Bowab v. St. Paul Fire & Marine Ins. Co., 819

• Decision Date: 09 April 1963
• Docket Number: No. 819,819
• Citation: 152 So.2d 66
• Parties: Anthony J. BOWAB, Plaintiff and Appellee, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Defendant and Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 66

152 So.2d 66

Anthony J. BOWAB, Plaintiff and Appellee, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Defendant and Appellant.

No. 819.

Court of Appeal of Louisiana, Third Circuit.

April 9, 1963.

Rehearing Denied May 1, 1963.

Certiorari Refused June 14, 1963.

Davidson, Meaux, Onebane & Donohoe, by James E. Diaz, Lafayette, for defendant-appellant.

Johnson & LeBlanc, by Robert E. Johnson, Iberia, for plaintiff-appellee.

Before TATE, FRUGE and HOOD, JJ.

HOOD, Judge.

This is an action to recover medical and hospital expenses allegedly due plaintiff under the 'Medical Payments' provision of an automobile liability insurance policy, and to recover penalties and attorney's fees. The suit was instituted by Anthony J. Bowab, the named insured in that policy, against St. Paul Fire and Marine Insurance Company, the insurer. The defendant denies liability on the ground that the medical payments provision of the policy is not applicable under the facts presented here. After a trial on the merits, the district court rendered judgment in favor of plaintiff for the medical and hospital expenses which it found to be due, but it rejected plaintiff's demands for penalties and attorney's fees. Defendant appealed from that judgment, and plaintiff has answered the appeal demanding that the award be increased and that penalties and attorney's fees be allowed.

The undisputed facts are that on May 8, 1961, plaintiff backed his boat trailer, then attached to one of his insured automobiles, into a shed for the purpose of changing one of the wheels of the trailer. He then disengaged the trailer from the automobile, jacked up one side of the axle of the trailer, and proceeded to remove a wheel from the trailer. After removing the wheel, he noticed that some bolts were missing from it, so he laid the wheel, with the inflated tire still on it, on a table in the shed in order that he could replace the missing bolts. Immediately thereafter he obtained some bolts, and as he was attempting to put one of these bolts on the wheel the tire exploded, causing the tire and a part of the wheel to strike plaintiff's left forearm and hand. Plaintiff sustained serious injuries to the arm and hand as a result of that accident, and he has incurred substantial medical and hospital expenses as a result of those injuries.

Plaintiff's purpose in removing the wheel from the trailer was to replace it with a new wheel and tire which he had purchased, and he intended to use the wheel which had been removed as a 'spare' or an 'extra.' After the accident occurred, the wheel (including the same tire) which had caused the injury was repaired, and since that time plaintiff has kept it in his garage, except that he carries it in the trunk of his car when he uses the trailer so it will be available for use as a spare if needed. Plaintiff testified that since the accident the old wheel and tire have been used exactly as he intended for them to be used when he removed them from the trailer.

At the time the accident occurred, there was in effect a family automobile insurance policy issued by defendant to plaintiff, covering two automobiles owned by plaintiff, with identical coverage for each such vehicle. One of the coverages provided by the policy is 'Medical Payments, $1,000 each person.' With reference to this coverage, the policy obligates the defendant insurer to pay medical and hospital bills:

'To or for the named insured and each relative who sustains bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury,' caused by accident, while occupying or through being struck by an automobile;' (Emphasis added).

The policy also provides in connection with the medical payments coverage that "an automobile' includes a trailer of any type.' There is no question, therefore, but that plaintiff would be entitled to recover medical and hospital expenses under the medical payment provision of the policy if he, in fact, was struck by the trailer.

The principal issue presented here is whether, under the facts and circumstances presented in this case, plaintiff was struck by the trailer, within the meaning and intent of the medical payments provision of the policy. Plaintiff contends that he was, while defendant contends that he was not. Since the facts are not disputed, this issue must be resolved by an interpretation of the insurance contract.

The LSA-Civil Code sets out the following pertinent rules which are to be applied in interpreting agreements:

'Art. 1945. Legal agreements having the effects of law upon the parties, none but the parties can abrogate or modify them. Upon this principle are established the following rules:

'Second--That courts are bound to give legal effect to all such contracts according to the true intent of all the parties;

'Third--That the intent is to be determined by the words of the contract, when these are clear and explicit and lead to no absurd consequences;

'Fourth--That it is the common intent of the parties--that is, the intention of all--that is to be sought for; if there was a difference in this intent, there was no common consent and, consequently, no contract.

