Allstate Insurance Company v. Stevens

• Citation: 313 F. Supp. 819
• Decision Date: 28 May 1970
• Docket Number: Civ. No. 2831.
• Parties: ALLSTATE INSURANCE COMPANY, an Illinois Corporation, Plaintiff, v. Robert G. STEVENS and Himeyo Date, Defendants.
• Court: United States District Courts. 9th Circuit. United States District Court (Hawaii)

313 F. Supp. 819

ALLSTATE INSURANCE COMPANY, an Illinois Corporation, Plaintiff, v. Robert G. STEVENS and Himeyo Date, Defendants.

Civ. No. 2831.

United States District Court, D. Hawaii.

May 28, 1970.

Alexander C. Marrack, Honolulu, Hawaii (Anthony & Waddoups, Honolulu, Hawaii, of counsel) for plaintiff.

Kazuo Oyama, Honolulu, Hawaii, for defendants.

DECISION

TAVARES, District Judge.

The question presented to the Court is: "Is Allstate liable to defend defendant Stevens and respond in damages for injuries suffered by defendant Date as a result of an accident on January 17, 1968, wherein Date, a pedestrian, was struck at an intersection by a 1958 Volkswagen owned and driven by defendant Stevens." The Court answers the question in the affirmative.

The facts of this case present very little conflict. The defendant Robert G. Stevens, acquired a 1962 Oldsmobile in August of 1967. Insurance for this vehicle was issued by plaintiff Allstate Insurance Company on August 18, 1967, under liability policy No. 34 207T 279 08-18 (Ex. P-1, P-2) providing Bodily Injury coverage of $30,000/$85,000 for a term of one year.

Sometime in about March of 1967 defendant Stevens had purchased a 1958 Volkswagen Kombi, Station Wagon from the Taylor Agencies of Honolulu. A Certificate of Ownership was issued to Stevens under date of March 31, 1967 (Ex. P-5). A witness from the Taylor Agencies testified that this vehicle was in operable condition and had been in regular use by them until sold to Stevens. Stevens testified that the Volkswagen had defective brakes and needed motor work to such an extent that he and a friend towed the vehicle from Taylor Agencies to his home rather than risk operating it. It was moved short distances around and near Stevens' home over a period of several months before the necessary repairs were accomplished. Evidence presented to the Court was conflicting as to when the Volkswagen really became operable. The direct examination of Stevens suggested a period near Christmas of 1967, but cross examination produced answers by Stevens indicating a time as early as late August or September when he began to use the vehicle. The Court does not believe that this date is too crucial to the result reached herein. The Court does find, however, that the Volkswagen was not operable on August 18, 1967, when Allstate issued the policy covering the 1962 Oldsmobile. A representative of Allstate called at the Stevens home to verify the coverage which their policy undertook to provide. An internal memorandum, bearing a follow up date of 9/20/67 (Ex. D-2) indicates that Allstate was aware of the fact that Stevens was the owner of a Volkswagen in addition to the 1962 Oldsmobile and a company representative made inquiry regarding it. Mr. Kim, the Allstate Agent through whom the Oldsmobile policy had been purchased, was informed that the Volkswagen was not in use ("brake system is shot"). He was further informed that Mr. Stevens would add this vehicle to the existing policy when the car was repaired.

The only major factual dispute revolves about a request under date of January 8, 1968, whereby Stevens sought coverage for the Volkswagen under the policy previously issued as coverage for the 1962 Oldsmobile. A copy of a letter which Stevens testified he mailed to Allstate Insurance Company, Regional Office, 2882 Sand Hill Road, Menlo Park, California 94025, was received in evidence as (Ex. D-1). Stevens testified that he wrote this letter, retained the original which he had signed with a ball-point pen so that his signature appeared on the carbon copy, and mailed the copy to the California address. Stevens is employed as a warehouseman and his mailing of the copy is understandable in light of the work he performs. The "burned copy" which was received in evidence was provided to the Insurance Company at the request of their adjuster probably sometime in January of 1968. Stevens was unable to produce the "original" from which he testified he had made the copy, explaining simply that he could not find it, and had probably thrown it away after giving a copy to the company. A witness from the Menlo Park Regional Office testified that the records of that office failed to disclose the receipt of any communication from Stevens similar to Exhibit D-1. Counsel for Allstate registered his belief in the incredulity of Stevens' testimony and suggested that Stevens demonstrate his ability to compose and type a letter. Stevens obliged with the production of Exhibit P-13, thereby also allaying any apprehensions which the Court may have entertained. Stevens probably does not conduct his affairs in the most orthodox manner, but the record in this case fails to cast any aspersions upon the reliability of his testimony. The evidence further discloses that Stevens had never before carried insurance.

The evidence presented is confusing as to when the Volkswagen actually became operable. No proof whatever was presented which tended to establish that the Volkswagen was driven on the roadways of Honolulu before the policy date of August 18, 1967. Allstate's own records tend to indicate that the company became aware of Stevens' ownership of a second vehicle sometime in September of 1967 and after the policy date. Their inquiry revealed that the Volkswagen could not be driven at that time. Either Mr. or Mrs. Stevens was advised that the Volkswagen should be added to the policy which they had purchased as soon as it became useable. Plaintiff makes much of the fact that Stevens wrote to Menlo Park instead of merely using a telephone to advise Mr. Kim at the local Sears store, where the policy was purchased. Suffice it to say that Mr. Stevens was making payments to the Menlo Park office and certainly had an accurate and correct address for the company. Plaintiff also makes much of the fact that...