Atlas Assur. Co., Ltd. v. General Builders, Inc.

• Decision Date: 30 August 1979
• Docket Number: No. 3737,3737
• Citation: 93 N.M. 398,1979 NMCA 108,600 P.2d 850
• Parties: ATLAS ASSURANCE COMPANY, LTD., and Pacific Coast Properties, Inc., a foreign corporation, Plaintiffs-Appellants, v. GENERAL BUILDERS, INC., a New Mexico Corporation, and Kenneth P. Thompson Company, Inc., a New Mexico Corporation, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 850

600 P.2d 850

93 N.M. 398

ATLAS ASSURANCE COMPANY, LTD., and Pacific Coast Properties Inc., a foreign corporation Plaintiffs-Appellants, v. GENERAL BUILDERS, INC., a New Mexico Corporation, and Kenneth P. Thompson Company, Inc., a New Mexico Corporation, Defendants-Appellees.

No. 3737.

Court of Appeals of New Mexico.

Aug. 30, 1979.

Lawrence H. Hill, Civerolo, Hansen & Wolf, Albuquerque, for plaintiffs-appellants.

Terry D. Farmer, Nordhaus, Moses & Dunn, Albuquerque, for General Builders.

Roy F. Miller, Jr., Miller & Melton, Albuquerque, for Kenneth P. Thompson Co.

Michael P. Watkins, Oldaker & Oldaker, Albuquerque, for Kenneth P. Thompson Co.

OPINION

LOPEZ, Judge.

Plaintiff-appellant, Atlas Assurance Company, Ltd., (Atlas), brought this subrogation action in the District Court of Bernalillo County against defendants-appellees, General Builders, Inc. (General Builders) and Kenneth P. Thompson Company, Inc. (Thompson), for monies paid to plaintiff-appellant, Pacific Coast Properties, Inc. (PCP). These monies were paid pursuant to an insurance policy issued by Atlas to PCP. Appellees' motion for summary judgment was granted and appellants appeal. We reverse and remand.

On December 21, 1973, PCP entered into a contract with General Builders for the construction of a shopping center in Portales, New Mexico. PCP was the owner of the project. Atlas issued an insurance policy to PCP on January 14, 1974, to cover property damage to the project. On May 3, 1974, another contract was executed between General Builders and PCP for the construction of an addition to the shopping center. On March 21, 1974, Thompson entered into a subcontract with General Builders for the masonry work on the project. During June of that year, winds blew down portions of the masonry walls on three occasions. Subsequently, PCP submitted proof of loss to Atlas, and Atlas paid PCP for the losses sustained. Thompson rebuilt the walls and was paid out of the insurance proceeds for the repair work.

On May 12, 1977, Atlas filed a complaint against General Builders and Thompson. Atlas's complaint alleged that the damage done to the masonry walls was caused by appellees' negligence, and it further claimed that Atlas, as insurer, was entitled to subrogation rights under the policy issued to PCP. Appellees answered alleging that they were co-insureds under the policy and that, consequently, Atlas could not subrogate against them. In granting appellees' motion for summary judgment, the trial court agreed with appellees' allegations. The issue on appeal is whether the court properly granted appellees' motion. In order to determine this issue, the question of whether appellees are co-insureds under the Atlas policy must be decided.

To decide this latter question, we must interpret those policy provisions which are pertinent to this issue. Accordingly, we are guided by the following principles of insurance law. An insurance policy is a contract and is generally governed by the law of contracts. The rights and duties of the parties are measured by what they intended, what they mutually agreed to and what their minds met upon. Vargas v. Pacific National Life Assurance Company, 79 N.M. 152, 441 P.2d 50 (1968); Thompson v. Occidental Life Ins. Co. of Cal., 90 N.M. 620, 567 P.2d 62 (Ct.App.), Cert. denied, 91 N.M. 4, 569 P.2d 414 (1977). If it can be accomplished, the meaning of the contract must be ascertained from a consideration of the written policy itself. Extrinsic evidence is not admissible to determine the intent of the parties unless there is an uncertainty and ambiguity in the contract. Hoge v. Farmers Market & Supply Co. of Las Cruces, 61 N.M. 138, 296 P.2d 476 (1956); See McKinney v. Davis, 84 N.M. 352, 503 P.2d 332 (1972).

