Berry v. Aetna Cas. & Sur. Co.
| Decision Date | 01 April 1969 |
| Docket Number | No. 11182,11182 |
| Citation | 221 So.2d 272 |
| Parties | Hollis BERRY, Jr., Plaintiff-Appellant, v. AETNA CASUALTY & SURETY COMPANY et al., Defendants-Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
Pugh & Nelson, Shreveport, for appellant.
Feist, Schober & Gray, Mayer & Smith, Shreveport, for appellees.
Before GLADNEY, BOLIN and DIXON, JJ.
Plaintiff seeks to recover damages for personal injuries sustained in an accident occurring during the course and scope of his employment as an electrician with Libbey-Owens-Ford Glass Company. Several parties were made defendants. The only defendants involved in this appeal are G. W. Goldsby, a fellow employee of plaintiff, and Insurance Company of St. Louis, insurer of Goldsby under a 'home owners policy'. From a summary judgment dismissing plaintiff's claim against Insurance Company of St. Louis plaintiff appeals.
As related to the summary judgment the facts are not in dispute. Goldsby was operating a large 'fork lift' truck for Libbey-Owens. Attached to the end of the arm on the fork lift was a wire basket in which plaintiff was raised to replace faulty light-bulbs in the plant. It is alleged Goldsby negligently backed the truck so that the wire basket struck an object causing plaintiff to fall, inflicting serious personal injuries.
Defendant's policy contained liability coverage under Section II (E, F & G) for the personal injuries inflicted upon plaintiff unless specifically excluded. Under 'Special Exclusions' the policy provides:
'Section II of this Policy Does Not Apply:
'(a) (1) to any business pursuits of an Insured, except, under Coverages E and F, activities therein which are ordinarily incident to non-business pursuits, (2) * * *.'
Under 'Definitions' the policy provides: 'Business: Includes trade, profession or occupation'.
The only question relates to the proper interpretation of the quoted exclusionary provision of the insurance policy, i.e., whether the provision is clear and unambiguous.
Appellant contends the exclusionary clause is not clear and any ambiguity should be resolved against the insurance company who prepared the contract. As 'business' is defined in the policy, plaintiff admits the exclusion would be clear if it had only provided: 'Section II of this policy does not apply to any business pursuit of an insured'. However, it is urged that the addition of 'Except, under Coverage E and F, activities therein which are ordinarily incident to non-business...
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...conclusion was reached, where the injury was caused by operation of a fork lift by a fellow employee. (Berry v. Aetna Casualty & Surety Co. (La.App.1969) 221 So.2d 272, 273.) These facts appear in Hardware Mutual Casualty Co. v. Mayer (1960) 11 Wis.2d 58, 104 N.W.2d 148, rehearing denied 10......
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