Adams v. Bartel

• Decision Date: 03 August 1964
• Docket Number: 8149,Nos. 8148,s. 8148
• Citation: 129 N.W.2d 755
• Parties: Marie ADAMS, Plaintiff and Respondent, v. Leonard BARTEL, Defendant and Third-Party Plaintiff, and WESTERN CASUALTY & SURETY COMPANY, Third-Party Defendant and Appellant. Frank ADAMS, Plaintiff and Respondent, v. Leonard BARTEL, Defendant and Third-Party Plaintiff, and WESTERN CASUALTY & SURETY COMPANY, Third-Party Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 755

129 N.W.2d 755

Marie ADAMS, Plaintiff and Respondent, v. Leonard BARTEL, Defendant and Third-Party Plaintiff, and WESTERN CASUALTY & SURETY COMPANY, Third-Party Defendant and Appellant.

Frank ADAMS, Plaintiff and Respondent, v. Leonard BARTEL, Defendant and Third-Party Plaintiff, and WESTERN CASUALTY & SURETY COMPANY, Third-Party Defendant and Appellant.

Nos. 8148, 8149.

Supreme Court of North Dakota.

Aug. 3, 1964.

Syllabus by the Court

1. In cases tried without a jury, the findings of the trial court are entitled to appreciable weight.

2. Any ambiguous terms of an insurance policy are to be construed in favor of insured and against insurer, who is charged with having chosen language of policy.

3. The phrase: 'Or the company insures all automobiles owned by the named insured and spouse' in the so-called 'automatic coverage clause' as used in the automobile insurance policy in this case is construed to apply to one or more automobiles.

4. A party on appeal may raise only such issues as were before the trial court.

Foughty & Christianson, Devils Lake, for plaintiffs and respondents.

Dale Jensen, Asst. Atty. Gen., Bismarck, for Unsatisfied Judgment Fund.

Duffy & Haugland, Devils Lake, for third-party defendant and appellant.

ADAM GEFREH, District Judge.

The Third Party Defendant, Western Casualty & Surety Company, is appealing from judgments awarded to the Plaintiffs against the Defendant Leonard Bartel and against the Third Party Defendant Western Casualty and Surety Company for personal injuries sustained by the Plaintiffs in an automobile accident.

The facts insofar as they are pertinent to this appeal may be summarized as follows: The plaintiffs had commenced separate actions against the defendant Leonard Bartel and thereafter the defendant under third party practice brought in the Western Casualty and Surety Company as a third party defendant. The actions were consolidated for trial and were tried to the Court without a jury.

The defendant Leonard Bartel was the owner of a 1957 Rambler Station Wagon automobile on which he carried liability insurance under a policy issued by the third party defendant. Subsequent to the issuance of the insurance policy, and while the policy was in force, the defendant Leonard Bartel acquired an additional automobile, a 1953 Dodge. Thirty-two days after acquisition of the 1953 Dodge, defendant Bartel, while driving the 1953 Dodge, was involved in the collision out of which these actions have arisen.

After the commencement of the actions, the third party defendant was notified and requested to defend the actions. The third party defendant denied liability and refused to defend the actions on behalf of the defendant, and thereafter the defendant instituted the third party proceedings.

The trial court found in favor of the plaintiffs against the defendant Leonard Bartel, and also found in favor of the defendant and third party plaintiff on the issue of insurance coverage.

Two questions are involved in this appeal: First, is the third party defendant liable in this action; second, was the judgment entered in favor of the plaintiff Marie Adams excessive.

