Commercial Standard Ins. Co. v. Remer

• Decision Date: 29 March 1941
• Docket Number: No. 2191.,2191.
• Citation: 119 F.2d 66
• Parties: COMMERCIAL STANDARD INS. CO. v. REMER.
• Court: U.S. Court of Appeals — Tenth Circuit

119 F.2d 66 (1941)

COMMERCIAL STANDARD INS. CO. v. REMER.

No. 2191.

Circuit Court of Appeals, Tenth Circuit.

March 29, 1941.

R. D. Hudson, of Tulsa, Okl. (W. E. Hudson, of Tulsa, Okl., on the brief), for appellant.

John Barry, of Oklahoma City, Okl. (John W. Tyree, of Lawton, Okl., on the brief), for appellee.

Before PHILLIPS, MURRAH, and WILLIAMS, Circuit Judges.

PHILLIPS, Circuit Judge.

The L. E. Whitham Construction Company¹ entered into a contract with the United States Department of Agriculture to construct a road in a mountainous section of the National Forest Reserve in Oklahoma. The contract required the Construction Company to carry employer's liability insurance. It secured insurance from the state of Oklahoma covering its workmen's compensation liability which does not include liability for wrongful death. Mytinger & Randel Insurance Agency of Wichita Falls, Texas,² was authorized by the Construction Company to secure a policy insuring it against liability for death. Commercial Standard Insurance Company³ is a Texas corporation licensed to do an insurance business in Oklahoma. At the time the policy hereinafter referred to was issued, Eugene Whittington & Company⁴ of Oklahoma City, Oklahoma, was the Insurance Company's policy-writing agent empowered to countersign its policies.

On December 27, 1934, the broker wrote the agent stating the Construction Company had been awarded the road construction contract, proposed to secure a policy from the state covering its workmen's compensation liability and desired to secure a policy covering its liability for death, and requesting advice as to the rate per hundred of the payroll and the amount of the deposit premium. On January 2, 1935, the agent wrote the broker stating the "rate for street paving, classification No. 5506, is $4.32," and the "rate for other types of road construction, classification No. 5507, is $5.86." On January 28, 1935, the broker wrote the agent authorizing the latter to issue the policy. On March 5, 1935, the Insurance Company advised the broker by telegram that the Insurance Company was binding effective that date for the Construction Company an employer's liability policy with standard limits. On the same day the broker forwarded to the agent its check for the deposit premium, requesting the agent to advise if further information was desired. On March 6, 1935, the agent filled in and forwarded to the Insurance Company an application for the policy. The policy was prepared by the Insurance Company and forwarded to the agent, who in turn forwarded it to the broker. The policy as originally written contained classification 5506. The broker returned the policy to the agent with a letter stating, from a review of the correspondence, it believed classification 5507 more properly described the business operations of the Construction Company. On March 13, 1935, the Insurance Company placed a rider on the policy incorporating therein classification 5507. It was returned to the broker on March 28, 1935.

Sec. 10533, O.S.1931, created a State Insurance Board and authorized it to supervise and regulate rates for liability insurance. Sec. 10534, O.S.1931, provides that every liability insurance company shall file with the Insurance Board a general basis schedule, showing its rates for liability insurance and all terms and conditions which in any way might affect such rates. Sec. 10537, O.S.1931, provides that no insurance company shall engage in insurance against legal liability in the state, unless the required schedule of rates has been filed, and that an insurance company shall not write insurance at a rate different from that named in the schedule, or remit or refund any portion of the rates so established, or extend to any person any privilege or inducement, except as specified in the schedule.

Sec. 10540, O.S.1931, prohibits liability insurance companies, directly or indirectly, by any rate, tariff, rebate, or other different charge, from collecting a different premium from one person than is collected from another in a like situation.

The Oklahoma Inspection Bureau is a private enterprise maintained by the insurance companies and its function is to compile the general basis schedule which sets out the rates for the risks insured. These rates are commonly referred to as "manual rates." The manual rates are filed with the Insurance Board. It is common practice for an insurance company to adopt the manual as its schedule. See American Druggists' Fire Insurance Company v. State Insurance Board, 184 Okl. 66, 84 P.2d 614, 618.

