Davis v. Liberty Mutual Insurance Company
| Decision Date | 08 November 1962 |
| Docket Number | No. 16958.,16958. |
| Citation | 308 F.2d 709 |
| Parties | Luella DAVIS, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Forrest Boecker, St. Louis, Mo., William B. Ewald, St. Louis, Mo., on the brief, for appellant.
William W. Evans, St. Louis, Mo., for appellee.
Before VOGEL and VAN OOSTERHOUT, Circuit Judges, and VAN PELT, District Judge.
This case involves the coverage under a service station policy of insurance issued by appellee to the employer of appellant's husband. The policy provisions are not in dispute.
Appellant's husband was employed as a service station attendant in St. Louis. While in the performance of his duties as such attendant on December 17, 1960, and when mounting a tubeless automobile tire on a ring and introducing compressed air into the tire, an explosion occurred resulting in fatal injuries. Appellant brought suit against the employer for her husband's death claiming negligence and recovered a judgment for $25,000.00 and costs.
The case before us arises by reason of the issuance and service upon appellee of a garnishment summons to which appellee made answer. Appellee then filed a motion for summary judgment. Appellant answered this motion. Upon submission, the trial judge sustained the motion and discharged the garnishee, holding in effect that appellee, under the terms of the policy issued, had not become liable to pay the judgment which appellant had recovered against appellee's insured. The widow appealed.
The question presented here and in the trial court is one of coverage. It is whether or not the service station policy of insurance issued by appellee excluded from its coverage a claim arising by reason of the death of an employee injured while engaged in his employment as a service station attendant.
The policy binds appellee:
It contains an exclusion clause whereby the policy does not apply:
"(h) as respects coverage A, to bodily injury of any employee of the insured arising out of and in the course of his employment by the insured; * * *."
It is the contention of appellant that this exclusion clause does not operate to avoid the insurer's liability because it excludes only "bodily injury of any employee of the insured" and does not exclude the insured employer's liability to appellant for damages on account of the wrongful death of appellant's husband.
It is further contended that the term "bodily injury" as used in the policy is ambiguous. The language relied upon to create the ambiguity is contained in coverage A, which provides that the coverage encompasses "bodily injury, sickness or disease, including death resulting therefrom, hereinafter called `bodily injury.'" It is claimed (See Record, page 27) that "the words `bodily injury' are used in their ordinary sense, and are then made words of art and given an entirely different meaning to include not only their ordinary meaning, but also to include sickness or disease, including death resulting therefrom," thereby creating an ambiguity.
It is further claimed as a matter of law, the policy having been prepared by appellee, that any ambiguities in the policy are to be construed against appellee. It is also contended that exclusion clauses are to be narrowly construed and if there are ambiguities the policy is to be construed so as to favor coverage and...
To continue reading
Request your trial
-
Vappi & Co. v. Aetna Cas. & Sur. Co.
...Couch, Insurance 2d, §§ 15:92-15:94, 41:5, 41:374; Appleman, Insurance Law and Practice, §§ 7403, 7404. Cf. Davis v. Liberty Mut. Ins. Co., 308 F.2d 709, 710-711 (8th Cir.). Any ambiguity in the somewhat complicated exclusions must be construed against the insurer. See Schroeder v. Federal ......
-
Telex Corporation v. Balch
...395, 53 N.W.2d 273, 277; Matthews v. Minnesota Tribune Co., 215 Minn. 369, 10 N.W.2d 230, 232, 147 A.L.R. 147; Davis v. Liberty Mut. Ins. Co., 8 Cir., 308 F.2d 709, 711; Minneapolis-Moline Co. v. Chicago, M., St. P. & P. R. R., 8 Cir., 199 F.2d 725, The general rule, supported by overwhelmi......
-
Cass Bank & Trust Co. v. National Indemnity Co.
...and gives effect to the intention of the parties thereto. * * *" (Citations omitted.) To like effect, see Davis v. Liberty Mut. Ins. Co., 8 Cir., 308 F.2d 709, 711. 44 C.J.S. Insurance § 294, p. 1159, "The words or terms should be taken and understood as an average or reasonable person, wit......
-
Tickner v. Union Ins. Co.
...appears in certain other exclusionary provisions of the policy. This argument is strained and without merit. Davis v. Liberty Mutual Insurance Co., 8 Cir., 308 F.2d 709, 710--711. For the reasons indicated, the judgment must be reversed. It is so STONE, and TITUS, JJ., concur. 1 Quoted as N......