The insurance policy on the 1957 Rambler under which the defendant and third party plaintiff claim liability coverage is also extended to the 1953 Dodge which was acquired subsequent to the issuance of the policy, contains the following provision:

Paragraph IV(a)(4):

'NEWLY ACQUIRED AUTOMOBILE--an automobile, ownership of which is acquired by the named insured or his spouse, if (i) it replaces an automobile owned by either and covered by this policy but only to the extent the insurance is applicable to the replaced automobile, or the company insures all automobiles owned by the named insured and spouse on the date of its delivery but only for those coverages which are applicable to all such previously owned automobiles and (ii) the named insured or spouse notifies the company within sixty days following such delivery; but such notice is not required under coverages A, B and division 1 of coverage C if the newly acquired automobile replaces an owned automobile covered by this policy. * * *' The third party defendant contends that it is not liable in this action for two reasons: First, the defendant did not have all his automobiles insured with the third party defendant at the time the policy was issued as required under Paragraph IV(a)(4) of the policy; and second, the phrase 'the company insures all automobiles owned by the named insured and spouse' refers to blanket or fleet coverage and is not applicable in the case where only one automobile was owned by the insured at the time the policy was issued.

As to the first question, the appellant contends that the testimony shows that Leonard Bartel had acquired a one-half interest in a 1947 Dodge panel truck which was used in connection with a chicken raising deal in partnership with one Goodwin Larson during the year 1959. The title to this truck was registered in the name of Goodwin Larson. Larson and Bartel sold out this chicken business in the fall of 1959. Larson continued to hold the title to this truck. The trial court found and concluded that Bartel had no interest in the 1947 Dodge panel truck. A review of the testimony on this point indicates that the testimony is conflicting.

This court has held many times that the trial court's findings are entitled to appreciable weight. Nicholson v. Nicholson, N. D., 126 N.W.2d 904; Campbell v. Beaton, N. D., 117 N.W.2d 849; and Miller v. South Bend School District, N. D., 124 N.W.2d 475. The evidence in this case has been carefully examined and we agree with the trial court's finding on this point.

The second question raised by the appellant involves an interpretation of the so called 'automatic insurance' clause, being Paragraph IV(a)(4) of the policy in question.

The appellant argues that the clause in the policy 'or the company insures all automobiles owned by the named insured and spouse' is only applicable to cases where the insured owns more than one vehicle, and if the defendant Bartel owned only one vehicle, the 1957 Nash Rambler, at the time the policy was issued, the automatic coverage did not extend to the 1953 Dodge.

The appellant argues that 'To say that one automobile is the equivalent of all automobiles is to disregard the plain meaning of a contractual provision, and to mix singular and plural with indiscrimination.'

The plaintiff cites Section 4293 of Appleman on Insurance, which reads as follows:

'The coverage extends to the new acquisition when it replaces the sole automobile owned by the insured, when the insured owns a number of vehicles and all of them are insured with the company, or when several of the vehicles owned by the insured are covered by the policy and the new acquisition replaces one already covered.'

Plaintiff also cites Home Mutual Insurance Company v. Rose, 8 Cir., 150 F.2d 201.

This is the first time that this precise question has been presented to this Court. A number of other jurisdictions have ruled on this question. Dunmire Motor Co. v. Oregon Mutual Fire Insurance Company, 166 Or. 690, 114 P.2d 1005; Birch v. Harbor Insurance Company, 126 Cal.App.2d 714, 272 P.2d 784; Horace Mann Mutual Casualty Company v. Bell, D.C., 134 F.Supp. 307; Inland Mutual Insurance Co. v. Stallings, 4 Cir., 263 F.2d 852; and Home Mutual Insurance Company v. Rose, which the appellant relies on.

All the jurisdictions cited had before them the construction of an 'automatic coverage clause' similar to the provision involved in this case. The construction of the automatic insurance clause which the appellant wishes to urge upon the court can not be found in any of the reported cases, including the case of Home Mutual Insurance Company v. Rose which the appellant has cited.

In construing the terms of an automobile insurance policy, it must be kept in mind that the public has an interest in having automobiles covered by liability insurance. Quaderer v. Integrity Mutual Ins. Co., 263 Minn. 383, 116 N.W.2d 605. It is also a well-settled rule of construction that any ambiguous terms of an insurance policy are to be construed in favor of the insured and against the insurer who is charged with having chosen the language of the policy. The purpose for the automatic insurance clause was to broaden the coverage and not to restrict it.

'The 'automatic insurance' clause in standard automobile liability policies is intended to meet the necessity for maintaining coverage in the situation resulting from the recognized custom among...