American Standard Ins. Co. of Wis. v. Tournor

• Decision Date: 26 March 1971
• Docket Number: No. 37644,37644
• Citation: 186 Neb. 585,185 N.W.2d 267
• Parties: AMERICAN STANDARD INSURANCE COMPANY OF WISCONSIN, a Corporation, Appellant, v. Larry E. TOURNOR et al., Appellees.
• Court: Nebraska Supreme Court

Page 267

185 N.W.2d 267

186 Neb. 585

AMERICAN STANDARD INSURANCE COMPANY OF WISCONSIN, a Corporation, Appellant, v. Larry E. TOURNOR et al., Appellees.

No. 37644.

Supreme Court of Nebraska.

March 26, 1971.

Syllabus by the Court

1. If a contract prepared by an insurer is reasonably open to different interpretations, one favorable to the insurer and one advantageous to the insured, the one favorable to the insured will be adopted.

2. The judgment of the trial court in an action at law where a jury has been waived has the effect of a verdict of a jury and it will not be set aside unless clearly wrong.

Luebs, Tracy, Huebner & Dowding, James A. Beltzer, Grand Island, for appellant.

H. L. Blackledge, Kearney, E. H. Powell, Larry G. Carstenson, Aurora, for appellees.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.

McCOWN, Justice.

This is a declaratory judgment action to determine whether an exclusion clause in an automobile insurance policy applied to exclude coverage for a particular accident. The clause excluded coverage to any automobile '* * * while used in any prearranged racing or speed contest.' The district court held that the exclusion was not applicable and that the policy was in full force and effect.

The plaintiff, American Standard Insurance Company, was the automobile insurance carrier of the defendant, Larry E. Tournor, on a policy covering a 1965 Oldsmobile automobile owned by him and his wife. At approximately 2 a.m. on a Sunday morning in May 1968, Larry E. Tournor and one Gary Stevenson arranged to have a 'drag race' on a quarter-mile 'strip' on State Highway No. 14, north of Aurora, Nebraska. Both drivers were familiar with the 'drag strip' on the highway and its starting point and finishing line. A number of spectators gathered around the starting point. Michael Tournor, a brother of Larry, drove his Pontiac automobile north past the finish line of the drag strip, parked it on the east side of the highway headed west, and turned his lights out. There were six people in the car.

The two competing cars lined up side by side at the starting point, headed north. The drivers were alone in their cars. Larry Tournor's car was in the right lane of the two-lane blacktop highway. Gary Stevenson's car was in the left lane. The starter stood between the two cars and slightly in front and started the race with arm signals. Larry Tournor's automobile almost immediately gained a substantial advantage. By the time he reached approximately the halfway point of the quarter-mile strip, Gary Stevenson gave up the race, decelerated and pulled over into the right-hand lane behind Larry Tournor's car. At a point approximately three-fourths of the distance down the strip, and before the finish line, Larry Tournor saw Stevenson's lights in his rearview mirror, and ceased accelerating. Larry Tournor intended to proceed to the next intersection approximately half a mile away for the purpose of turning around and coming back. Meanwhile, Stevenson had slowed down to approximately 15 to 20 miles per hour, had pulled his right wheels off on the shoulder, and was preparing to turn around. At a point somewhere between one-eighth and one-fourth of a mile north of the finish line, the Michael Tournor car, which had been parked on the east side of the road headed westerly with its lights out, suddenly pulled onto the highway in front of Larry Tournor. Larry swung his car to the left and the vehicles met almost headon in the west or southbound lane.

Estimates of the maximum speed attained by Larry Tournor's automobile during the race varied from 75 miles per hour to 95 miles per hour. At the point of the collision, the only evidence is that his speed was 60 to 70 miles per hour. Many of the spectators quit watching the race as soon as it became apparent to them that Larry Tournor had won.

A jury trial was waived by the parties and the trial court specifically found that any prearranged race or speed contest shown by the evidence was fully terminated prior to the collision; that the exclusion in the policy did not apply; and that the plaintiff insurance company was obliged to defend its insured under the policy. The trial court's declaratory judgment was entered accordingly.

There is no dispute but that a prearranged drag race took place. The evidence is virtually uncontradicted that the race had been completed. The principal assignment of error rests on the contention that under the language of the exclusion here, the Larry Tournor car was still being 'used in' a prearranged racing contest, after the competitive portion of the racing contest was completed. The exclusion here read: 'This policy does not apply:

'Under any of the coverages,

'a. to any automobile (1) while rented or leased to others by the insured, (2) while used as a public or livery conveyance, or (3) while used in any prearranged racing or speed contest * * *.'

Interpretation of exclusion (3) is before us for the first time. Similar clauses have been interpreted only infrequently anywhere. A 1969 annotation at 23 A.L.R.3d 1444 cites only four cases on the subject, ranging from 1923 to 1966. See, Alabama Farm Bureau Mut. Cas. Ins. Co., Inc. v. Cofield, 274 Ala. 299, 148 So.2d 226; Mulconery v. Federal Auto. Ins. Assn., 230 Ill.App. 236; Country Mut. Ins. Co. v. Bergman, 38 Ill.App.2d 268, 185 N.W.2d 513; Alabama Farm Bureau Mut. Cas. Ins. Co., Inc. v. Goodman, 279 Ala. 538, 188 So.2d 268, 23 A.L.R.3d 1437. The language of the exclusionary clauses in those cases varied somewhat and there were widely differing fact situations. It is quite apparent that no general rule of law can be formulated. The applicability of such an exclusionary clause depends upon its language and the particular foundational facts to which the specific language must be applied.

In only one of the cases cited did the court find that the policy exclusion applied. In that case, the accident occurred during the course of the race and the person killed was a participant. The language involved excluded coverage 'if the injury or damage is caused by an automobile race or competitive speed test * * *.' See Alabama Farm Bureau Mut. Cas. Ins. Co., Inc. v. Goodman, Supra.

The language used in the policy now before us obviously did not intend to exclude all races and all speed contests. At least one court has interpreted almost identical language as referring to a race or speed contest of a commercial or business type. See Country Mut. Ins. Co. v. Bergman, Supra (1962). The word 'while' connotes a specific segment of time. The word 'in' can mean 'in the course of' or 'during.' Either construction terminates the exclusion at the identical time the excluded event terminates. Such a construction is particularly indicated when a noncommercial race is held on a public highway, where policy coverage is specific and intended both before and after the occurrence of the excluded race.

We have held many times that if a contract prepared by an insurer is reasonably open to different interpretations, one favorable to the insurer and one advantageous to the insured, the one favorable to the insured will be adopted. Rolfsmeier v. Implement Dealers Mut. Ins. Co., 182 Neb. 150, 153 N.W.2d 367. The ultimate determination of whether or not an exclusionary clause applies in a case such as this inevitably involves factual determinations. Section 25--21,157, R.R.S.1943, provides that when a declaratory judgment proceeding '* * * involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.' Here a jury trial was waived. The judgment of the trial court in an action at law where a jury has been waived has the effect of a verdict of a jury and it will not be set aside unless clearly wrong. Winchell...