Aetna Casualty and Surety Company v. Miller

• Decision Date: 18 August 1967
• Docket Number: No. KC-2483.,KC-2483.
• Citation: 276 F. Supp. 341
• Parties: AETNA CASUALTY AND SURETY COMPANY, a Corporation, Plaintiff, v. Patricia Annette (Weeks) MILLER, Eleanor Fitch, and Carl M. Hurlbert, Defendants.
• Court: U.S. District Court — District of Kansas

276 F. Supp. 341

AETNA CASUALTY AND SURETY COMPANY, a Corporation, Plaintiff, v. Patricia Annette (Weeks) MILLER, Eleanor Fitch, and Carl M. Hurlbert, Defendants.

No. KC-2483.

United States District Court D. Kansas.

August 18, 1967.

Garry W. Lassman, Keller, Wilbert, Palmer & Bieber, Pittsburg, Kan., for plaintiff.

J. John Marshall, R. L. White, Nulton, Letton, White & Nettels, Pittsburg, Kan., for defendants.

OPINION INCORPORATING FINDINGS OF FACT AND CONCLUSIONS OF LAW

THEIS, District Judge.

This case arises out of a complaint of the plaintiff, Aetna Casualty and Surety Company, under the Federal Declaratory Judgment Act, 28 U.S.C.A. § 2201 et seq., against the defendants Patricia Annette (Weeks) Miller, Eleanor Fitch, and Carl M. Hurlbert, seeking a judgment of the Court holding that the provisions of a certain automobile liability insurance policy issued by it do not cover the subject matter of negligence litigation in which the present parties are parties in another lawsuit in another court.

The policy of insurance, which is the subject matter of this lawsuit, was issued on or about the 28th day of October, 1961, to one Albert Wayne Weeks, covering his automobile described as a 1958 Studebaker Champion, in the amount of $5,000.00 for property damage, and $10,000.00 liability for injuries to persons as a result of the operation of a vehicle or vehicles of the named insured. As a preliminary matter, the Court finds it has jurisdiction of the action because of diversity of citizenship of the parties and requisite jurisdictional amount.

The facts are that the defendant Patricia Annette (Weeks) Miller, hereinafter referred to as "Patricia," and Albert Wayne Weeks, hereinafter referred to as "Albert," were married on May 10, 1957, in Amarillo, Texas. At that time, and at all times pertinent to the facts in this matter, Albert was in the military service. On December 24, 1961, following some marital difficulties, and while the couple were living in Texas, Patricia left Albert and returned to her home in Pittsburg, Kansas, where her parents resided. At that time she took with her the two minor children born of the marriage and a portion of her personal belongings and necessities, apparently mostly clothing, that she was able to transport with her at that time. On January 23, 1962, Albert instituted an action of divorce against Patricia in the Circuit Court of Jackson County, Missouri, in Independence, Missouri. Thereafter, in February, 1962, Albert was transferred to Richards-Gebauer Air Force Base near Kansas City, and lived at 613 Red Road, Independence, Missouri, with his parents, his sister, and his sister's children, where he stored most of the furniture and household possessions of the parties. Between the time of separation, December 24, 1961, and June 17, 1962, Patricia on several occasions took the children to Independence so that they could see Albert and visit with him. Likewise, on several occasions Albert drove to Pittsburg, Kansas, to see his children, where he stayed at motels, such visits being for several days at a time.

On or about June 4, 1962, Patricia purchased a 1952 Buick automobile from her father and had it titled in her name only. Thereafter, on June 17, 1962, while driving this automobile, she was involved in a collision in Pittsburg, Kansas, and as a result of fatal injuries to a passenger in her car, an action for damages was brought against Patricia in April of 1963, in the State District Court of Crawford County, Kansas. The plaintiff in the State Court suit against Patricia is Eleanor Fitch, one of the defendants in this action. Another defendant in this action, Carl M. Hurlbert, the driver of the other automobile involved in the fatal accident, was also named as a defendant in the State Court suit. In the State Court action for damages, Patricia has joined Aetna Casualty and Surety Company, the plaintiff here, as a third party defendant, seeking coverage under the policy issued to Albert by the plaintiff, Aetna Casualty and Surety Company, which policy was in effect on June 17, 1962.

From the date the divorce proceedings were instituted by Albert against Patricia in the Circuit Court of Jackson County, Missouri, the outcome was delayed as a result of legal proceedings in the suit and no divorce was granted until October 11, 1962. After the date of the filing of the divorce action Patricia and Albert never maintained any permanent residence of their own together, he living, as stated, with his parents in Independence, and she living in Pittsburg, Kansas, except for the visitations aforesaid.

