Blanchard v. Hanover Ins. Co.

• Decision Date: 30 June 1971
• Docket Number: No. 8458,8458
• Citation: 250 So.2d 484
• Parties: Robert J. BLANCHARD v. The HANOVER INSURANCE COMPANY.
• Court: Court of Appeal of Louisiana — District of US

Page 484

250 So.2d 484

Robert J. BLANCHARD v. The HANOVER INSURANCE COMPANY.

No. 8458.

Court of Appeal of Louisiana, First Circuit.

June 30, 1971.

Lawrence F. Babst, Jr., New Orleans, for appellant.

Gerald F. Lofaso and Philip J. McMahon, of Borowski, Lofaso, McMahon & McCollam, Houma, for appellee.

Before LANDRY, ELLIS and BLANCHE, JJ.

LANDRY, Judge.

This appeal by defendant, Hanover, is from the judgment of the trial court which awarded payments to appellant's insured, Blanchard, pursuant to the medical benefits clause in an automobile liability policy which states that the insured is entitled to such benefits if he sustained injury 'through being struck by an automobile or by a trailer of any type.' The trial court held that the quoted policy provision applies to an accident in which the insured sustained injuries while riding in a truck which was struck by another vehicle even though no part of Blanchard's person came into contact with the offending vehicle. Plaintiff has answered the appeal praying for penalties and attorney's fees denied by the trial court on the ground that defendant's refusal to pay was not arbitrary, capricious or without probable cause. We affirm the judgment rendered below.

There is no dispute as to the facts upon which this res nova question must be decided. Plaintiff, a clerical employee of Continental-Emsco, was injured on June 28, 1966, while driving a pickup truck owned by his employer. The truck was involved in a collision with a vehicle driven by George Davis. At six to eight week intervals, plaintiff was required to be on duty 'subject to call at night' for a period of one week for the purpose of making emergency deliveries. Plaintiff was not assigned any particular vehicle for this emergency duty. It was the employer's practice to leave vehicles at its place of business for the use of its employees on such occasions. The employee could select any available vehicle, but could not take it home without permission. Keys for the vehicles were left in the employer's office, and secured by the on duty employees when necessary. On this particular occasion, two pickup trucks were available. Plaintiff selected one of them. The accident in question occurred while plaintiff was making a delivery for his employer. In the course of the accident, plaintiff's person did not come into physical contact with Davis' vehicle.

Part II of subject policy obligates Hanover to pay its insured certain medical expenses if the insured sustained injuries:

'(a) while occupying the owned automobile;

(b) while occupying a non-owned automobile * * *, or

(c) through being struck by an automobile or by a trailer of any type.'

Also pertinent is the policy provision which defines a non-owned automobile as one 'not owned by or furnished for the regular use of either the named insured * * *.' Plaintiff Blanchard is the named insured in subject policy. The trial court held that plaintiff was not entitled to recovery under sub-paragraph (b), which provides for payment for injuries sustained while occupying a non-owned vehicle, because the vehicle in question was excluded as a non-owned vehicle inasmuch as it was furnished by plaintiff's employer for plaintiff's regular use. Appellee complains of this ruling also.

In the interpretation of insurance contracts, any ambiguity is construed against the insurer who prepared the policy. Zurich Insurance Company v. Bouler, La.App., 198 So.2d 129.

The terms 'furnished for' and 'regular use', as used in an insurance policy of this nature, have been held to be unambiguous. Brouillette v. Fireman's Fund Insurance Company, La.App., 163 So.2d 389. Brouillette, above, involved a fireman who was injured while riding on a fire engine going to a fire. He sued for medical payments pursuant to the provisions in a policy issued by defendant on Brouillette's personally owned vehicle. The policy provided payments for injuries received 'while occupying or otherwise being struck by an automobile', but excluded vehicles '* * * furnished for the regular use * * * of the named insured * * *.' The court in Brouillette, above, noted that the terms involved are not ambiguous although there can be no hard and fast rule as to their application because each case must be determined in the light of its own peculiar facts and circumstances. Also, the court in Brouillette, above, cited with approval language from Moore v. State Farm Mutual Automobile Ins. Co., 239 Miss. 130, 121 So.2d 125, to the effect that the phrase 'furnished for the regular use' was intended to restrict medical payments coverage where a non-owned vehicle is involved, to the casual or infrequent use of automobiles other than the insured's owned vehicle. In Brouillette, the court rejected the insured's contention that the irregular and sporadic use of the fire engine exempted it from the term 'furnished for his regular use.' Brouillette also noted that the clause in question does not exclude only vehicles 'regularly used', but also vehicles 'furnished' for regular use.

