Henderson v. International Service Ins. Co., 37322

• Citation: 396 P.2d 877,65 Wn.2d 300
• Decision Date: 25 November 1964
• Docket Number: No. 37322,37322
• Court: Washington Supreme Court
• Parties: John M. HENDERSON, Respondent, v. INTERNATIONAL SERVICE INSURANCE COMPANY, a corporation, Appellant.

Page 300

65 Wn.2d 300

396 P.2d 877

John M. HENDERSON, Respondent, v. INTERNATIONAL SERVICE INSURANCE COMPANY, a corporation, Appellant.

No. 37322.

Supreme Court of Washington, Department 2.

Nov. 25, 1964.

Rehearing Denied Jan. 19, 1965.

H. Earl Davis, Spokane, for appellant.

Reiley & Annis, Spokane, for respondent.

ROSELLINI, Judge.

This is an action on a policy of motorvehicle insurance. The policy was issued to Leslie W. McCoy, who was an airman stationed at Fairchild Air Force Base. While in the performance of his duties at the base, he loaned the insured motor scooter to a fellow airman, John M. Henderson who, while likewise engaged in the performance of his duteis, was involved in an accident which caused injuries to a third airman. The injured airman, one Ralph S. Kearns, brought suit against McCoy and Henderson.

Henderson tendered defense of the suit to International Service Insurance Company, which had in effect an insurance policy naming McCoy and describing the motor scooter which was involved in the accident. The International Service Insurance Company denied coverage to Henderson, but settled the claim against McCoy for $1,000.

Allstate Insurance Company had in effect a policy naming Henderson and describing his Ford Station Wagon. Through its attorneys, Allstate negotiated a compromise settlement with Kearns and settled his claim against Henderson for $5,000.

To effect the settlement with Kearns, Henderson executed a loan-receipt agreement with Allstate, and, pursuant to that agreement, brought this action on the policy issued by International Service Inurance Company. The trial court found that this company, as insurer of the vehicle, was the primary insurer, and consequently the plaintiff's policy was excess insurance available only when the primary insurance coverage was exhausted.

The defendant has appealed and contends that the court misconstrued its policy of insurance. That policy provides the following pertinent coverage:

'III. Definition of Insured: (a) With respect to the insurance for bodily injury liability and for property damage liability the unqualified word 'insured' includes the named insured and, if the named insured is an individual, his spouse if a resident of the same household, and 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 by the named insured or such spouse or with the permission of either. The insurance with respect to any person or organization other than the named insured or such spouse does not apply:

'(2) to any employee with respect to injury to or sickness, disease or death of another employee of the same employer injured in the course of such employment in an accident arising out of the maintenance or use of the automobile in the business of such employer.'

The trial court held that members of the armed forces of the United States are not 'employees' of the government, and therefore the exclusionary provision in the omnibus clause, quoted above, was inapplicable. It is the contention of the defendant...