Bituminous Cas. Corp. v. Aetna Life and Cas. Co., 41879

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: GUNN
• Citation: 599 S.W.2d 516
• Parties: BITUMINOUS CASUALTY CORPORATION, Appellant, v. AETNA LIFE AND CASUALTY COMPANY, Respondent.
• Docket Number: No. 41879,41879
• Decision Date: 06 May 1980

Page 516

599 S.W.2d 516 BITUMINOUS CASUALTY CORPORATION, Appellant,
v.
AETNA LIFE AND CASUALTY COMPANY, Respondent. No. 41879. Missouri Court of Appeals, Eastern District, Division Two. May 6, 1980.

Page 517

Gray & Ritter, Robert F. Ritter, Thomas C. De Voto, St. Louis, for appellant.

Joseph H. Mueller, J. C. Jaeckel, Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, St. Louis, for respondent.

GUNN, Presiding Judge.

This case presents a dispute between two insurance companies as to which should bear the loss of personal injury arising from an accident involving their respective insureds. Plaintiff-appellant Bituminous Casualty Corporation (Bituminous) settled the personal injury claim of an injured party after defendant-respondent Aetna Life and Casualty Corporation (Aetna) refused to defend a suit brought upon the claim. Bituminous then brought this action against Aetna for indemnification contending that Aetna's policy covered the loss. From an adverse decision of the trial court finding no policy coverage, Bituminous appeals. For the reasons which follow, we reverse and remand.

The facts are essentially undisputed but a bit complicated. Bituminous' insured, Metro Disposal Systems, owned a landfill site on which it maintained a bulldozer. The bulldozer was operated by Metro's employee, Lilburn Kitcherside. The injured party, Andrew Yates, was employed by Aetna's insured, ABC Roofing Company. A truck owned by ABC Roofing and attended by Yates became enmired while attempting to disgorge a load of refuse at Metro Disposal's landfill. Kitcherside was asked to assist in extricating the vehicle by pushing it with the bulldozer. In the pushing process the record is not clear whether the bulldozer was disengaged from the truck Yates was struck by the bulldozer blade and injured. Bituminous settled Yates' claim under its policy covering Metro Disposal Systems following Aetna's refusal to defend Yates' personal injury action. This proceeding followed.

Bituminous' theory of recovery is that Kitcherside Metro's bulldozer operator became an insured under Aetna's policy covering ABC Roofing when he "used" ABC's truck by pushing it. Thus so theorizes Bituminous Aetna shared in the liability for Yates' injury.

Page 518

The omnibus clause of Aetna's policy covered ABC Roofing for liability occasioned by "any person while using the (insured) automobile and any person or organization legally responsible for the use thereof, provided the actual use is by the named insured or . . . spouse or with the permission of either."

The second provision of the policy involved here is the employee exclusion clause which purports to exclude coverage for any "bodily injury to or sickness, disease or death of any employee of the insured" arising in the course of the employee's employment by the name insured.

The third and most critical provision of the policy is the "severability clause":

The term "the insured" is used severally and not collectively, that the inclusion herein of more than one insured shall not operate to increase the limits of the company's liability.

The threshold question is whether Kitcherside, in assisting the ABC Roofing truck, became an omnibus insured under ABC's policy in the first instance. If his assistance in pushing the truck constitutes "use" of the truck with ABC's permission, Kitcherside would fall within its terms.

In our review, we first encounter the basic precept that omnibus provisions are to be read and construed to broaden policy coverage. Weathers v. Royal Indemnity Co., 577 S.W.2d 623 (Mo. banc 1979); Truck Ins. Exchange v. Hunt, 590 S.W.2d 425 (Mo.App.1979). Particularly apt, is the following language in Cameron Mutual Ins. Co. v. Ward, 599 S.W.2d 13, 15 (Mo.App.1980), citing and quoting from Schmidt v. Utilities Ins. Co., 353 Mo. 213, 218-19, 182 S.W.2d 181, 183-84 (1944):

Schmidt, premised upon the basic rule that insuring agreements which are susceptible of various interpretations are to be liberally construed in favor of the insured, holds that the "words 'arising out of * * * use' are very broad, general and comprehensive terms . . . (and the) words 'arising out of' . . . are ordinarily understood to mean 'originating from' or 'having its origin in,' 'growing out of' or 'flowing from'. . . ."

Missouri courts recognize that the term "use" in an omnibus clause imports more than the actual driving of or riding in a vehicle. See, e. g.: Allstate Insurance Co. v. Hartford Accident & Indemnity Co., 486 S.W.2d 38, 43 and ff. (Mo.App.1972).

(M)any decisions have in effect recognized use as going beyond the narrow meaning of the direct mechanical operation performed by the driver and as encompassing the broader concept of employing or putting the vehicle into one's service by an act which assumes at any time with the consent of the owner or his agent the supervisory control or guidance of its movements.

Waltz v. Cameron Mutual Ins. Co., 526 S.W.2d 340, 344 (Mo.App.1975), quoting from Woodrich Construction Co. v. Indemnity Ins. Co., 252 Minn. 86, 89 N.W.2d 412, 418 (1958).

Extricating the immobilized truck by impelling it forward with the bulldozer is such an act as "assumes . . . supervisory control or guidance of its movements" and constitutes "use" of the truck within the intendment of the omnibus provision. This conclusion is supported by the reasoning of other courts that have had occasion to consider similar issues. See, e. g. : Wiebel v. American Farmers Mutual Insurance Co., 1 Storey 151, 51 Del. 151, 140 A.2d 712 (Del.Super.1958); Union Mutual Fire Insurance Co. v. King, 113 N.H. 39, 300 A.2d 335 (1973); Dairyland Insurance Co. v. Drum, 568 P.2d 459 (Colo. banc 1977).

Aetna seeks to distinguish the present case from the above...