Aetna Cas. & Sur. Co. v. Martinez
| Decision Date | 17 January 1972 |
| Citation | 3 Pack 687,225 Tenn. 687,475 S.W.2d 663 |
| Parties | , 225 Tenn. 687 AETNA CASUALTY & SURETY COMPANY and Arthur Zafer Roback, Petitioners-Plaintiffs, Tennessee Farmers Mutual Insurance Company, Petitioner-Defendant, v. Anthony MARTINEZ et al., Respondents-Defendants. |
| Court | Tennessee Supreme Court |
J. H. Doughty, Hodges, Doughty & Carson, Knoxville, for Aetna Casualty & Surety Co.
Calvin N. Taylor, Cheek, Taylor & Groover, Knoxville, for Arthur Zafer Roback.
Andrew Johnson, Kramer, Dye, Greenwood, Johnson, Rayson & McVeigh, Knoxville, for Tennessee Farmers Mutual Ins. Co.
Paul E. Parker, O'Neil, Parker & Williamson, Knoxville, for respondents.
This case, filed under our Declaratory Judgment Statutes, T.C.A. § 23--1101, et seq., comes to this Court by grant of the writ of certiorari to the Court of Appeals. The contest is essentially between insurance companies and a statement of the facts and insurance coverage provided the different parties will help clarify the issues.
There is no serious dispute as to the facts. The father of one of the parties, Arthur Roback, had for a number of years rented a small lot of land near the TVA & I Fair held yearly in Knoxville, Tennessee, for the purpose of parking automobiles for those attending the fair and for which he received a fee of $2.00 per car. This business was operated generally in September of each year for a period of eight days. In September, 1968, the father was ill and his son, Arthur Roback, obtained a leave from his usual employment to take over this parking operation for his father. Arthur Roback was in full charge of this parking during this eight days in September, 1968, working thirteen to sixteen hours a day, parking and moving automobiles and collecting these fees. These fees, less expenses, were turned over by Arthur Roback to his father. The automobiles were parked on this lot in such a manner as to often necessitate the moving of one of the automobiles by Arthur Roback in order that another automobile could be driven off the lot. To accomplish this it was necessary that those parking on this lot leave the keys in their automobiles.
On a day in September, 1968, while Roback was operating this parking lot, Steve Brantley drove his 1960 Chevrolet on this lot, paying his fee to park, and at the request of Roback left his keys in the automobile. During the time this 1960 Chevrolet was on this lot Roback found it necessary to move it in order for another automobile parked on the lot to get out. In moving the 1960 Chevrolet, Roback drove it out into the street and was involved in a collision with an automobile driven by Anthony Martinez, resulting in personal injuries to Anthony Martinez and Anna Martinez, a passenger at the time in the Martinez automobile.
As a result of this accident Anthony Martinez and Anna Martinez brought suit for personal injuries in the Circuit Court for Knox County against Aetna Casualty & Surety Company, Arthur Roback, and Edith Brantley, the titled owner of the 1960 Chevrolet. Upon demand, the Tennessee Farmers Mutual Insurance Company and The Home Insurance Company refused to provide any coverage under their policies issued to Edith Brantley and Arthur Roback.
Upon this refusal by Tennessee Farmers Mutual Insurance Company and The Home Insurance Company, Aetna and Roback filed the suit now before the Court against Anthony Martinez, Anna Martinez, Edith Brantley, Tennessee Farmers mutual Insurance Company and The Home Insurance Company seeking to have the court declare Roback was insured (1) under the non-owned automobile provision in the policy issued to Roback by The Home Insurance Company, and (2) as a permittee under Tennessee Farmers Mutual Insurance Company's policy issued to Edith Brantley.
The insurance coverage afforded the parties involved is as follows:
Roback, as named insured, had coverage for public liability under a policy issued by The Home Insurance Company covering the use of a non-owned automobile, except where maintained or used by the insured when 'employed or otherwise engaged in the automobile business.' This policy defined automobile business as, among other things, the 'storing or parking automobiles.'
Edith Brantley was the title owner of the 1960 Chevrolet and had a public liability policy on this automobile issued by Tennessee Farmers Mutual Insurance Company. Steve Brantley was the eighteen-year-old son of Edith Brantley and Tennessee Farmers Mutual Insurance Company had knowledge Steve was to operate and use this automobile, having general unrestricted use thereof.
The Tennessee Farmers Mutual Insurance Company policy provided coverage to Edith Brantley as named insured and to '(3) any other person using the automobile with the permission of the named insured provided his actual operation or (if he is not operating) his actual use thereof is within the scope of such permission . . ..'
The Tennessee Farmers Mutual Insurance Company policy provided this insurance would not apply under,
(c) coverages A (Bodily Injury Liability) and B (Property Damage Liability), except as to the named insured, to the automobile while used in an automobile business, except coverages A and B shall apply, as excess insurance over any other collectible insurance, to a resident of the same household as the named insured, to a partnership in which such resident or the named insured is a partner, or to any partner, agent or employee of the named insured, such resident or partnership; . . ..
As in The Home Insurance Company policy the Tennessee Farmers Mutual Insurance Company policy defined 'automobile business' as, among other things, the 'storing or parking automobiles.'
The Martinez automobile was covered by a public liability policy issued by Aetna Casualty & Surety Company which, among other things, contained an uninsured motorist provision.
The first issue for determination is whether Roback was operating the 1960 Chevrolet, at the time of the collision, while engaged in the 'automobile business' within the meaning of this exclusion as contained in both The Home Insurance Company and Tennessee Farmers Mutual Insurance Company policies. On this issue the trial court and the Court of Appeals found in the affirmative, and we agree. The Court of Appeals said:
Without question in our mind, Arthur Roback's access to the Brantley automobile and the necessity for him to drive the Brantley automobile arose out of and was a part of the business of 'parking automobiles,' which under the policy definitions of 'automobile business' brings into play the policy exclusions set out above, . . .. The fact that Roback operated the parking lot for only 8-days a year and then only to assist his father is not sufficient to take him from under the policy exclusions. The key to coverage is the nature of the use of the automobile by Roback at the time of the accident. As pointed out by the court in Allstate Ins. Co. v. Hoffman, 21 Ill.App. (2d 314) 214, 158 N.E.2d 428, 430, 'it is not uncommon for an insured to have a business in addition to his regular and customary occupation which he may pursue primarily or even wholly for purposes other than pecuniary gain; but such collateral business would nonetheless constitute a business or an occupation while so pursued.' See also Seaford v. Nationwide Mutual Insurance Co., 253 N.C. 719, 117 S.E.2d 733 and Voelker v. Travelers Indemnity Co., (CA 7 Ill.) 260 Fed. (2d) 275.
Upon holding Roback at the time of the collision was engaged in the 'automobile business' the Court of Appeals, as to The Home Insurance Company policy, stated:
The policy issued Roback by Home Insurance Company is an 'owner's' policy and provides the coverage required by the Financial Responsibility Act for such a policy. T.C.A. 59--1223(b)(2). The limitation placed on coverage of the insured under the policy was limited to the use or maintenance of a non-owned automobile by the insured while the insured 'is employed or otherwise engaged in the automobile business.'
This court has held that such an exclusion is reasonable in view of the increased hazard growing out of the use of non-owned automobiles by a person operating a parking lot or a parking garage. Pollard v. Safeco Insurance Company, 52 Tenn.App. 583, 376 S.W.2d 730.
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