Agee v. Travelers Indemnity Company

• Decision Date: 29 May 1968
• Docket Number: No. 9441.,9441.
• Citation: 396 F.2d 57
• Parties: Bennie W. AGEE, Administrator of the Estate of M. Louise Agee, Deceased, Appellant, v. The TRAVELERS INDEMNITY COMPANY, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

396 F.2d 57 (1968)

Bennie W. AGEE, Administrator of the Estate of M. Louise Agee, Deceased, Appellant, v. The TRAVELERS INDEMNITY COMPANY, Appellee.

No. 9441.

United States Court of Appeals Tenth Circuit.

May 29, 1968.

Carl E. Moslander, Oklahoma City, Okl., for appellant.

Glenn H. Grubb, Oklahoma City, Okl. (David R. Dickey and Monnet, Hayes, Bullis, Grubb & Thompson, Oklahoma City, Okl., of counsel, on the brief), for appellee.

Before MARVIN JONES,^* Judge, Court of Claims, and LEWIS and BREITENSTEIN, Circuit Judges.

BREITENSTEIN, Circuit Judge.

The action in the district court was in the nature of garnishment to require appellee-defendant, The Travelers Indemnity Company, to pay a judgment for $21,632 obtained in Oklahoma state court against Chester Lee Sullivan for negligence which resulted in the death of M. Louise Agee. Appellant-plaintiff Bennie Agee is the administrator of the estate of Louise Agee. The district court denied recovery and this appeal followed.

Bennie and Louise were husband and wife until a final decree of divorce was entered a few days before her death. On July 3, 1963, Travelers issued a family automobile policy to B. W. Agee, the same person as Bennie W. Agee, covering a 1963 Chevrolet and a 1956 Buick. Bennie and Louise separated on June 21, 1964, with Bennie moving out of the family home and taking the children with him. On the basis of a renewal statement signed by Bennie, Travelers issued a renewal policy which was mailed to Bennie on May 5, 1964, and which was to become effective on July 3, 1964. No changes were made in the policy.

Divorce proceedings were begun on July 6, 1964. A divorce decree was entered on August 14, 1964. The decree awarded the 1956 Buick to Louise. On August 15, 1964, Louise traded the Buick for a 1964 Oldsmobile. On August 17 she returned the Oldsmobile to the garage from which she had purchased it for repairs. She did not have another car to drive, and the garage loaned her a 1959 Chevrolet. On August 19, Louise was a passenger in the 1959 Chevrolet which was being driven by Sullivan with her consent. An accident occurred and Louise was killed.

Bennie as administrator sued Sullivan and others for the death of Louise. Sullivan requested Travelers to defend on the ground that he was covered by the July 3 renewal policy of Travelers. Travelers refused to defend. Bennie obtained a judgment against Sullivan which was not satisfied. Bennie then brought the instant garnishment action against Travelers in federal district court.

If Louise was a named insured in the policy, Sullivan was covered because the 1959 Chevrolet would come within the definition of "owned automobile" and because Sullivan was driving with the permission of Louise. The policy defines "named insured" to mean "any individual named in Item 1 of the declarations and also includes his spouse, if a resident of the same household." Item 1 of the declarations reads that the named insured is B. W. Agee. At the end of the line provided for Item 2, which states the policy period, are two asterisks. Near the lower right-hand corner of the declarations page is a box. At the top of the box, in the same print as the policy form appears, "* * 12:01 A.M., standard time at the address of the named insured as stated herein." Typed in below that are the names B. W. Agee and M. Louise. Each name is followed by numbers, which under the undisputed testimony show the birth date of each and the number of the Oklahoma driver's license held by each. Below this is the name of the insurance agency. The claim is that the inclusion of the name of Louise in the box makes her a named insured.

A witness for Travelers testified that the typed information in the box was for underwriting purposes. The dates disclosed the ages of those regularly driving the automobiles and the license numbers furnished the means for checking traffic violations. He explained that the printed phrase following the two asterisks was to call attention to the fact that the period of policy coverage was determined by standard time prevailing at the address of the named insured.

Bennie argues that the inclusion of the name of Louise in the box creates a patent ambiguity which must be resolved against the insurer because it wrote the policy. We do not agree. The asterisks refer to Item 2 — not to Item 1 which clearly gives the name of the person insured. Nothing in the policy indicates any intent to expand the "named insured" by the inclusion of any names in the box. Although no explanation for the appearance of the name of Louise in the box appears in the policy, the lack of explanation does not create an ambiguity. So far as the insuring contract is concerned, the inclusion of the names in the box is surplusage and does not extend the coverage.

Counsel say that Bennie asked for and received a family policy to cover both himself and his wife and both cars. The 1956 Buick was paid for from a joint bank account to which Louise had not contributed for several years. It was licensed in the name of Louise. The 1963 Chevrolet was licensed in the name of Bennie. Travelers concedes that as long as Louise was the spouse of Bennie and lived in his household she was a named insured. When Bennie moved out of the family home with the children and established another household, she was no longer a named insured but was covered because she was driving an "owned automobile" within the policy terms with the consent of Bennie. This situation changed with the divorce decree which awarded the Buick to Louise. Bennie was no longer in a situation to grant permission for the use of the Buick and did not grant any permission to Sullivan.

Bennie seeks a judicial reformation of the policy to include Louise as a named insured. In Oklahoma there can be no reformation of a contract unless there is an antecedent agreement by which to make the rectification and the evidence must be sufficient to take the question out of the range of reasonable controversy because the court cannot make a new or different contract for the parties.¹ Bennie wanted and received coverage for himself and his wife and for the two cars. When the policy came up for renewal he requested no change. The only possibility of mistake arises after the separation. Bennie testified, and the insurance agent admitted, that after the separation he called the agent and told him of the separation and of his move to another home. He did not request a policy change and the agent made none because the coverage continued. The situation changed after the divorce. Bennie testified that in a second telephone conversation with the agent he reported that he and Louise were getting a divorce and he wanted the coverage on the Buick continued. The agent testified that after the conversation relating to the separation, he had no other conversation with Bennie until after the accident. The trial judge stated specifically that he adopted the testimony of the agent and found that the agent had no notice either of the divorce or of the trade of the Buick for the Oldsmobile until after the accident. In the circumstances there was no antecedent agreement on which reformation can be based. We are not concerned with what the responsibilities of Travelers might have been if the agent had known of the divorce.

In May, 1965, Travelers made a $500 medical payment under the policy to Bennie as administrator of the estate of Louise. Bennie argues that because of this payment Travelers is estopped to deny coverage. Before the payment Travelers had investigated the accident and denied liability. The agent who made the payment testified that he did so mistakenly and without reviewing the...