It is the contention of the plaintiff insurance company in this action that the provisions in its policy introduced in evidence as Plaintiff's Exhibit 1, covered only Albert, and do not and never did apply to Patricia or the vehicle she was driving at the time of her accident on June 17, 1962, for the reason, the company contends, that Patricia was not within the definition of a "named insured" within the provisions of the policy, nor operating the described automobile in the policy.

Pertinent provisions of the insurance policy to the decision in this case are as follows:

"Persons Insured.

The following are Insureds under Part I:

(a) With respect to the owned automobile,

(1) the named Insured and any resident of the same household;

* * * * * *

"Definitions.

Under Part I:

`named Insured' means the individual named in item 1 of the declarations and also includes his spouse, if a resident of the same household;

* * * * * *

`owned automobile' means a private passenger, farm or utility automobile or trailer owned by the named Insured, and includes a temporary substitute automobile; * * *." (Emphasis supplied)

Also pertinent, under the part of the policy outlining CONDITIONS, section 2 thereof, relating to "Premium" reads as follows:

"2. Premium — If the named Insured disposes of, acquires ownership of or replaces a private passenger, farm or utility automobile or, with respect to Part III, a trailer, he shall inform the Company during the policy period of such change. Any premium adjustment necessary shall be made as of the date of such change in accordance with the manuals in use by the Company. The named Insured shall, upon request, furnish reasonable proof of the number of such automobiles or trailers and a description thereof."

Whether the provisions of the policy in question cover and insure the accident of Patricia, depends principally upon the interpretation of who are insured persons, and the specific meaning of that part of the definition of "named Insured," which includes the spouse of a policy holder, "if a resident of the same household." It therefore becomes pertinent to interpret the phrase "if a resident of the same household." The precise question of fact is whether, under any reasonable interpretation of the policy, was Patricia, at the time of the accident, a resident of the household of Albert, her husband?

At the trial of this case much of the evidence introduced before the Court consisted of conflicting testimony on each side as to whether, after the initial separation of Patricia and Albert on December 24, 1961, and prior to the divorce decree entered on October 11, 1962, the parties thereafter lived together as husband and wife. It was the testimony of the witness Albert that such events never occurred during the visitations of Patricia and Albert after their initial separation. It was very positively the testimony of Patricia that such events did occur whenever they were together. As a matter of credibility, the Court believes the testimony of Patricia more probably states the truth. However, it is the opinion of the Court that its decision need not rest on such a fact only, but on other specific facts and for legal reasons much more general in their scope.

In interpreting the provisions of the policy it would be well to remember certain long-established axioms of law in this jurisdiction. The law is well laid down in Kansas, as in most other states, that a policy of insurance should be strictly construed against the insurer, and liberally in favor of the insured. See Insurance Company v. Milling Company, 69 Kan. 114, 76 P. 423. Stating the same principle in a different way, ambiguous, inconsistent, or uncertain provisions are construed against the insurer, and most favorably to the insured. See Evans v. Woodmen Accident Association, 102 Kan. 556, 171 P. 643, L.R.A.1918D, 122; Liberty Life Insurance Co. v. Guthrie, 148 Kan. 907, 84 P.2d 891; Spence v. New York Life Ins. Co., 154 Kan. 379, 118 P.2d 514, 137 A.L.R. 753; Baker v. Continental Ins. Co., 155 Kan. 26, 122 P.2d 710; Saul v. St. Paul-Mercury Indemnity Co., 173 Kan. 679, 250 P.2d 819; Lavin v. State Farm Mutual Automobile Ins. Co., 193 Kan. 22, 391 P.2d 992. Or, as stated in the case of Liberty Life Insurance Co. v. Guthrie, supra:

"The insurer prepared its own policy. It was its duty to make its meaning clear. Where it fails to do so it, and not the insured, must suffer the consequences."

Again, referring to Lavin v. State Farm Mutual Automobile Ins. Co., supra, the Kansas Supreme Court recently approved rules of construction for insurance policies, citing a Texas case, as follows:

"`The rules of construction to be observed in construing an insurance policy are well stated * * * as follows:

`(1) An insurance policy will be construed strictly against the insurer;

(2) when the terms of an insurance contract are capable of two or more constructions and under one a recovery is allowable and under the other it is denied, the construction which permits recovery will be given the policy; (3) forfeitures of insurance coverage is not favored; and (4) if a fair and reasonable construction of an insurance contract will permit, a meaning will be given to its language that effectuates a contract of insurance rather than defeats it.'"

The plaintiff here, arguing for a narrow construction of the terms of the...