Allstate Ins. Co. v. Humphrey

• Citation: 246 Md. 492,229 A.2d 70
• Decision Date: 02 May 1967
• Docket Number: No. 329,329
• Parties: ALLSTATE INSURANCE COMPANY v. Floyd Junior HUMPHREY et al.
• Court: Court of Appeals of Maryland

Page 492

246 Md. 492

229 A.2d 70

ALLSTATE INSURANCE COMPANY v. Floyd Junior HUMPHREY et al.

No. 329.

Court of Appeals of Maryland.

May 2, 1967.

F. Gray Goudy, Baltimore (Herbert Burgunder, Jr., Baltimore, on the brief), for appellant.

Alfred J. O'Ferrall, III, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Baltimore, on the brief), for appellee Unsatisfied Claim and Judgment Fund Board.

William A. Franch, Annapolis (Wray & Serio, Annapolis, on the brief), for appellee Floyd Junior Humphrey.

Before HAMMOND, C. J., and HORNEY, MARBURY, OPPENHEIMER, and BARNES, JJ.

OPPENHEIMER, Judge.

The question before us, on undisputed facts, is the meaning of the clause of an insurance policy providing coverage to any relative of the named insured with respect to a non-owned private passenger automobile 'not regularly furnished for use of such relative.' The appellee, Floyd Junior Humphrey (Floyd) instituted suit in the Circuit Court for Anne Arundel County against the appellant, Allstate Insurance Company (Allstate) to determine whether Floyd was covered by Allstate's insurance policy, issued to Lester C. Hause (Hause), Floyd's father-in-law, with whom Floyd and his wife were living at the time of the accident. The policy was issued to Hause, who was the 'named insured.' The policy described an 'owned automobile' owned by Hause, which is not the automobile here involved. It is conceded by Allstate that, within the meaning of the policy, Floyd was a relative of Hause, the named insured, and was operating a 'non-owned' automobile.

The accident which gave rise to this litigation occurred on October 1, 1964, in Baltimore. Floyd was operating an automobile owned by his brother, James, who lives in Parsons, West Virginia. Floyd and his wife had been living in Baltimore with the Hauses since September 4, 1964. Floyd was working in Glen Burnie, Anne Arundel County. On September 28, Floyd and his wife drove to Parsons to visit James, in an automobile which Floyd owned. Floyd's car became disabled in Parsons, and he took it for repairs to a garage in that city. He was told the repairs would take about three days. Floyd had to return to work immediately. He told James of the difficulty and was given permission to drive James' 1958 Plymouth. Floyd told James he would have the car back in two weeks. The accident occurred four days after Floyd had borrowed his brother's car; at the time, Floyd was driving that car from work to the Hause residence. No restrictions had been imposed by James upon Floyd's use of the car; he used the car as he would have used his own. Floyd had driven his brother's car on only one previous occasion, for a week, six or seven months before the accident.

Floyd was sued as a result of the accident. Allstate was given notice, but denied any coverage under its policy and refused to defend the case, on the ground that, at the time of the accident, Floyd was driving James' automobile, which had been regularly furnished for Floyd's use. Judge Childs, in the court below noted that it was agreed by all the parties that the facts were not in dispute, and, on the facts, held that the automobile had not been regularly furnished for Floyd's use, within the meaning of the policy, and that, accordingly, Floyd was covered.

On this appeal, Allstate contends that the policy is not ambiguous and that its construction is therefore a matter of law for the courts. It contends further that, under the authorities, the policy should be construed to mean that an automobile is 'regularly furnished' for use where the bailee has a blanket permission to use the loaned vehicle, uses it as his own during the term of the bailment and has it continuously available for his use during the period. Allstate submits that it is the unrestricted use of the vehicle which is determinative and that the duration of the period in which that use is permitted is immaterial.

'It is well established that the provisions of insurance policies, prepared as they are by the insurance companies, are, in the case of ambiguities, to be construed strictly against the company preparing the policy and in favor of the insured. Ebert v. Millers (Mutual) Fire Insurance Company, 220 Md. 602, 155 A.2d 484 (1959).' Grain Dealers Mut. Ins. Co. v. Van Buskirk, 241 Md. 58, 71, 215 A.2d 467 (1965). Absent an ambiguity, Maryland has not adopted the rule followed in many jurisdictions that an insurance policy is to be most strongly construed against the insurer. Ebert, supra, at 220 Md. 611, 155 A.2d 484.

We agree with Allstate that the phrase of the policy here involved is not ambiguous in the sense that its general meaning is uncertain or that it can be construed in alternate ways. That a term cannot be precisely defined so as to make clear its application in all varying factual situations does not mean that it is ambiguous. We agree further that, as Chief Judge Brune said for the Court in Ebert, where the record presents no dispute as to the facts which are pertinent to the question of coverage, the question is 'one of the construction of the contract in the light of the language employed in the contract, the subject matter and the surrounding circumstances. When these are clear, it is the province of the court, rather than of the jury, to construe the contract.' 220 Md. at 610, 155 A.2d at 488. See also Keyworth v. Industrial Sales Co., 241 Md. 453, 458, 217 A.2d 253 (1966).

We do not agree, however, that the phrase 'not regularly furnished for use' is to be given the restrictive meaning for which Allstate contends. Under that contention, the element of the period for which the use of the non-owned automobile is furnished would be eliminated from consideration in determining whether the exclusion from coverage is applicable to the particular facts. Such a conception is not in accord with the general meaning of the words. Black's Law Dictionary, 4th ed. (1951), defines the word 'regular' as 'steady or uniform in course * * *, the antonym of 'casual' or 'occasional'.' The New English Dictionary (Oxford 1914) defines the word as follows: 'characterized by the presence or operation of a definite principle; marked or distinguished by steadiness or uniformity of action, procedure, or occurrence'; 'recurring or repeated at fixed times'; 'taking place or recurring at short uniform intervals;' 'habitually or customarily used * * *'; 'observing fixed times for, or never failing in, the performance of certain actions or duties'. Webster's 3d New International Dictionary (1961) gives the meaning of the word as: 'steady or uniform in course, practice, or occurrence'; 'steadily pursued'; 'functioning at proper intervals'; 'recurring * * * at stated, fixed, or uniform intervals'. The New Century Dictionary (1953) defines the word as: 'performing certain recurring actions or duties without failure, or observing fixed times for the performance of these'.

There are many decisions in other states which have considered the phrase involved in this case, and,...