Dieckman v. Moran, 52378

Decision Date08 May 1967
Docket NumberNo. 2,No. 52378,52378,2
Citation414 S.W.2d 320
PartiesHarold D. DIECKMAN and La Verne E. Dieckman, Appellants, v. Frank R. MORAN and Hartford Fire Insurance Company, Respondents
CourtMissouri Supreme Court

Edward J. Delworth, Clayton, for plaintiffs-appellants.

Murphy & Kortenhof, Edward E. Murphy, Jr., St. Louis, for respondent Hartford Fire Ins. Co.

PRITCHARD, Commissioner.

Plaintiffs recovered judgment for personal injuries and loss of consortium against defendant Moran for $17,000. In this equitable garnishment proceedings against Moran's insurer, Hartford Fire Insurance Company, under § 379.200, RSMo 1959, V.A.M.S. (ruled against plaintiffs by the trial court), the determinative question is whether the incident out of which arose Harold D. Dieckman's injuries and resultant judgment is excluded from coverage under provisions of Moran's Homeowners Policy as a 'Business Pursuit.'

There is also a question of the sufficiency of notice of claim under the policy. Hartford did not press that defense in the trial court, and does not do so here. It is unnecessary to consider the notice issue in view of the holding hereinafter made.

Dieckman and Moran were employed as sheet metal workers by the St. Louis Board of Education on June 17, 1963, when, during the course of employment, Moran activated a power brake on a sheet metal machine and thereby caused injury to Dieckman. Hartford's Homeowners Policy, issued to Moran, was in force on that date.

Under Section II of the policy coverage was provided: 'E. Comprehensive Personal Liability (Bodily Injury and Property Damage) $25,000.00 each occurrence; F. Medical Payments--Each person $500.00; G. Physical Damage to Property of Others $250.00.' In 'Provisions Applicable to Section II,' Hartford agreed with its insured 'To pay on behalf of the insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, and the company shall defend any suit against the insured alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; * * *.'

Under 'Special Exclusions' it was provided: 'Section II of this Policy Does Not Apply:

(a) (1) to any business pursuits of an Insured, other than under coverages E and F, activities therein which are ordinarily incident to non-business pursuits,

(2) to the rendering of any professional service or the omission thereof, or

(3) to any act or omission in connection with premises, other than as defined, which are owned, rented or controlled by an Insured, but this subdivision (3) does not apply with respect to bodily injury to a residence employee arising out of and in the course of his employment by the Insured.'

Paragraph 2(d) of Definitions under General Conditions provides: 'Business: 'Business' includes trade, profession or occupation.'

It is true, as plaintiffs state, the policy provides a comprehensive coverage for personal liability. They say further that the phrase in Section II(a)(1) of the policy 'other than under Coverages E and F' is set off from the rest of the clause by commas, and the clause may be read to exclude 'business pursuits of an insured * * *, activities therein which are ordinarily incident to non-business pursuits.' The two remaining portions of the clause are then read as being in series so that coverage is excluded under Section G as to business pursuits of an insured and activities therein which are 'ordinarily incident to non-business pursuits.' Apparently, although plaintiffs do not clearly state, their position is that by excluding said phrase, Coverages E and F are afforded for the incident out of which the injuries arose. They would apply the exclusion only to Coverage G for physical damage.

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34 cases
  • State Farm Fire & Cas. Co. v. Reed
    • United States
    • Texas Supreme Court
    • 29 Septiembre 1993
    ...1033 (Ala.1978); Rodriguez, 821 P.2d at 853; Western Fire Ins. Co. v. Goodall, 658 S.W.2d 32, 34 (Mo.App.1983) (citing Dieckman v. Moran, 414 S.W.2d 320 (Mo.1967)); Haley v. Allstate Ins. Co., 129 N.H. 512, 529 A.2d 394, 396 (1987); Kelsey, 678 P.2d at 752; Floyd, 427 S.E.2d at 196-97; Rock......
  • Galemore v. Haley
    • United States
    • Missouri Court of Appeals
    • 17 Septiembre 1971
    ...where none exists (Central Surety & Ins. Corp. v. New Amsterdam Cas. Co., 359 Mo. (banc) 430, 435, 222 S.W.2d 76, 78(1); Dieckman v. Moran, Mo., 414 S.W.2d 320, 321(3); Carter v. General American Life Ins. Co., Mo.App., 452 S.W.2d 253, 257); and where, as here, there is no ambiguity, the cl......
  • Crane v. State Farm Fire & Cas. Co.
    • United States
    • California Court of Appeals Court of Appeals
    • 27 Enero 1971
    ...was held that this was a business pursuit, and the exclusion was held applicable, the exception being inapplicable. (Dieckman v. Moran (Sup.Ct.Mo.1967) 414 S.W.2d 320, 322.) The court in that case concluded the exception to the business exclusion was poorly worded, but not ambiguous; and th......
  • Millers Mut. Ins. Ass'n of Illinois v. Shell Oil Co.
    • United States
    • Missouri Court of Appeals
    • 25 Noviembre 1997
    ...as a contract may be open to different constructions, we will adopt the interpretation most favorable to the insured. Dieckman v. Moran, 414 S.W.2d 320, 321 (Mo.1967). This rule does not authorize a perversion of language or the exercise of inventive powers for the purpose of creating an am......
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