Brown v. Green

• Court: Kansas Supreme Court
• Writing for the Court: PRICE
• Citation: Brown v. Green, 466 P.2d 299, 204 Kan. 802 (Kan. 1970)
• Decision Date: 07 March 1970
• Docket Number: No. 45670,45670
• Parties: Loye O. BROWN, Appellee, v. J. W. GREEN, John R. Davis, d/b/a Bob Davis Trucking Co., Appellees, and National Indemnity Company of Omaha, Nebraska, Appellant.

Page 299

466 P.2d 299

204 Kan. 802

Loye O. BROWN, Appellee, v. J. W. GREEN, John R. Davis, d/b/a Bob Davis Trucking Co., Appellees and National Indemnity Company of Omaha, Nebraska, Appellant.

No. 45670.

Supreme Court of Kansas.

March 7, 1970.

Syllabus by the Court

1. The purpose of the liability insurance required by K.S.A. 66-1,128 is adequate protection to members of the public for injuries resulting from the negligent operation of a vehicle of a licensed motor carrier.

2. An employee of a licensed motor carrier who is injured in the course of his employment is not a member of the 'public' within the meaning and intent of K.S.A. 66-1,128.

3. The duty of an insurer to defend an action for damages against its insured is not measured by proof which may be adduced at the trial or by the outcome of the litigation, but is to be determined by the allegations of the petition in the action and by the terms and provisions of the policy, and, where an insurer would have no liability in event a judgment is rendered against its insured, it is not obligated to defend the action. In other words, where there is no liability-there is no duty to defend.

4. An employee of a licensed motor carrier was injured in the course of his employment as the result of the alleged negligent operation of a vehicle of the carrier by a fellow employee who at the time also was in the course of his employment. The injured employee brought suit against his fellow employee, his employer, and the insurer under a public liability policy covering the employer. On pleadings raising the issue, the trial court held that the insurer was obligated to defend the action and was obligated to pay and judgment that may be rendered in the case. Upon appeal by the insurer from that ruling the record is examined and, for reasons set forth in the opinion it is held that the ruling was erroneous.

Gene H. Sharp, of Vance, Hobble, Neubauer, Nordling & Sharp, Liberal, for appellant.

Don C. Smith, of Mitchell, Smith & Patton, Dodge City, argued the cause and Harold K. Greenleaf, Jr., of Smith & Greenleaf, Liberal, with him on the brief for appellee Loye O. Brown.

James R. Yoxall, of Light, Yoxall & Antrim, Liberal, for appellees J. W. Green and John R. Davis.

PRICE, Chief Justice:

This is an action by an employee of a licensed motor carrier to recover for personal injuries sustained while in the course of his employment as the result of the alleged negligent operation of a truck by a fellow employee who at the time also was acting within the scope of his employment.

Named as defendants are the fellow employee, the employer, and the employer's insurer under a public liability insurance policy.

The question is whether defendant insurance company is obligated to defend the action and is obligated to pay any judgment that might be rendered in the case.

The trial court held that both obligations exist. The insurance company has appealed.

Because of the posture of the case and the nature of the question involved, it is necessary to summarize the pleadings in some detail.

The petition of plaintiff, Loye O. Brown, was filed on May 2, 1967. It alleged--

Plaintiff was an employee of defendant John R. Davis, d/b/a Bob Davis Trucking Co. (hereafter referred to as Davis) which hauled cattle into and out of Kansas. Pursuant to K.S.A. 66-1314 Davis was required to be covered by a liability insurance policy, and, on the date in question, was covered by a policy written by defendant National Indemnity Company (hereafter referred to as National) whereby National agreed to pay for injuries to persons and loss of or damage to property resulting from the negligence of Davis, his agents, servants and employees in operating vehicles under the name of Davis and in the furtherance of his business. On or about February 4, 1966, in a cattle auction yard at Liberal, plaintiff, an employee of Davis, was injured when defendant J. W. Green (hereafter referred to as Green), who at the time also was an employee of Davis and acting within the scope of his employment, negligently backed a cattle truck owned by Davis into plaintiff. That as the direct result of the negligence of Green, while in the employment of Davis, plaintiff was injured and damaged in the amount of $36,764.34 and judgment in that amount was sought against defendants Green, Davis and National.

On June 8, 1967, defendant National filed its answer and cross-claim.

The answer admitted the issuance to Davis of the policy in question (attached as an exhibit), and that on February 4, 1966, plaintiff, while an employee of Davis, sustained personal injuries; alleged contributory negligence; denied that plaintiff's injuries were caused by the negligence of Green or Davis, and alleged there was no liability on its part to plaintiff for injuries sustained by him while employed by Davis.

In its cross-claim National alleged that defendants Green and Davis contend that by virtue of the policy in question it is required to defend plaintiff Brown's action against them and to pay any judgment that may be rendered against them. National further alleged that plaintiff was correct in alleging that at the time of the injury he, plaintiff, was an employee of Davis. It was further alleged that the policy did not insure Green or Davis for the reason coverage is excluded where the injured party (plaintiff) was at the time of injury an employee of the named insured, Davis, and that it, National, was entitled to a declaratory judgment that it was under no duty or obligation to furnish a defense for Green or Davis to plaintiff's law suit and was under no obligation to pay any judgment rendered against them arising from the case. (The provisions of the policy attached as an exhibit to National's answer and cross-claim will be discussed later.)

On June 23, 1967, defendant Davis filed his answer, an answer to the cross-claim of National, and a cross-claim against National.

The answer contained the usual denials, admitted that he, Davis operated a trucking firm which transported cattle in and out of the state, admitted the issuance and existence of the insurance policy in question, and alleged contributory negligence on the part of plaintiff.

The answer of Davis to the cross-claim of National admitted that he contends National is required to furnish a defense to plaintiff's action and to pay any judgment which might be rendered against him, Davis, and prayed that National be required to furnish such defense and to pay any such judgment.

The cross-claim of Davis against National alleged that by the issuance of the policy in question National agreed to pay for injuries to persons and loss of or damage to property as the result of the negligence of Davis, his agents and employees, and to defend any suit against him for such injury or damage even if such suit is groundless, false or fraudulent. It further alleged that following the filing of plaintiff's action he, Davis, requested that National assume its obligation to defend the action, that National failed and refused to do so with the result that he was forced to hire counsel of his own. The prayer was for judgment declaring the policy to be in full force and effect; that the damages claimed by plaintiff are within the terms and provisions of the policy; that National is obligated to defend the action and to pay any judgment rendered, and for judgment for attorney fees and expenses.

On June 23, 1967, defendant Green filed his answer, an answer to the cross-claim of National, and a cross-claim against National. For our purposes it may be said these three pleadings were substantially identical to the respective pleadings filed by Davis.

There being no factual issue between National and defendants Green and Davis, National moved for a summary--judgment upon its cross-claim for a declaratory judgment mentioned above.

The matter came on for hearing on January 3, 1969, and the court ruled--

'Upon examination of the files, briefs of counsel, and statements of counsel, the Court finds that the National Indemnity Company is not entitled to such Declaratory Judgment, and that under the terms and provisions of the policy of insurance, it does owe a duty to furnish a defense for the said J. W. Green and John R. Davis d/b/a Bob Davis Trucking Co., to the Plaintiff's lawsuit, and has an obligation to pay any...