Fidelity and Cas. Co. of New York v. Wrather, 12636

• Decision Date: 05 May 1983
• Docket Number: No. 12636,12636
• Citation: 652 S.W.2d 245
• Parties: The FIDELITY AND CASUALTY COMPANY OF NEW YORK, a New Hampshire Corporation, Plaintiff-Respondent, v. Aubrey L. WRATHER, Kenneth Nanney, d/b/a Nanney Trucking Company, James Robert Pardon and Gary Mason Deem, Defendants, v. Aubrey L. WRATHER, Third-Party Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Third-Party Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 245

652 S.W.2d 245

The FIDELITY AND CASUALTY COMPANY OF NEW YORK, a New

Hampshire Corporation, Plaintiff-Respondent, v. Aubrey L. WRATHER, Kenneth Nanney, d/b/a Nanney Trucking

Company, James Robert Pardon and Gary Mason Deem, Defendants, v. Aubrey L. WRATHER, Third-Party Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Third-Party

Defendant-Appellant.

No. 12636.

Missouri Court of Appeals,

Southern District,

Division Three.

May 5, 1983.

Motion for Rehearing or to Transfer Denied

May 26, 1983.

James S. Green, Hux & Green, Sikeston, for plaintiff-respondent.

No appearance for defendant and third-party plaintiff Wrather.

Harold D. Jones, Bock & Jones, New Madrid, for third-party defendant-appellant State Farm Mut. Auto. Ins. Co.

FLANIGAN, Judge.

This appeal by State Farm Mutual Automobile Insurance Company arises out of a declaratory judgment action in which the trial court, sitting without a jury, found that two policies of liability insurance issued to one Wrather afforded coverage to him in the defense of a tort action brought against Wrather and others by one Nanney. One of the policies was issued by State Farm and the other was issued by The Fidelity & Casualty Company of New York ("F & C"). Only State Farm has appealed.

The declaratory judgment action was instituted by plaintiff F & C against defendants Wrather, Nanney, and the drivers of other vehicles involved in a series of collisions. Wrather filed a third-party petition against State Farm. In their respective pleadings F & C, Wrather, and State Farm requested declaratory relief.

In the tort action Nanney's petition sought $10,000 for property damage to Nanney's tractor-trailer unit and $6,000 for the loss of its use. That petition alleged that on June 13, 1980, Nanney's tractor-trailer unit sustained damage in a series of collisions which occurred on Missouri Highway 162 in New Madrid County. Defendants in the tort action were Wrather and the operators of three vehicles. The petition charged that Nanney's damage was caused by the joint and concurrent negligence of all the defendants.

With respect to Wrather, Nanney's petition pleaded that Wrather "carelessly and negligently caused to be burning a large field of wheat stubble and the smoke and ash from the fire was blowing directly northerly across Highway 162, thereby obscuring, blocking and making extremely hazardous vision and travel upon said highway." The petition also alleged that Wrather "carelessly and negligently caused to be burning in close proximity to a heavily traveled state highway a large wheat field and failed to warn or otherwise advise motorists of the danger," that Wrather "caused to be burned the wheat field at a time when the wind and atmospheric conditions were totally improper," and that Wrather "failed to either sufficiently contain the smoke and fire so as to avoid obscuring the vision of the motorists on Highway 162 or failed to provide warning to motorists of the hazardous and dangerous condition created by the burning wheat field of [Wrather]."

State Farm contends that the trial court erred in finding that the State Farm policy afforded coverage ¹ to Wrather in the defense of the tort action for the following reasons: (a) Wrather's conduct was not within the liability coverage afforded by Section I, Coverage A of the State Farm policy set forth marginally, ² because it constituted "intentional use, and not accidental use of his car"; that conduct consisted of "igniting an old tire, attaching same with a chain to the bumper of his car, and dragging it through the wheat field"; (b) the uncontroverted evidence was that limited visibility on the highway was created by dense dark smoke from burning green vegetation which Wrather had ignited by hand while he was walking and not from the white smoke created by the burning wheat stubble which had been ignited by dragging the burning tire behind the vehicle; (c) any highway hazard created by the conduct of Wrather in pulling a burning tire behind the vehicle did not have "sufficient causal relationship to the contemplated coverage of the use of the vehicle"; also, an identical result would have occurred whether or not the burning tire was dragged; (d) the trial court found that the black smoke, which had limited visibility on the highway, did not result from the use of the vehicle and on that basis found there was no coverage under the F & C policy because of an applicable exclusion therein; this finding was inconsistent with the finding of coverage under the State Farm policy. None of the foregoing reasons has merit.

