Fowler v. Farm Bureau Mut. Ins. Co. of Ind.

• Decision Date: 26 July 1965
• Docket Number: No. 20093,No. 1,20093,1
• Parties: Inez I. FOWLER, Ella Mae Perry, Mary L. Lynas, Appellants, v. FARM BUREAU MUTUAL INSURANCE COMPANY OF INDIANA, Appellee
• Court: Indiana Appellate Court

Page 262

209 N.E.2d 262

137 Ind.App. 375

Inez I. FOWLER, Ella Mae Perry, Mary L. Lynas, Appellants, v. FARM BUREAU MUTUAL INSURANCE COMPANY OF INDIANA, Appellee.

No. 20093.

Appellate Court of Indiana, Division No. 1.

July 26, 1965.

[137 INDAPP 376] Schrenker & Anderson, Anderson, for appellants.

Busby, Davisson, Cooper & Farr, Anderson, for appellee.

CARSON, Judge.

This case comes to us on appeal from the Hancock Circuit Court. The action below was instituted by the Farm Bureau Mutual Insurance Company against the named appellants and certain other parties who do not appear in this appeal. The Farm Bureau instituted the action seeking a declaratory judgment in connection with an insurance policy which the Bureau had written on Robert Clifford. The contention of the Bureau was that the policy in question did not have a 'family coverage' provision and that the only way in which the driver of a car covered by the policy would be covered would be where he was driving with the permission of the insured owner.

The court below found that the policy did not use the usual language 'residents of the same household' and that therefore the plaintiff-appellee was not responsible under its contract to defend and pay for any [137 INDAPP 377] judgment which might be obtained against Robert Clifford. It should be noted that the appellants in this action are persons who claim to have been injured as the result of an accident between the car owned by Robert Clifford and a car owned and operated by Inez Fowler. At the time of the accident the car owned by Robert Clifford was being operated by his minor stepson, Robert C. Carpenter. It is significant that Robert Clifford is not a party to the appeal against the Bureau which obtained a declaratory judgment in the court below.

The issues were framed by a complaint by the Bureau against the named appellants as defendants and certain other parties who did not join in the appeal setting out that the Bureau had insured Robert Clifford under an automobile policy that did not have family coverage; that the step-son, Robert Carpenter, as the driver of the automobile was not among the group covered by the policy; that there was no liability on the part of the Bureau since the policy did not cover persons in the situation of the stepson, Robert Carpenter, for the reason that Robert Carpenter was driving the car of his step-father without permission. The pertinent portions of the insurance contract were set out as an exhibit to the complaint and the plaintiff prayed that the rights of the Bureau be determined, fixed and declared, and that the true, intent, meaning and effect of the contract be determined as providing that there was no coverage or obligation on the part of the Bureau to make any payments under the policy. The defendants below filed an answer under Rule 1-3 of the Supreme Court of Indiana and the cause was submitted to the court on the issues as framed by the plaintiff's complaint and the defendants' answer. The pertinent provisions of the policy in question and [137 INDAPP 378] those clauses which the Bureau relied upon as limiting their liability read as follows:

'Coverage A--Bodily Injury Liability. To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages because of bodily injury, including death at any time resulting therefrom, sustained by any person or persons, caused by accident and arising out of the ownership, maintenance or use, including loading and unloading, of the automobile.'

'Coverage B--Property Damage Liability. To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the ownership, maintenance or use, including loading and unloading, of the automobile.'

'III. DEFINITION OF 'INSURED'

'(a) Coverages A and B. The unqualified word 'insured', wherever used in coverages A and B and in other parts of this policy, when applicable to such coverages, includes the named insured and, except where specifically stated to the contrary, also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is with the permission of the named insured. The insurance under this paragraph with respect to any person or organization other than the named insured or spouse does not apply.'

The court found that on the date of the accident that Robert C. Carpenter was operating the car owned by the defendant, Robert Clifford; that he was operating the automobile without the permission of the owner; that therefore the defendant, Robert Carpenter, was not an insured person within the meaning of exhibit A of the plaintiff's complaint.

[137 INDAPP 379] A motion for new trial was filed by certain of the appellants setting up four grounds. First, that the court erred in overruling the motion for new trial of the defendant-appellant Ella Mae Perry to present additional evidence; second, that the decision of the court is not sustained by sufficient evidence; third, that the decision of the court is contrary to law and; fourth, that the court refused to re-open the judgment to take additional testimony and set aside its findings and enter a new judgment or grant a new trial, for the reason that the defendants-appellants could produce material and new matter which material and new matter were set out in an affidavit attached to the ...