Central Sec. Mut. Ins. Co. v. DePinto, 55290

• Decision Date: 27 April 1984
• Docket Number: No. 55290,55290
• Citation: 681 P.2d 15,235 Kan. 331
• Parties: CENTRAL SECURITY MUTUAL INSURANCE COMPANY, Appellant, v. Victoria DePINTO and Cindy Dirksen, Appellees, and Hesston College, Intervenor/Appellee.
• Court: Kansas Supreme Court

Page 15

681 P.2d 15

235 Kan. 331

CENTRAL SECURITY MUTUAL INSURANCE COMPANY, Appellant, v. Victoria DePINTO and Cindy Dirksen, Appellees and Hesston College, Intervenor/Appellee.

No. 55290.

Supreme Court of Kansas.

April 27, 1984.

Syllabus by the Court

1. An insurance policy is a contract. The plain and unambiguous language contained within the contract must be given its plain meaning.

2. Where an insurance contract is open to different constructions, that most favorable to the insured must be adopted, but this rule does not authorize a perversion of the language, or the exercise of inventive powers for the purpose of creating an ambiguity where none exists.

3. Coverage clauses of automobile liability policies are to be broadly interpreted to afford the greatest possible protection to the insured, while exclusionary clauses are interpreted narrowly.

4. The question of whether the particular use of a nonowned automobile is a "regular use" is a question of fact.

5. "Regular" use is defined as continuous use; uninterrupted normal use for all purposes; without limitation as to use; and customary use as opposed to occasional use or special use.

Steven J. Roth, of Hershberger, Patterson, Jones & Roth, of Wichita, argued the cause and H.E. Jones, Wichita, of the same firm, was with him on the briefs for appellant.

Thomas E. Hammond, of Render & Kamas, Wichita, argued the cause, and Roger M. Theis, Wichita, of the same firm, was with him on the brief for appellee Cindy Dirksen.

David C. Burns, of Speir, Stroberg & Sizemore, Newton, argued the cause, and Robert D. Myers, Newton, of the same firm, was with him on the briefs for intervenor/appellee Hesston College.

LOCKETT, Justice:

This is a declaratory judgment action. Central Security Mutual Insurance Company appeals from the district court's determination that exclusionary language contained within its automobile liability policy was not applicable to an automobile accident in which Victoria DePinto was driving a van belonging to Hesston College. The Court of Appeals affirmed the trial court; the case is before this court on a Petition for Review.

In March, 1980, Victoria DePinto (DePinto) was a nursing student at Hesston College. As part of her nurses training, DePinto was required to participate with other students in clinical programs at hospitals in the towns around Hesston. Hesston College provided vans to transport its nursing students to the hospitals. Different students volunteered to serve as drivers each semester. DePinto volunteered to drive for the semester beginning in February, 1980. She was required to drive to and from a Newton hospital on Tuesday evenings and again on Wednesday mornings.

DePinto did not drive the same van each time nor did she have her own keys to any van. She obtained a key each Tuesday afternoon from the nursing department office or some other campus location, obtained the assigned van at a campus parking lot, and then picked up the other students at the designated location near the campus cafeteria. Upon returning to the college following the Tuesday evening session, DePinto was required to park the van on campus. DePinto kept the keys overnight since she was to drive the assigned vehicle again early Wednesday morning and the campus offices were not yet open when the students departed. When the van was parked on Tuesday evening, she was not permitted to drive it again until Wednesday morning. DePinto was required to drive the most direct route to and from the hospital and she was not permitted to use the van for personal errands while in Newton. After returning to the campus on Wednesday afternoon, DePinto was required to park the vehicle and to return the van keys to the office from which she had obtained them. DePinto did not have permission to use the van at any other time or for any other purpose.

At approximately 6:30 a.m. on March 12, 1980, while enroute to the hospital, DePinto was involved in an automobile accident in Newton. The Hesston College van which she was driving collided with a pickup truck in which Richard Dirksen was a passenger. Dirksen was killed. Dirksen's wife, Cindy Dirksen, subsequently filed an action for damages against DePinto and others in the United States District Court for the District of Kansas.

At the time of the accident, an automobile liability policy was in effect between Central Security Mutual Insurance Company and Thomas DePinto, father of Victoria DePinto. Since Victoria was a resident of her father's household and did not own a car at the time of the accident, she was afforded coverage under her father's policy. The policy contained the following provision concerning the use of cars other than those owned by the insured party:

"We insure other Cars You use with the permission of the owner. This doesn't include Cars owned by, or furnished for the regular use of, You or resident members of Your family."