"Ordinarily the insurer's duty to defend is determined from the policy provisions and the allegations of the petition" [in the tort action]. Zipkin v. Freeman, 436 S.W.2d 753, 754 (Mo. banc 1968); Farmers Alliance Mut. Ins. C. v. Reed, 530 S.W.2d 470, 475 (Mo.App.1975). The petition in the tort action "must be looked to for establishment of [the insurer's] obligation to defend under the policy." Butters v. City of Independence, 513 S.W.2d 418, 424 (Mo.1974). Zipkin also holds, at p. 754, that the insurer "cannot safely ignore actual facts known to it or which could be known from reasonable investigation," that is, "the facts which were known, or should have been reasonably apparent at the commencement of the suit and not the proof made therein or the final result reached." To similar effect see Schmidt v. Utilities Ins. Co., 353 Mo. 213, 182 S.W.2d 181, 184 (Mo.1944). "When a ... petition in an action against one to whom a policy of automobile liability insurance has been issued states different causes of action or theories of recovery against the insured, one of which is within the coverage of the policy and others of which may not be, the insurer is bound to defend with respect to those causes of action which, if proved, would be within the coverage." 7 Am.Jur.2d Auto.Ins. § 392, p. 1150.

The allegations of Nanney's petition, with respect to the conduct of Wrather, have been set forth. Those allegations make no mention of Wrather's "igniting an old tire, attaching same with a chain to the bumper of his car" and dragging it through the wheat field. It is from Wrather's testimony at the trial of the declaratory judgment action that State Farm obtains its description of his conduct. State Farm does not claim, however, that the same information was not available to it before the tort action was filed.

From the tenor of State Farm's brief this court infers that State Farm takes the position that the issue of coverage under the State Farm policy hinges solely upon Wrather's version of the events of June 13, 1980, as contained in his trial testimony and is neither governed nor affected by the allegations of the tort petition. Indeed the argument portion of State Farm's brief refers only to the "uncontroverted evidence" and makes no mention of the allegations of the tort petition. ³ For the reasons which follow this court concludes that the trial court properly found that coverage existed under the State Farm policy, and this is so whether the operative facts stem from the allegations of the tort petition (supplemented by "actual facts" which "could be known from reasonable investigation") on the one hand, or from Wrather's trial testimony on the other hand or from a combination of the two.

Wrather, a wheat farmer of 40 years' experience, testified that he owned a "square" 160-acre tract which was on the south side and adjacent to Highway 162. Weather conditions on June 13 were "very hot and very dry." He had harvested his wheat crop and it was his intention to "fire the wheat stubble" as a preliminary to planting a crop of soybeans. The highway ran generally east and west. Between the south edge of the highway and Wrather's wheat field was a "grass strip," about 40 feet wide, containing grass "from waist high to knee high all along there."

Wrather drove his station wagon, the vehicle insured under the State Farm policy, into the wheat field and near its north end. "I went in there with my automobile and my tire. I put the tire on top of my first row of [wheat stubble] and started the fire under the tire. I was burning the tire because it makes a good burner. I intended to tie the tire on the back of the station wagon and drag it over the wheat field. I was out of the station wagon when I first lit the wheat stubble under the tire. While the tire was catching on fire I wanted to burn this little wet end [in the northeast corner of the wheat field]. I walked across there and just set a few fires around in there [by hand] so they could be burning while I was going here. While I was on foot I set five or six fires--five or six spots. It was five to seven minutes after I set these other fires before I got back to the station wagon, hooked the tire on, and started criss-crossing the field. I got into the station wagon with the burning tire attached to the rear of it and by that time it was getting burned. My other fire was going all right so I got on the first line next to my green grass and I went back and forth across there, just started driving back and forth."

After he began criss-crossing the field in the station wagon with the burning tire attached, Wrather worked his way to the south end of the field and was there "before I knew there was a problem at all. Someone told me there had been an accident or something on the road. I went back to the north end of the field where the green grass had caught fire and I saw some wrecked vehicles." About 30 minutes elapsed from the time Wrather "set the first fire" until he "returned and saw there had been a wreck."

The five or six fires which Wrather set while he was on foot will be called "the hand-set fires."

The basic inquiry is whether the damage to Nanney's tractor-trailer unit was "caused by accident resulting from the use" of Wrather's station wagon. The State Farm policy does not contain a definition of any of the words in the quoted...