Atkins v. Pacific Indem. Ins. Group
| Decision Date | 28 December 1979 |
| Docket Number | CA-CIV,Nos. 1,s. 1 |
| Parties | Alex M. ATKINS, Jr., Appellant, v. PACIFIC INDEMNITY INSURANCE GROUP, a California Corporation, Appellee. PACIFIC INDEMNITY INSURANCE GROUP, a California Corporation, Cross-Appellant, v. Alex M. ATKINS, Jr., Cross-Appellee. 4126, 1 4136. |
| Court | Arizona Court of Appeals |
O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by Steven D. Smith, and Finn, Finn & Finn by Elizabeth R. Finn, Phoenix, for appellant-cross-appellee.
Black, Robertshaw, Frederick, Copple & Wright, P. C. by Steven D. Copple, Jon R. Pozgay, Phoenix, for appellee-cross-appellant.
The critical question in this case is whether the appellee and cross-appellant, Pacific Indemnity Insurance Group (Pacific) could, and did, in the motor vehicle liability insurance policy issued to the City of Phoenix, exclude liability coverage for an employee of the City sued individually for negligently causing the death of another employee of the City of Phoenix.
Michael Dennis Hemschmeyer was a policeman employed by the City of Phoenix. On November 2, 1973, Hemschmeyer was fatally injured in a collision with a refuse truck driven by the appellant and cross-appellee, Alex Atkins, also an employee of the City. It has been stipulated that both Hemschmeyer and Atkins were attending to the duties of their respective employments at the time of the accident and driving city vehicles with the permission of their employer.
Hemschmeyer's survivors brought a wrongful death action against Atkins. Pacific subsequently commenced the instant proceeding for a declaratory judgment seeking a determination that its comprehensive liability insurance policy issued to the City of Phoenix did not require it to defend Atkins or to pay any judgment ultimately rendered against him. Pacific relied upon the following exclusions set forth in the portion of the policy insuring against bodily injury arising out of the use of automobiles Exclusions. This insurance does not apply:
(a) to any obligation for which the insured or any carrier as his insurer may be held liable under any workmen's compensation, unemployment compensation or disability benefits law, or under any similar law;
(b) to bodily injury to any employee of the insured arising out of and in the course of his employment by the insured. . . .
Pacific also relied upon the following provision under the portion of the coverage defining "persons insured":
II. PERSONS INSURED. Each of the following is an insured under this insurance to the extent set forth below:
None of the following is an insured:
(i) any person while engaged in the business of his employer with respect to bodily injury to any fellow employee of such person insured in the course of his employment;
On stipulated facts and cross-motions for summary judgment, the trial court in its judgment ruled that Pacific Indemnity owed a defense to Atkins, but its limits were the statutory minimums of $15,000-$30,000 required by the Safety Responsibility Act, A.R.S. § 28-1101, et seq., and not the $500,000 single limit coverage set forth in the policy. The trial court further ruled that Atkins was not entitled to reasonable attorneys' fees. Atkins has appealed from the determination that Pacific's exposure is limited to $15,000 and from denial by the trial court of his claim for attorneys' fees. Pacific has appealed from the adjudication that it has any responsibility to Atkins in the underlying wrongful death action.
The trial court by its ruling took the position that coverage in the minimum amount is mandated by the Safety Responsibility Act. Both divisions of this court, however, have upheld exclusions of coverage to employees of the named insured where the injured party is a fellow employee. Limon v. Farmers Insurance Exchange, 11 Ariz.App. 459, 465 P.2d 596 (1970); Martinez v. United States Fidelity & Guaranty Co., 119 Ariz. 403, 581 P.2d 248 (App.1978). The holdings in these cases are grounded upon A.R.S. § 28-1170(E), which provides in pertinent part as follows:
The motor vehicle liability policy need not insure liability under any workmen's compensation law nor liability on account of bodily injury to or death of an employee of the insured while engaged in the employment, . . . of the...
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