Farmers Ins. Co., Inc. v. Morris

• Decision Date: 30 August 1976
• Docket Number: No. KCD27482,KCD27482
• Citation: 541 S.W.2d 66
• Parties: FARMERS INSURANCE COMPANY, INC., Respondent, v. Stanley L. MORRIS et al., Appellants.
• Court: Missouri Court of Appeals

Page 66

541 S.W.2d 66

FARMERS INSURANCE COMPANY, INC., Respondent, v. Stanley L. MORRIS et al., Appellants.

No. KCD27482.

Missouri Court of Appeals, Kansas City District.

Aug. 30, 1976.

Roy W. Brown, Kansas City, for appellants.

Richard H. Heilbron, Kansas City, for respondent.

Before DIXON, P.J., PRITCHARD, C.J., and WASSERSTROM, J.

WASSERSTROM, Judge.

Farmers Insurance Company, Inc., brought this suit to obtain a judgment declaring it not to be liable under an automobile policy issued by it to John B. Cresson, respecting injuries caused when an automobile operated by Mrs. Cresson, the insured's wife who is now deceased, came into collision with Karen Traynor. The automobile driven by Mrs. Cresson at the time of the accident was owned by her son and daughter-in-law, Mr. and Mrs. John D. Riggs, and was insured by American Family Insurance Company. The defendants named in this declaratory judgment suit were Stanley L. Morris, administrator of the estate of Mrs. Cresson, Traynor and American. The trial court entered judgment for plaintiff. Traynor appeals.

The issue in this case is whether coverage under the Farmers' policy extended to the Riggs' automobile involved in the Traynor accident. The only vehicle described in the Farmers' policy was a 1962 Ford Fairlane owned by John B. Cresson. However the policy also covers liability for personal injury caused by either Mr. or Mrs. Cresson while using a 'non-owned automobile.' The question for decision here is whether the Riggs' 1966 sedan was a non-owned automobile within the definition of the Farmers' policy which reads:

'Non-Owned Automobile means an automobile not owned by or regularly or frequently used by the named insured or any resident of the same household, other than a substitute automobile.'

Under the facts in evidence, the Riggs, sedan was not a 'substitute automobile' within the policy definition because the Cresson Fairlane at the time in question was not 'withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.' The question for determination therefore narrows to the inquiry as to whether the Riggs' sedan was 'regularly or frequently used' by Mrs. Cresson.

The facts with respect to the availability and the use by Mrs. Cresson of the Riggs' sedan are not in dispute. Riggs was a son of Mrs. Cresson by a previous marriage. The Riggs and the Cressons lived in adjoining homes and had done so for 20 or 25 years.

Riggs owned three vehicles consisting of a 1968 station wagon, a pickup truck and the 1966 sedan. Riggs generally used the station wagon to go to and from work, and the Ford sedan was left at home 'the biggest share of the time.' That sedan had been purchased in 1966 and although not purchased for Mrs. Cresson's particular use, it had been available for her use during all of the 4 or 5 years of the Riggs' ownership. Mr. Cresson owned a 1962 Ford Fairlane car (the one insured by Farmers), but Mrs. Cresson drove it only once or twice and preferred instead to drive the Riggs' sedan because it was equipped with power steering. The Riggs permitted her to drive the sedan 'whenever she wanted to use it.' The only restriction on her use was that it could be only when Mrs. Riggs didn't need it. There was no limitation on where she could drive or go in it. During the 4 or 5 years prior to the accident in question, Mrs. Cresson had so used the Riggs' automobile for shopping, for going to the hairdresser, for the purpose of going on two vacations and for driving to work. In the latter respect, Mrs. Cresson and her son both worked for the same employer and on some occasions Mrs. Cresson rode with her son in the Riggs' station wagon; on other occasions she took the bus to work; but on still other occasions, particularly when Mr. Riggs was on the midnight shift, she drove the Riggs' 1966 sedan.

The Riggs parked their sedan in the Cresson back yard. Sometimes the Riggs would leave a set of keys with Mrs. Cresson when she indicated she wanted to use the car. Otherwise, basically, Mrs. Cresson would have to ask either Mr. or Mrs. Riggs for permission whenever she desired to drive the 1966 sedan, and the keys would then be turned over. When asked whether Mrs. Cresson had ever been refused permission to use the car when she asked for it, Riggs answered 'not my mother.'

The principles enunciated in State Farm Mutual Automobile Ins. Co. v. Western Casualty and Surety Co., 477 S.W.2d 421 (Mo. banc 1972) govern the analysis of these facts. The State Farm case required an interpretation of a similar 'non-owned automobile' clause and the court stated the general purpose and objective of such a clause as follows:

'State Farm's policy was intended basically to provide coverage on one designated vehicle (the 1964 station wagon) in return for the payment of a premium based on single car coverage. However, the policy does contain clauses which provide limited additional coverage for that single premium * * *.

'Another instance of additional coverage is provided by the policy provision with respect to operation of 'non-owned' automobiles. * * * The effect and purpose of such a clause is well stated in a statement with reference to 'drive other cars' provisions in an Annotation in 86 A.L.R.2d 937, 940, as follows: 'The purpose of the 'drive other cars' provision in an automobile liability policy is to cover occasional or incidental use of other cars without the payment of an additional premium, but to exclude the habitual use of other cars, which would increase the risk on the insurance company without a corresponding increase in the premium.''

Looking at what is meant by the term 'frequent or regular use' in light of that general objective, the court considered cases from other jurisdictions and pointed out that some other courts hold that is to be determined solely, or at least primarily, on the basis of the purpose for which the nonowned automobile was furnished, while other courts have decided the question on the basis of length or type of use. The State Farm opinion then holds:

'* * * we conclude that we should not limit ourselves either to a test of merely determining motive or purpose or one of simply measuring length and extent of availability of use. Rather, each case should be decided on its own facts, and the court should take into consideration the type and length of use, the purpose for which the non-owned automobile was furnished, and any other pertinent facts, including a determination of whether the use and purpose was in harmony with or violative of the objective of the 'non-owned automobile' clause.'

Applying here the criteria required to be considered by the State Farm opinion, the first factor is the matter of the type and length of use of the...