We find, as did the trial court, that the vehicle occupied by plaintiff at the time of the accident was one furnished for his regular use. Plaintiff was required to stand emergency duty at regular intervals. While subject to such calls his employer furnished vehicles for his use. That plaintiff had a choice of two vehicles is a matter of no moment. In Dickerson v. Millers Mutual Fire Ins. Co. of Texas, La.App., 139 So.2d 785, where plaintiff had a choice of several vehicles furnished for his use, recovery was denied under a similar policy provision when it was found that the vehicles were regularly available for plaintiff's use. In the case at hand, the employer continuously, at regular and predictably certain intervals, furnished vehicles for plaintiff's use. The accident in question occurred while plaintiff was using a furnished vehicle during one of such episodes. Since the use in this case constantly recurred at fixed intervals, we hold that it is of the type of use intended to be excluded.

We can find no interpretation of the phrase 'struck by an automobile' in our own jurisprudence. Counsel for the contending parties have cited authorities from other jurisdictions which hold, on one hand, that the term requires actual physical contact between the person of the insured and the offending vehicle, and which also hold on the other hand, that physical contact is not required. The decided majority rule is that the applicable phrase does not require actual physical contact.

Appellant, relying upon Bowab v. St. Paul Fire & Marine Insurance Co., La.App., 152 So.2d 66; Metropolitan Casualty Ins. Co. v. Curry, 156 Fla. 502, 24 So.2d 316 (1945), and Johnston v. Maryland Casualty Co., 22 Wash.2d 305, 155 P.2d 806 (1945), contends that 'struck by an automobile' means actual contact between the injured party and the offending vehicle. In Curry, above, the court held that the term 'struck by an automobile which is in motion under its usual motive power * * *' is not ambiguous. Curry, above, also noted that whereas the force of a collision which caused a second vehicle to strike an individual was unquestionably the proximate cause of resulting injury, nevertheless, the terms of the policy there involved were silent as to proximate cause, and in plain language insured only the contingency of being struck by an automobile in motion under its usual motive power.

In Johnston v. Maryland Casualty, above, plaintiff's truck was struck by another automobile. Plaintiff's policy provided coverage 'by being struck or run over by an automobile.' Plaintiff contended that since he was struck by his own car, he should recover. The court held that the term 'struck by an automobile', as used in plaintiff's policy, meant an automobile other than the one in which plaintiff was riding. The court also held that since plaintiff was still in his own vehicle after the accident, and was not struck by the other car, plaintiff could not recover.

Bowab, above, from one of our own courts, is not factually apposite. In that instance, plaintiff sought medical payments under the provisions of his own policy for injuries sustained by the explosion of a tire which plaintiff had removed from a trailer. In denying recovery pursuant to a policy providing benefits in the event the insured was 'struck by an automobile', our brothers of the Third Circuit reasoned that the term must be construed in its usual significance and meaning as required by LSA-C.C. article 1946. The court then held that the term intended that coverage be afforded against injuries resulting from 'being struck, run into or run down by the vehicle * * *' and not from such a usual accident as that which occurred.

Appellant argues that it intended to pay benefits to its insured, as the occupant of a vehicle, only when the insured was an occupant of an owned or non-owned vehicle, as described in the policy, and not while the insured was occupying any other vehicle. Appellant then contends that to construe the policy as the trial court interpreted it, in effect, adds the phrase '* * * and also while an occupant of any other automobile', thus completely negating sub-paragraphs (a) and (b) and rendering them totally unnecessary. This, according to appellant, writes an entirely new and different contract.

The same argument made by appellant herein was rejected in Bates v . United Security Insurance Company, 163 N.W.2d 390, 33 A.L.R.3d 950, in which the Supreme Court of Iowa noted:

'In support of this contention defendant argues if we construe subparagraph (c) as being intended to extend coverage to an insured driving an automobile other than an 'owned' or 'non-owned' vehicle, we are in effect penalizing the insurance company for seeking to grant coverage and benefits to plaintiff when he was outside an automobile and struck by another automobile, which is the clear intent of subparagraph (c) when the entire policy is...