BUCKEYE UNION CASUALTY COMPANY v. Bell, 12063.

• Decision Date: 26 November 1957
• Docket Number: No. 12063.,12063.
• Citation: 249 F.2d 211
• Parties: The BUCKEYE UNION CASUALTY COMPANY, Plaintiff-Appellee, v. Robert E. BELL et al., Defendants (Robert E. Bell, Appellant).
• Court: U.S. Court of Appeals — Seventh Circuit

249 F.2d 211 (1957)

The BUCKEYE UNION CASUALTY COMPANY, Plaintiff-Appellee, v. Robert E. BELL et al., Defendants (Robert E. Bell, Appellant).

No. 12063.

United States Court of Appeals Seventh Circuit.

October 31, 1957.

Rehearing Denied November 26, 1957.

David E. Rosenfeld, Robert G. Wolfe, Rosenfeld, Wolfe & Allen, Terre Haute, Ind., for defendant-appellant.

Benjamin G. Cox, Gambill, Dudley, Cox, Phillips & Gambill, Terre Haute, Ind., for plaintiff-appellee.

Before DUFFY, Chief Judge, and SCHNACKENBERG and HASTINGS, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

Robert E. Bell, defendant, has appealed from orders of the district court denying certain defendants' motion for summary judgment and granting plaintiff's motion for summary judgment, and from its judgment adjudicating that plaintiff has no obligation to defendant Robert E. Bell (hereinafter referred to as "defendant"), the named insured in an automobile liability policy issued by plaintiff, in respect to an automobile accident occurring in Pennsylvania while said policy was in effect.

Plaintiff's action sought a declaratory judgment that it is not required by said policy to defend Robert E. Bell or anybody else in another action pending in the court below or to pay any judgment that might be recovered in that action. The other pending action (referred to herein as the "Weigle case") is Virginia J. Weigle, administratrix, et al., v. Ralph E. Brill, administrator of the estate of Joseph Bell, deceased, et al. In the case before us plaintiff sued the persons who are plaintiffs in the Weigle case,¹ said defendant Robert E. Bell and Ralph E. Brill, administrator of the estate of Joseph Bell, deceased.²

It is admitted that no material fact issues exist in this case. The undisputed relevant facts we now state.

The Weigle case plaintiffs charged Joseph Bell with negligence in the operation of a certain motor vehicle which was involved in a collision on April 17, 1955. That vehicle was not owned by defendant or by Joseph Bell, now deceased, or described in said policy. The Weigle case raises issues concerning the liability, if any, of defendant to the plaintiffs in that case. The Weigle complaint alleged, inter alia:

"Prior to the time of the collision complained of herein the defendant Robert E. Bell signed Joseph Bell\'s application for an Indiana Motor Vehicle Operator\'s License, and in so doing the defendant Robert E. Bell made a written undertaking as a part of said application wherein the defendant Robert E. Bell agreed to be responsible, jointly and severally with the said Joseph Bell, for any injury or damage which said Joseph Bell might cause by reason of Joseph Bell\'s operation of a motor vehicle in all cases where Joseph Bell is liable in damages."³

The policy provides bodily injury and property damage liability and comprehensive coverage for a certain described Pontiac automobile. Item 5 of the "Declarations" in the policy describes the purpose for which the Pontiac is to be used as "business and pleasure."

The policy recites that plaintiff agrees with defendant, in part:

"I. Coverage A — Bodily Injury Liability — To Pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile.

* * * * *

"II. Defense * * * As respects the insurance afforded by the other terms of this policy under coverages A and B the company shall: (a) defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof * * *

* * * * *

"IV. Automobile Defined * * (a) Automobile. Except where stated to the contrary, the word `automobile\' means: (1) Described Automobile — the motor vehicle or trailer described in this policy. * * *

* * * * *

"V. Use of Other Automobiles. If the named insured is an individual who owns the automobile classified as `pleasure and business\' or husband and wife either or both of whom own said automobile, such insurance as is afforded by this policy for bodily injury liability, for property damage liability and for medical payments with respect to said automobile applies with respect to any other automobile, subject to the following provisions:

"(a) With respect to the insurance for bodily injury liability and for property damage liability the unqualified word `insured\' includes (1) such named insured, (2) the spouse of such individual if a resident of the same household and (3) any other person or organization legally responsible for the use by such named insured or spouse of an automobile not owned or hired by such other person or organization. Insuring Agreement III. Definition of Insured, does not apply to this insurance.

"(b) This insuring agreement does not apply:

"(1) to any automobile owned by, hired as part of a frequent use of hired automobiles by, or furnished for regular use to, the named insured or a member of his household other than a private chauffer or domestic servant of the named insured or spouse;

"(2) to any automobile while used in the business or occupation of the named insured or spouse except a private passenger automobile operated or occupied by such named insured, spouse, chauffeur or servant;

"(3) to any accident arising out of the operation of an automobile repair shop, public garage, sales agency, service station or public parking place;

"(4) under coverage C, unless the injury results from the operation of such other automobile by such named insured or spouse or on behalf of either by such chauffer or servant, or from the occupancy of said automobile by such named insured or spouse."

In a part of the policy entitled "Exclusions", it is provided, in part:

"This Policy Does Not Apply: * * *

"(b) under coverages A, B, and C, to liability assumed by the insured under any contract or agreement, * * *."

In that part of the policy entitled "Conditions", it is provided, in part:

"16. Assistance and Cooperation of the Insured * * * The insured shall not, except at his own cost, voluntarily make any payment, assume any obligation or incur any expense other than for such immediate medical and surgical relief to others as shall be imperative at the time of the accident. * * *"

Also:

"23. Terms of Policy Conformed to Statute. Terms of this policy which are in conflict with the statutes of the State wherein this policy is issued are hereby amended to conform to such statutes."

Count II of plaintiff's complaint averred the following (summarized) facts, which are admitted by defendants' answer:

"(

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