'Art. 1946. The words of a contract are to be understood, like those of a law, in the common and usual signification, without attending so much to grammatical rules, as to general and popular use.

'Art. 1950. When there is anything doubtful in agreements, we must endeavor to ascertain what was the common intention of the parties, rather than to adhere to the literal sense of the terms.'

In the absence of a statute to the contrary, insurance companies have the same right as individuals to limit their liability and to impose whatever conditions they please upon their obligations, so long as they are not inconsistent with public policy. Although it is a rule of law that any doubts concerning the meaning of an ambiguous provision in an insurance contract should be resolved against the insurer and in favor of the insured, courts have no right or authority to write or to make a new contract of insurance for the parties, and if the language of a policy is clear and unambiguous, the agreement must be enforced as written. Rogillio v. Cazedessus, 241 La. 186, 127 So.2d 734; Green v. National Bellas Hess Life Insurance Company La.App. 3 Cir., 124 So.2d 397, and cases cited therein.

The only Louisiana cases which we have been able to find involving an issue similar to the one persented here are Brown v. Life & Casualty Ins. Co. of Tennessee, La.App. 2 Cir., 146 So. 332, and Patin v. Life & Casualty Ins. Co. of Tennessee, La.App. 1 Cir., 45 So.2d 218. In the Brown case plaintiff, while standing on a street corner, was injured when he was struck by a wire which was attached to some pipe being transported by a passing truck. He sought to recover under an Industrial Travel and Pedestrian Policy which provided for the payment of benefits only, 'If insured shall be struck by actually coming in physical contact with a vehicle itself.' The court held that plaintiff was not entitled to recover because the wire was not an accessory to or part of the truck. In so holding, the court said:

'Though the parties are not supposed to intend a contract of insurance so limited in scope as to be valueless, shuch a situation does not confront us here. The usual injury from an automobile results from being struck and run down by the vehicle itself. This is insured against. All that is excluded is the freak or unforeseen accident such as that occurring in the present case. This is not unreasonable, considering the premium paid and the other natural contingencies covered by the policy.

'The canon of construction that where the terms of an insurance policy are of doubtful meaning, construction favorable to the insured will be adopted, furnishes no warrant for avoiding hard consequences by importing into contracts an ambiguity which otherwise would not exist, or, under the guise of construction, forcing from plain words unusual and unnatural meanings.' (Emphasis added)

In the Patin case, supra, the widow of the decedent sought to recover under a policy containing a provision similar to that involved in the Brown case. Plaintiff's husband was working in a ditch and he was killed when a heavy truck drove close to the edge of the ditch causing it to 'cave in on him.' The court held that plaintiff was not entitled to recover because the policy was not 'broad enough to include a mere vibration which would then cause the caving in of a ditch.'

A review of decisions of courts of other states reveals that recovery has been allowed in some instances, and has been denied in others, where the issues have been similar in some ways to those presented here. In Maness v. Life & Casualty Ins. Co. of Tennessee, 161 Tenn. 41, 28 S.W.2d 339, for instance, the Supreme Court of Tennessee allowed recovery for an eye injury sustained by the insured when he was struck by a stone thrown from the road by a moving automobile. The policy provided for the payment of benefits if the insured should be 'struck by a vehicle.' The court, in allowing recovery, reasoned that 'a blow from the automobile was the efficient and proximate cause of his injury,' and that 'the agency which inflicted the blow was a Moving vehicle upon a public highway, against blows from which he had contracted for indemnity.'

In Gilbert v. Life & Casualty Co. of Tennessee, 185 Ark. 256, 46 S.W.2d 807, recovery was allowed by the Supreme Court of Arkansas when the insured was struck and killed by a cable, which was attached to a tractor and which had slipped off a stump as the tractor endeavored to pull the stump out of the ground. The court held that being struck by the cable attached to the tractor was equivalent to being struck by the tractor.

The Supreme Court of Mississippi, in State Farm Mutual Automobile Insurance Company v. Johnson, 242 Miss. 38, 133 So.2d 288, held that the decedent had been ...