Dunsmore v. Co-operative Fire Ins. Ass'n of Vermont

• Decision Date: 05 December 1972
• Docket Number: No. 106-72,CO-OPERATIVE,106-72
• Citation: 131 Vt. 14,298 A.2d 853
• Parties: Murray K. DUNSMORE and Martha S. Dunsmore v.FIRE INSURANCE ASSOCIATION OF VERMONT.
• Court: Vermont Supreme Court

Page 853

298 A.2d 853

131 Vt. 14

Murray K. DUNSMORE and Martha S. Dunsmore v. CO-OPERATIVE FIRE INSURANCE ASSOCIATION OF VERMONT.

No. 106-72.

Supreme Court of Vermont.

Dec. 5, 1972.

Robert H. Brown, St. Albans, for plaintiffs.

Donald D. Ferland, of Conley & Foote, Middlebury, for defendant.

Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.

KEYSER, Justice.

The plaintiffs were issued a standard fire insurance policy covering farm property by the defendant company to which a so-called 'Machinery Floater Form' was attached. By this form the movable farm machinery listed in the schedule of the policy was insured against loss or damage directly resulting from certain specified hazards. One such peril and the one with which we are concerned here reads as follows:

'Collision or derailment or overturn of a vehicle while the insured property is being legally transported on a public highway.'

The facts are undisputed. One item in the schedule of property covered by the policy was a Fergerson tractor. On August 1, 1966, the plaintiffs' son was driving the tractor from the driveway of plaintiffs' farm to the public highway. Upon turning off the driveway onto the highway, the operator was unable to straighten the wheels sufficiently so that the tractor continued turning and then crashed into and through the guard rail on the side of the bridge. The tractor then fell about fifteen feet into the brook below the bridge, landing right side up and breaking in two.

The plaintiffs brought suit to recover Seven Hundred Dollars ($700.), the scheduled amount of insurance on the tractor. Plaintiffs' suit is based on the claim that the defendant company was liable under the terms of the Machinery Floater Form. The insurance company denied coverage and the case proceeded to trial by the court. The parties, by stipulation, requested the court to construe the language of the policy and declare their respective rights under the Machinery Floater Clause.

The trial court held that the damage to the tractor was covered by the clause in the policy: 'Collision or derailment or overturn of the vehicle while the insured property is being legally transported on a public highway.' Judgment was accordingly entered for the plaintiffs to recover Seven Hundred Dollars ($700.) damages and costs from which order the defendant insurance company appealed.

The sole issue is whether, on the facts shown, the tractor was 'being transported' in such a manner that the loss was brought under the coverage of the clause of the 'Machinery Floater Form', above quoted. The pivotal point in the controversy centers around the construction of the word 'transported' as used in the above-quoted clause in the 'Machinery Floater Form'.

A second rider was attached to the policy called 'Livestock Floater Form' which insured livestock against death or destruction resulting from certain specified perils, one being-

'Collision or derailment or overturn of the vehicle in which the insured property is being transported.'

The appellees draw a contrast between the language of the two forms and from this they rationalize that the language of the clause in the 'Machinery Floater Form' is ambiguous. This is the only reason cited in support of their claim of ambiguity. Thus, it would appear that if the 'Livestock Floater Form' was not attached to the basic fire insurance policy the plaintiffs' contention of ambiguity would not be possible. These riders are unrelated to each other and express the contract agreement in each instance in clear, plain language. The mere fact that the 'Machinery Floater Form' does not require transportation of the item of machinery in another vehicle as is the case in the 'Livestock Floater Form' does not establish an ambiguity in the insurance contract as claimed.

In the absence of ambiguity, it is generally the function of the court only to construe and enforce the contract in accordance with the terms in which it is written, and not make a new contract or change its provisions. 44 C.J.S. Insurance § 290.

In Noyes v. Commercial Travelers, 125 Vt. 336, 215 A.2d 495, we held at p. 338, 215 A.2d at p. 497:

'A contract of insurance is to be construed according to its terms and the evident intent of the parties as gathered from the language used. (Case omitted). Like other contracts, they must receive practical, reasonable, and fair interpretations,...