Dairyland Ins. Co. v. Richards
| Decision Date | 10 November 1970 |
| Docket Number | No. 2,CA-CIV,2 |
| Citation | 476 P.2d 530,13 Ariz.App. 324 |
| Parties | DAIRYLAND INSURANCE COMPANY, Appellant, v. Charles RICHARDS and Lois Richards, husband and wife, Appellees. 836. |
| Court | Arizona Court of Appeals |
Murphy, Vinson & Hazlett, by Carl E. Hazlett, Tucson, for appellant.
Lesher & Scruggs, P.C., by D. Thompson Slutes, Tucson, for appellees.
This is an appeal from a $10,000.00 judgment entered against the appellant-insurer in garnishment proceedings.
Lois Richards was injured in an automobile accident on August 31, 1968 and on October 22, 1968, she and her husband filed suit to recover for her injuries, naming as defendants Raymond and Eula Sherfield and Pete O'Field. The complaint alleged that Lois Richards was injured 'due to the negligence of the defendant, Pete O'Field, who at all material times was acting as agent of, or by the consent of Raymond Sherfield and Eula Sherfield, the owners of the automobile driven by O'Field.' The prayer for relief requested damages 'in a sum which is reasonable and just.' On November 19, 1968, defendant O'Field's default was entered and two days thereafter the default of defendants Sherfield was entered. On April 10, 1969, a hearing was held on the Richards' application for default judgment. Testimonial and documentary evidence were received and judgment was entered in the sum of $22,500.00 against all defendants.
At the time of the accident in question, O'Field was insured under an operator's policy of motor vehicle liability insurance issued by the appellant-insurer. This insurance policy provided liability coverage for the named insured, O'Field, when operating a motor vehicle 'not owned in full or in part by or registered in the name of the insured.' The insurer had been given notice of the Richards' lawsuit but had declined to defend. At the time of the accident, Raymond and Eula Sherfield were the registered owners of the vehicle operated by O'Field although O'Field had fully paid them for it.
The instant garnishment proceedings followed. The insurer denied any indebtedness to O'Field. The Richards filed a pleading tendering an issue, alleging that the garnishee's answer was incorrect and that it was required to pay the judgment against O'Field under the terms of an insurance policy in full force and effect at the time of the accident.
In response to interrogatories submitted by the judgment creditors, the insurer admitted that on August 31, 1968, a 'named operator's policy' was in effect affording coverage to O'Field. It also responded that coverage was restricted 'to a private passenger automobile not owned in full or in part by or registered in the name of the insured' and since the insured owned the vehicle he was driving on August 31, 1968, there was no insurance coverage.
The trial court conducted a hearing and after submission of memoranda, ordered judgment in favor of the Richards in the amount of $10,000.00, the policy limit. The court made findings of fact and conclusions of law. It expressly found that at the time of the accident, there was in effect an automobile liability policy; the defendant O'Field was the insured and the garnishee was the insurer; at the time of the accident the defendant O'Field was neither the registered owner of the 1956 Dodge truck which he acquired from the defendants Sherfield nor did he have the right to purchase the same under a conditional sales contract. The court concluded that O'Field was not in fact the 'owner' of the 1956 Dodge truck, and that the issue of ownership had become res judicata by virtue of the entry of the judgment in the case.
Since we agree with the trial court's conclusion that O'Field was not the 'owner', we do not consider the applicability of the res judicata doctrine.
A.R.S. § 28--130 defines the term 'owner':
"Owner' means a person who holds the legal title of a vehicle or, if a vehicle is the subject of an agreement for the conditional sale or lease thereof with the right of purchase upon performance of the conditions stated in the agreement and with an immediate right of possession vested in the conditional vendee or lessee, the conditional vendee or lessee, or, if a mortgagor of a vehicle is entitled to possession, the mortgagor.'
There is no dispute that O'Field was not the registered owner of the vehicle involved in the accident in question. Also, he was neither a conditional vendee or lessee, nor a chattel mortgagor entitled to possession. The insurer argues however, that since O'Field had paid for the vehicle at the time of the accident, he was the equitable owner and was therefore excluded from coverage under his operator's policy. In support of this position, it cites the case of Tolano v. National Union Insurance Companies, 419 F.2d 377 (9th Cir. 1969)....
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Dairyland Ins. Co. v. Richards
...for appellees. STRUCKMEYER, Justice. This matter arises out of a petition for review of an opinion of the Court of Appeals, 13 Ariz.App. 324, 476 P.2d 530, affirming a judgment against the Dairyland Insurance Company. For the reasons hereinafter stated, the opinion of the Court of Appeals i......
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Tarnoff v. Jones
...in our opinion, to put the defendant on notice that the court has been requested to award such relief. See Dairyland Ins. Co. v. Richards, 13 Ariz.App. 324, 476 P.2d 530 (1970), where the court held that a default judgment in the amount of $22,500 did not violate the mandate of Rule 54(d) w......
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