American Fidelity Co. v. Deerfield Valley Grain Co.

• Decision Date: 23 March 1942
• Docket Number: No. 166.,166.
• Parties: AMERICAN FIDELITY CO. v. DEERFIELD VALLEY GRAIN CO. et al.
• Court: U.S. District Court — District of Vermont

43 F. Supp. 841

AMERICAN FIDELITY CO. v. DEERFIELD VALLEY GRAIN CO. et al.

No. 166.

District Court, D. Vermont.

March 23, 1942.

Fenton, Wing & Morse, of Rutland, for American Fidelity Co.

Francis E. Morrissey, of Bennington, Vt., for Deerfield Valley Grain Co., Perry Z. Whitney and Walter A. Hall.

Preston F. Gibson, A. L. J. Crispe, and E. F. Berry, all of Brattleboro, Vt., for J. P. Reando.

LEAMY, District Judge.

This is a petition for a declaratory judgment in which the American Fidelity Company, hereinafter called the petitioner, asks the Court to declare, determine and adjudicate:

1. Whether or not a certain motor vehicle liability policy issued by the petitioner to the petitionee, Deerfield Valley Grain Company, furnishes coverage for injuries sustained by the petitionee, J. P. Reando, as a result of an accident which happened on November 12, 1938, and

2. Whether under the declarations, insuring agreements, exclusions and conditions contained in said policy the petitioner has the duty to defend an action then about to be brought by Reando against the petitionees, the Deerfield Company, Hall and Whitney, or any of them.

Hearing was had on the petition, and from the evidence introduced, the exhibits and the concessions made I find the following facts.

Findings of Fact

1. On June 2, 1938 the petitioner issued to the Deerfield Valley Grain Company a policy of liability insurance being policy numbered 99674 which policy covered a 1937 Ford one and one-half ton truck with the motor number BB XXXXXXXXX, which truck was owned by the Deerfield Valley Grain Company.

2. Said policy provides among other things as follows:

"III Definition of `Insured'. The unqualified word `insured' wherever used in coverages A and B and in other parts of this policy, when applicable to these coverages, includes not only the named insured but also any person while using the automobile and any person or organization legally responsible for the use thereof, provided that the declared and actual use of the automobile is `pleasure and business' or `commercial', each as defined herein, and provided further that the actual use is with the permission of the named insured. The provisions of this paragraph do not apply:

"(a) to any person or organization with respect to any loss against which he has other valid and collectible insurance;

"(b) to any person or organization with respect to bodily injury to or death of any person who is a named insured;

"(c) to any person or organization or to any agent or employee thereof, operating an automobile repair shop, public garage, sales agency, service station, or public parking place, with respect to any accident arising out of the operation thereof;

"(d) to any employee of an insured with respect to any action brought against said employee because of bodily injury to or death of another employee of the same insured injured in the course of such employment in any accident arising out of the maintenance or use of the automobile in the business of such insured."

"II Defense, Settlement, Supplementary Payments. It is further agreed that as respects insurance afforded by this policy under coverages A and B the Company shall

"(a) Defend in his name and behalf any suit against the insured alleging such injury or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the Company shall have the right to make such investigation, negotiation and settlement of any claim or suit as may be deemed expedient by the Company."

Exclusions

"This Policy Does Not Apply:

"(e) under coverage A to bodily injury to or death of any employee of the insured while engaged in the business of the insured, other than domestic employment, or in the operation, maintenance or repair of the automobile; or to any obligation for which the insured may be held liable under any workman's compensation law."

3. This policy was in full force and effect on November 12, 1938.

4. On November 12, 1938 Perry Z. Whitney was Vice-Principal or Vice-President of the Deerfield Valley Grain Company and Walter Hall and J. P. Reando were employees of the Deerfield Valley Grain Company. On that date Whitney instructed Hall and Reando to go with him on a business trip to Marlboro, Vermont. The purpose of the trip was to make deliveries and obtain wood which belonged to the Deerfield Valley Grain Company in Marlboro, Vermont, and transport it to the Deerfield Valley Grain Company's place of business in Wilmington, Vermont. Hall and Reando went on this trip as employees under the direct supervision of Whitney. Neither Hall nor Reando nor Whitney were engaged in domestic employment. The truck described above and covered by the policy described above was the truck used on this business trip. While on this business trip and during the hours of employment, Reando sustained injuries caused by accident resulting from the use of said Ford truck. At the time Reando received his injuries the truck was being operated by Hall under the supervision of Whitney. At the time of the accident Hall, Whitney and Reando were employees of the Deerfield Valley Grain Company.

5. On July 29, 1939 Reando instituted suit in this Court against the Deerfield Valley Grain Company alleging in substance that on the 12th day of November, 1938 and while he was in the employ of the Deerfield Company and was under the direct supervision, order and control of Whitney, and while so employed that he accompanied the truck in question and which was driven by Hall on a trip to Marlboro, Vermont, to secure wood belonging to the Deerfield Company; that Whitney was present and in full and complete charge of the truck; that while the truck was proceeding to its destination and while ascending a hill in Marlboro it became necessary on account of soft roads to apply chains to the wheels, and to that end Reando was instructed to crawl underneath the truck; that while he was under the truck and engaged in placing the chains on the wheels, and upon order of Whitney, Hall started the truck; that Reando was run over and was injured.

Conclusions of Law

The suit of Reando against the Grain Company already instituted, and any suit hereafter instituted by Reando against Hall and Whitney or either of them, arising out...