In determining whether an uncertainty or ambiguity exists, the policy must be considered as a whole. See Ivy Nelson Grain Co. v. Commercial U. Ins. Co. of N.Y., 80 N.M. 224, 453 P.2d 587 (1969). A single sentence or paragraph may not be selected as support for either the decision that a contract is clear and plain as to its meaning, or that it is uncertain, indefinite and ambiguous. Hoge v. Farmers Market & Supply Co. of Las Cruces,supra. In addition, words and terms must be read in the usual and ordinary sense, unless some different meaning is required. Cain v. National Old Line Insurance Company, 85 N.M. 697, 516 P.2d 668 (1973). Whether an ambiguity exists is a question of law to be decided by the court. Thompson v. Occidental Life Ins. Co. of Cal., supra. In determining this question, the test to be used is whether the policy provision is fairly susceptible of two different constructions by reasonably intelligent men. Alvarez v. Southwestern Life Insurance Co. Inc., 86 N.M. 300, 523 P.2d 544 (1974). However, resort will not be made to a strained construction for the purpose of creating an ambiguity when no ambiguity in fact exists. Safeco Ins. Co. of America, Inc. v. McKenna, 90 N.M. 516, 565 P.2d 1033 (1977).

If an ambiguity exists in the policy, the general rule is that a liberal construction favorable to the insured should be adopted. See Vargas v. Pacific National Life Assurance Company, supra; Thompson v. Occidental Life Ins. Co. of Cal., supra. This general rule, however, operates only after the insured has been determined. It does not operate in deciding whether a certain entity belongs to the insured class described in the policy. Accordingly, a third person who is not a party to a contract of insurance usually is not entitled to a construction in his favor in determining whether that third person is an insured under the policy. McBroome-Bennett Plumbing, Inc. v. Villa France, Inc., 515 S.W.2d 32 (Tex.Civ.App.1974); 44 C.J.S. Insurance § 308, at 1226 (1945).

The insurance policy between Atlas and PCP contains the following provisions which are relevant in determining whether appellees are insureds under the policy:

(1) INSURED: Pacific Coast Properties, Inc. and/or any subsidiary and/or affiliated and/or associated entities as are now or may hereafter be constituted for account of whom it may concern. Loss, if any, to be adjusted with and payable as directed by NAMED INSURED.

(2) PROPERTY COVERED

INDUSTRIAL & COMMERCIAL BUILDINGS

all of above while in course of construction, all materials while in transit and/or storage from points within the continental United States to the job site, and all when completed as provided herein, including foundations, additions, attachments and all other permanent fixtures belonging to and constituting part of or used in the service of said buildings or structures and all the property of the insured or for which the insured has assumed responsibility or is legally liable . .

(3) PERILS INSURED

This policy insures against all risks of direct Physical Loss of or Damage to the insured property, except as hereinafter excluded.

(4) EXTENSIONS OF COVERAGE

MATERIALS, EQUIPMENT AND SUPPLIES AND TEMPORARY STRUCTURES OF ALL KINDS INCIDENTAL TO THE CONSTRUCTION OF BUILDINGS AND STRUCTURES, AND SIMILAR PROPERTIES BELONGING TO OTHERS FOR WHICH THE INSURED IS LIABLE:

All while at the described location and forming part of or contained in said buildings or temporary structures or while in cars at the described location or within three hundred feet (300') thereof, or while in the open at such location, or when adjacent thereto on sidewalks, streets, or alleys.

(5) PROPERTY NOT COVERED This policy does not insure: Contractor's (sic) or Sub-contractors' Tools and Equipment

Appellants interpret the above provisions to exclude appellees as insureds. More specifically, appellants contend Inter alia that provision (4) covers only property owned by PCP and property for which PCP is liable. They claim that this provision is evidence that Atlas and PCP did not intend to extend coverage but intended instead to restrict coverage. Put another way, appellants assert that the phrase, "for which the insured is liable," applies both to the term "similar properties" and to the terms "materials, equipment and supplies and temporary structures." Appellants argue that any other interpretation would render provision (5) inoperative since contractor's or subcontractors' tools and equipment would not be excluded if the phrase, "for which the insured is liable," applied only to the term "similar properties." In addition, appellants argue that provision (5) is evidence that Atlas and PCP did not intend to include appellees as co-insureds.

Appellees interpret the above provisions to include themselves as insureds under the policy. They claim, among other things, that the terms in provision (1), "and/or any subsidiary and/or affiliated and/or associated entities," are broad enough under the present facts to include them as insureds. Additionally, they assert that the phrase, "loss, if any, to be adjusted with and payable as directed by named insured," contemplates more than one insured. Appellees further interpret provision (2) as providing coverage for one hundred percent of the property included in the various construction agreements between the parties. Based on this interpretation, appellees conclude that they are insureds under the policy. Appellees also contend that provision (5), since it clearly excludes only contractors' or subcontractors' tools and equipment, creates the implication that other property owned by such entities are included in the policy's coverage. Finally, appellees argue that the phrase, "for which the insured is liable," in provision (4) applies only to the term "similar properties" and that, consequently, the terms "materials, equipment and supplies and temporary structures" include appellees' property. Accordingly, appellees assert that they are insureds under the Atlas policy. Both appellants and appellees present other interpretations not only of the above provisions but also of other policy provisions to support their positions.

We do not agree that any...