Allstate Insurance Company v. Stevens

• Decision Date: 21 July 1971
• Docket Number: No. 26429.,26429.
• Citation: 445 F.2d 845
• Parties: ALLSTATE INSURANCE COMPANY, a corporation, Plaintiff-Appellant, v. Robert G. STEVENS and Himeyo Date, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

445 F.2d 845 (1971)

ALLSTATE INSURANCE COMPANY, a corporation, Plaintiff-Appellant, v. Robert G. STEVENS and Himeyo Date, Defendants-Appellees.

No. 26429.

United States Court of Appeals, Ninth Circuit.

July 21, 1971.

Edward R. Bendet (argued), Alexander C. Marrack, Honolulu, Hawaii, for plaintiff-appellant.

Kazuo Oyama (argued), Honolulu, Hawaii, for defendants-appellees.

Before KOELSCH, CARTER and KILKENNY, Circuit Judges.

JAMES M. CARTER, Circuit Judge:

Allstate, in a diversity action brought for declaratory relief, was held obligated to defend Stevens and respond in damages for liability arising out of the use of Stevens' 1958 Volkswagen. Allstate appeals, challenging the trial judge's conclusion, D.C., 313 F.Supp. 819, that the automobile in question was covered by the policy provision relating to the insured's use of an automobile of which he "acquires ownership" during the policy term. It contends: (1) the automatic insurance provision does not apply to an automobile owned by the insured at the time of the issuance of the policy, not covered therein, which becomes operable during the policy period; (2) the trial court's findings of fact, as to when the Volkswagen became operable, were clearly erroneous. We agree with the appellant's first contention and therefore reverse.

Allstate issued a policy to Robert Stevens covering his 1962 Oldsmobile for a year, from August 18, 1967 to August 18, 1968. The policy in addition to covering the Oldsmobile, covered his use of "an additional * * * automobile of which the named insured acquires ownership."

At the time the policy was issued, Stevens also owned a 1958 Volkswagen with defective brakes. Stevens chose not to insure the Volkswagen at this time, allegedly because he did not use it. At a later time the brakes were repaired and on January 17, 1968, the car became involved in an accident. Arising out of this accident, a suit was brought by Himeyo Date against Stevens. Allstate denied coverage but assumed Stevens' defense in the action, under an agreement with Stevens reserving its right to deny coverage in the event of an adverse verdict. After a jury verdict in Date's favor, Allstate denied liability under the policy.

The policy issued to Stevens on his Oldsmobile provided coverage for

"* * * an additional private passenger or utility automobile of which the named insured acquires ownership, provided notice of its delivery be given to Allstate within the policy term then current, or if delivery is within 30 days before the end of such term, then within 30 days after delivery." Emphasis added

It should be noted that the policy speaks prospectively in the use of the words "acquires ownership." Howe v. Crumley Jones & Crumley Co., (Ohio App. 1944) 44 Ohio L.Abs. 115, 120, 57 N.E.2d 415, 418, concerns an "acquires ownership clause" similar to the one in the case at bar and holds that the language is prospective in its connotation.

The trial court gave the word "acquires" its plain, prospective meaning. However, it ruled that the term "acquires ownership" was to be construed to mean the "acquisition of an operable automobile." It found that the Volkswagen was not "operable" in August of 1967 and that the insured, Stevens, acquired "ownership" of the vehicle when he had the brakes repaired some time between August 1967 and January 1968.

The trial court relied for its construction on Glens Falls Insurance Co. v. Gray, (5 Cir. 1967) 386 F.2d 520. We do not agree with...