Plaintiff claims that its policy excluded coverage for defendant, Victoria DePinto, in this accident on the basis that the van involved in the accident was "furnished for the regular use" of DePinto. Hesston College was permitted to intervene in the action. The trial court ruled that the exclusionary language contained in the policy was ambiguous and was to be construed in favor of the insured. The trial court concluded that the exclusionary provision was inapplicable and that the policy did provide coverage for the accident. Plaintiff appeals from that decision.

The purpose of an exclusionary clause within an automobile liability policy, that its coverage shall not extend to an automobile owned by or furnished for the regular use of the named insured or a member of the insured household, is to protect the insurer against the loss of premiums. It also protects the insurer against the uncompensated exposure which results from the insured's use of other automobiles where the insured or members of the same household own two or more automobiles which are used interchangeably with the insured automobile or furnished the insured for regular use.

Was the exclusionary language of the insurance policy ambiguous, therefore subject to construction in favor of the insured? An insurance policy is a contract. The plain and unambiguous language contained within the contract must be given its plain meaning. Where an insurance contract is open to different constructions, that most favorable to the insured must be adopted, but this rule does not authorize a perversion of the language, or the exercise of inventive powers for the purpose of creating an ambiguity where none exists.

A basic principle in the construction of contracts is that an ambiguity in the language of the contract will be strictly construed against the party who drafted the provision. Foltz v. Begnoche, 222 Kan. 383, 565 P.2d 592 (1977). This rule is particularly applicable to the interpretation of contracts of insurance and requires liberal construction in favor of the insured. Brown v. Combined Ins. Co. of America, 226 Kan. 223, 597 P.2d 1080 (1979). Coverage clauses of automobile liability policies are to be broadly interpreted to afford the greatest possible protection to the insured while exclusionary clauses are interpreted narrowly. United States Fidelity & Guar. Co. v. Farm Bureau Mut. Ins. Co., 2 Kan.App.2d 580, 584 P.2d 1264 (1978). Thus, if the contract term is ambiguous, it will be construed in favor of coverage of DePinto.

An ambiguity is said to exist if "the words used to express the meaning and intention of the parties are insufficient in a sense that the contract may be understood to reach two or more possible meanings." Western Casualty & Surety Co. v. Budig, 213 Kan. 517, 519, 516 P.2d 939 (1973), 66 A.L.R.3d 442. The phrase "regular use" may seem to have several possible meanings. It could refer to the frequency of the use of the automobile, the purpose for which the use of the automobile was permitted or the degree of permission needed in order to use the automobile. Where an insurer intends to limit or restrict the coverage under its policy, it should use language which clearly reveals its stated purpose. Alliance Life Ins. Co. v. Ulysses Volunteer Fireman's Relief Assn., 215 Kan. 937, Syl. p 8, 529 P.2d 171 (1974).

It is noted in 12A Couch on Insurance 2d § 45:1076 (Rev. ed. 1981):

"The phrase 'not furnished for the regular use' of any person is to be given its plain, ordinary meaning, which is simply that the insured was not covered by the policy on the insured vehicle if he was injured in some other car which he could regularly use." p. 729.

The Court of Appeals held in Central Security Mut. Ins. Co. v. DePinto, 9 Kan.App.2d 85, 87, 673 P.2d 122 (1983):

"We agree with appellant that the phrase is not ambiguous .... The words are not unusual and their meaning is well known in common parlance. It is not a matter of ambiguity that causes courts to struggle with this phrase. Courts struggle with its application because each case must be decided upon its own facts and circumstances, and therefore, its application is a struggle. Its meaning is not."

Thus, the greatest portion of litigation on this issue is due not to an ambiguity of the term but rather the problem with applying the term to each set of facts. We agree with the Court of Appeals determination that the phrase "regular use" contained within the contract was not ambiguous.

The question of whether the particular use of a nonowned automobile is a "regular use" is a question of fact. See Brooks v. Link, 212 Kan. 690, 695, 512 P.2d 374 (1973). This case was submitted to the trial court upon documentary evidence including the deposition of defendant DePinto, and stipulated facts. Consequently, this court on review has as good an opportunity to examine and consider the evidence as did the trial court, and to redetermine what the facts establish. Stith v. Williams, 227 Kan. 32, Syl. p 2, 605 P.2d 86 (1980). The burden of proving...