It is a fair inference from the record that at the time the policy here involved was issued, the Insurance Company had adopted the manual as its schedule.

The manual contained the following classifications:

"No. 5506. Street or road construction or reconstruction, paving or repaving, surfacing or resurfacing or scraping — all kinds — including drivers, chauffeurs and their helpers. — (Clearing of right of way; earth or rock excavation; filling or grading; tunneling; bridge or culvert building; quarrying; stone crushing to be separately rated.)

"No. 5507. Street or road construction — clearing of right of way; earth excavation; filling or grading — including drivers, chauffeurs and their helpers. — (Rock excavation; tunneling; bridge or culvert building where clearance is more than 10 feet at any point or the entire distance between terminal abutments exceeds 20 feet; quarrying; stone crushing to be separately rated.)

"No. 5508. Street or road construction — rock excavation — including incidental quarrying, stone crushing or drivers, chauffeurs and their helpers — no tunneling."

Classifications 5506 and 5507 as set forth in the manual were incorporated in the policy.

Other pertinent provisions of the manual are set forth in note 5.⁵

The application stated that the Construction Company would not use explosives. The policy contained the following provision:

"Item 11. No explosives are used, except as follows: No exceptions."

On September 4, 1935, Buddy Remer, an employee of the Construction Company, was drilling a hole in a ledge of rock in the right of way of the road under construction. His drill came in contact with an unexploded charge of dynamite, which exploded, and fatally injured him. On September 5, 1935, the Construction Company made a report of the accident to the agent disclosing that Remer's death resulted from the use of explosives in the construction of the highway. The Insurance Company investigated the accident and on September 12, 1935, advised the Construction Company that since Remer's death resulted from the use of explosives, the accident was not within the coverage of the policy.

In October, 1935, the administrator of the estate of Remer brought an action against the Construction Company to recover damages for the wrongful death of Remer. The Insurance Company undertook the defense of the action under a reservation of right to deny liability. At the time the wrongful death action was commenced, the Construction Company was, and ever since has been, insolvent. The administrator recovered a judgment against the Construction Company for $10,000. The Insurance Company superseded the judgment. On appeal it was reversed.⁶ A retrial resulted in a judgment in favor of the administrator for $15,000. It was affirmed on appeal.⁷

The administrator brought this action against the Insurance Company, as garnishee, to recover the amount due the Construction Company on the policy.

Eugene Whittington, a member of the agent's firm, testified that he had been in the insurance business 34 years; that the application was filled in and the answer to Item 11 incorporated in the policy at a time when it was believed the proper classification was 5506; that later classification 5507 was incorporated in the policy by a rider; that classification 5507 contemplates the use of explosives; that it includes rock excavation, and that rock excavation requires the use of explosives; that when classification 5507 was incorporated in the policy, it was his conclusion that explosives would be used incidentally in rock excavation; and that he knew from the location of the road that granite rock would have to be removed in the construction thereof. He further testified it was his opinion that classification 5507 covers rock excavation and the incidental use of explosives, and classification 5508 covers rock excavation by means of a separate outside plant and not mere rock excavation incidental to the clearing of rock from the right of way of a road.

Premiums were paid on the policy computed on the wages of all the employees of the Construction Company on the basis of classification 5507. While the appeal from the first judgment in favor of the administrator was pending, and after the Construction Company had completed its contract, the Insurance Company audited the payroll of the Construction Company, determined that premiums should have been paid on all the employees on the basis of classification 5508, and demanded additional premium amounting to $1,027.90. The broker assured the agent that the additional premium would be paid. However, the Construction Company failed to pay the additional premium demanded, due, no doubt, to its financial situation.

The pertinent provisions of the policy are set forth in note 8.⁸

From a judgment for $15,576.06 in favor of the administrator, the Insurance Company has appealed.

I. The Coverage of the Policy.

The italicized provisions of the manual, set forth in note 5, and adopted by the Insurance Company and the quoted provisions of the policy manifest a clear intent on the part of the Insurance Company and the Construction Company that the policy should cover the entire operations of the Construction Company in performing the construction contract.

Under the provisions of classification 5507 if the Construction Company engaged in rock excavation not embraced within the...