * *

"(2) The term `insured' means the named insured and, while resident of the same household, the spouse of any such named insured and relatives of either, while in a motor vehicle or otherwise, and any person who uses, with the consent, express or implied, of the named insured, the motor vehicle to which the policy applies. * * *

* * * * * *

"S.C.Code, 1962, § 46-750.32, Bodily injury and property damage limits required.—No policy or contract of bodily injury liability insurance or of property damage liability insurance, covering liability arising from the ownership, maintenance or use of any motor vehicle, shall be issued or delivered in this State to the owner of such vehicle, or shall be issued or delivered by an insurer licensed in this State upon any motor vehicle then principally garaged or principally used in this State, unless it contains a provision insuring the persons defined as insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of such motor vehicles within the United States of America * * *."

As defendant Gupton points out, § 46-750.32 does not require that the insured vehicle be operated negligently nor does it require that the insured vehicle be operated at all. The Act only requires that the injuries arise "from the ownership, maintenance, or use" of the motor vehicle. For example, accidental injury may be within the ambit of an automobile liability policy, even though it did not result from the movement of the insured motor vehicle. Earl W. Baker & Co. v. Lagaly, 144 F.2d 344, 346, 154 A.L.R. 1098 (10th Cir. 1944). There the Court observed that opening the bus' door and permitting the child to depart was inextricably tied-up with the operation of the bus. See 7 Am.Jur.2d Automobile Insurance § 85 for other illustrations.

Exact definition of the term "use" is elusive, and is not capable of a definition which will leave everyone "comfortable." Whether or not an injury arose from the "use" of a motor vehicle within the contemplation of a liability policy or statute depends upon the factual context of each case. In this setting the term does not imply "remoteness," but does extend beyond actual physical contact. And it would seem to extend at least to the point, beyond physical contact, where control over the instrumentality is easily or reasonably at hand, and particularly when it is still being "utilized."

In Carter v. Bergeron, 102 N.H. 464, 160 A.2d 348, 89 A.L.R.2d 142, it was argued that "the insured vehicle did not itself produce the injury; that the accident was not `within its natural territorial limits'; and that it did not arise out of the vehicle's inherent nature `as such.' * * * Urged (was) that some `physical' relation between the truck and the accident is a requisite, and that the administrator's contention that his intestate's injuries arose out of `use' of the pickup truck, within the meaning of the policy, is not only ingenious but fantastic." The Court answered this by saying that there was no requirement "`that the injury (be) * * * directly and proximately caused by the use of the insured vehicle,' but only that it arose out of the use." 160 A.2d at 353, 89 A.L.R.2d at 149.

As the Court noted in Schmidt v. Utilities Ins. Co., 353 Mo. 213, 182 S.W. 2d 181, 154 A.L.R. 1088, 1092:

"We must consider whether the negligent act and resulting injury was a natural and reasonable incident or consequence of the use of the trucks for the purposes shown by the declarations, though not foreseen or expected; and whether, after the negligent acts and injury were complete, it was possible to trace the negligent acts and resulting injury as reasonably incident to, and closely connected with, the use of the trucks for the purposes shown in the declarations in the policy."

The declarations found in the policy are also applicable insofar as they do not attempt to reduce the statutory coverage. Was the injury to Gupton a reasonable consequence of the use of the truck for the purposes shown in the policy declarations? Schmidt v. Utilities Ins. Co., supra.

An important policy provision provides:

"Definition of Hazards

"Division 1 — Premises — Operations — Automobiles: The ownership, maintenance or use of the premises for the purpose of an automobile sales agency, repair shop, service station, storage garage or public parking place, and all operations necessary or incidental thereto; and the ownership, maintenance or use of any automobile in connection with the above defined operations, and the occasional use for other business purposes * * *."

It is all too obvious that it was within the contemplation of the parties that the truck would be used as a service station truck and that the operation of delivering gasoline on the highways was a necessary and incidental adjunct. — At the time the accident occurred the truck was parked and being used in a manner which exposed the liability carrier to a "hazard" as defined above. This is the type situation intended to be covered by the Uninsured Motorist Act. The hazards an employee exposes himself to in venturing upon the highway when using the truck for purposes of the delivery of gasoline is a situation which the Act was designed to cover. This does not make the Act a substitute for workmen's compensation.

The collation of cases and discussion in 89 A.L.R.2d 150 treats this subject well, and is a helpful research tool.

Hall v. United States Fidelity & Guaranty Co., 107 Ohio App. 13, 155 N.E.2d 462 is somewhat similar to the case at bar. There preparations were being made to attach a tow rope from an automobile to a stalled jeep, and plaintiff, who was standing between the two vehicles, was injured when the automobile backed up, squeezing him between the two vehicles. The Court there held that the jeep's insurer was liable in that the...