Kansas State Bank & Trust Co. v. Old American Ins. Co., 73-1401.

• Decision Date: 05 February 1974
• Docket Number: No. 73-1401.,73-1401.
• Parties: The KANSAS STATE BANK AND TRUST COMPANY, Conservator of the Estate of Leon Cornell Van Vessum, a minor, Plaintiff-Appellee, v. OLD AMERICAN INSURANCE COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

491 F.2d 307 (1974)

The KANSAS STATE BANK AND TRUST COMPANY, Conservator of the Estate of Leon Cornell Van Vessum, a minor, Plaintiff-Appellee, v. OLD AMERICAN INSURANCE COMPANY, Defendant-Appellant.

No. 73-1401.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted November 12, 1973.

Decided February 5, 1974.

Jack Peggs of Smith, Shay, Farmer & Wetta, Wichita, Kan., for plaintiff-appellee.

J. L. Weigand, Jr., of Weigand, Curfman, Brainerd, Harris & Kaufman, Wichita, Kan., for defendant-appellant.

Before SETH, ALDISERT^*, and DOYLE, Circuit Judges.

ALDISERT, Circuit Judge.

Presented in this diversity action, controlled by principles of Kansas law, is the question of whether an insurance policy providing for loss by "being struck or run over by any automobile" covers a loss sustained by being struck by a motorcycle. Having acquired jurisdiction after removal from the state court at the behest of the insurance company, the district court, on stipulated facts, interpreted the policy, found coverage to exist and granted summary judgment in favor of plaintiff. The insurance company has appealed. We reverse.

The adjudicative facts are set forth in the district court's opinion:

The insured Jean K. Hunt, was struck by a 1970 Yamaha 175 c.c. M/C motorcycle while attempting to cross the street in the 300 block, North Coast Highway, Laguna Beach, California, on July 24, 1970. As a result of head injuries sustained in the accident, she died shortly thereafter. Under the policy issued by the defendant, the insured was protected against losses caused by accidental bodily injuries sustained in the following manner:

"1. While the Insured as a passenger or driver is riding in, entering, or alighting from, any private passenger automobile (whether or not owned by the Insured), or

2. While the Insured as a passenger . . . is riding in, entering, or alighting from, any land, air, or water conveyance then engaged as a licensed common carrier of passengers for hire, or

3. By being struck or run over by any automobile or common carrier conveyance while the Insured is a pedestrian on any public street or highway. . . ."

For the purposes of the policy, automobile is defined as a "land vehicle of the type commonly and ordinarily known and referred to as an `automobile,\' and private passenger automobile . . . is defined as a `private automobile designed primarily for transporting persons.\'" On August 13, 1971, plaintiff formally filed claimant\'s proof of accidental death and a certified copy of Jean K. Hunt\'s death certificate in accordance with the proof of loss provisions of the policy. On August 19, 1971, the defendand denied coverage on the ground that a motorcycle was not an automobile as that term was defined in the policy. The dispute between the parties is centered on whether the term "automobile" as it is defined in the policy clearly excludes motorcycles.

The district court reasoned that the term "automobile" is broad enough to include all forms of self-propelling vehicles; recognized that "a motorcycle is not customarily considered an automobile — the distinction being a motorcycle is a two-wheeled, as opposed to a four-wheeled vehicle"; and found that the "definition of `private passenger automobile' describes what the Court feels an average person would described sic as an automobile, i. e., a four-wheeled vehicle designed primarily to carry passengers."

But the court was impressed with the policy's distinction between "automobile" and "private passenger automobile," and found that "automobile" describes "a more extensive class of vehicles." To hold otherwise, it reasoned, "would render the term `private passenger automobile' superfluous." It concluded that the "primary risk contemplated by the provision clearly appears to be that of a pedestrian exposed to motor vehicle traffic" and that "any ordinary insured would consider himself protected under this provision against being struck by any motor vehicle likely to use the streets."

Each party has cited numerous Kansas cases as authority for supporting his position or negating that of his adversary.¹ Unfortunately, none of these cases interprets the precise language at issue in these proceedings. As Justice Holmes once warned: "Every question of construction is unique, and an argument that would prevail in one case may be inadequate in another."²

Thus, it is important to emphasize what is not before us. This is not a case where the policy contains no definition of the term "automobile". Nor is the term defined as "the motor vehicle or trailer described in this policy" as in Western Casualty & Surety Company v. Budig, supra.³ Here the policy contains a specific definition: "As used in this policy, automobile means a land vehicle of the type commonly and ordinarily known and referred to as an "automobile' . . . ."

A review of the authorities discloses that the Kansas Supreme Court respects the generally accepted standards for interpreting insurance contracts. That court has accepted as a threshold determinant our expression in Thomas v. Continental Casualty Company, 225 F.2d 798, 801 (10th Cir. 1955):

All ambiguities will be resolved against the insurer, but the insured is charged with the plain ordinary meaning of inartistic words, and we will not torture words to import ambiguity where ordinary meaning leaves no room for such. * * * Words do not become ambiguous simply because lawyers or laymen contend for different meanings, or even though their construction becomes the subject matter of litigation. Citation omitted.

Kansas Farm Bureau Insurance Company v. Cool, supra, 471 P.2d at 356; and has emphasized:

If the language of an insurance policy when given its everyday commonly accepted meaning is clear and specific in presenting the subject matter at hand, the objective to be accomplished, the burdens assumed, and the benefits to be enjoyed or received, then the terms of the policy cannot be said to be doubtful of meaning or conflicting in terms. Under these circumstances, courts are not at liberty to indulge in a construction that would give an unnatural meaning to the language in order to accomplish results that could not be shown to have been in the minds of the parties.

Ibid., 471 P.2d at 356-357, citing Ferguson v. Phoenix Insurance Company of New York, 189 Kan. 459, 370 P.2d 379 (1962).

Thus, the polestar to guide our inquiry is one of the fundamentals urged by Wigmore: "the standard of the community, or popular standard, meaning the common and normal sense of words."⁴

We have been taught by Holmes that "each party to a contract has notice that the other will understand his words according to the usage of the normal speaker of English under the circumstances, and therefore cannot complain if his words are taken in that sense,"⁵ and that "you cannot prove a mere private convention between the two parties to give language a different meaning from its common one. . . . An artificial construction cannot be given to plain words by express agreement. . . ."⁶

Given this as the recognized standard of interpretation, it appears that we have a case of a fortiori proportions because this insurance policy commands us to limit our consideration to "a land vehicle of the type commonly and ordinarily known and referred to as an `automobile'." Thus we not only have a standard of interpretation requiring common and ordinary meaning, but a contract defining the word in those terms.

As a starting point we agree with the district court that a "motorcycle is not customarily considered an automobile — the distinction being a motorcycle is a two-wheeled, as opposed to a four-wheeled vehicle." We must then determine whether there are expressions of art or special nuances in the insurance contract to permit an interpretation "outside the hard core of standard instances or settled meaning," described by Professor Hart in his classic debate with Professor Fuller as the "problems of the penumbra."⁷

The district court placed the term "automobile" within the penumbra by a process we find difficult to accept. It compared provision (3) of the policy, which is relevant to these proceedings, with provision (1) which is not. Provision (1) relates to losses occurring as a passenger or driver of a "private passenger...