Industrial Indemnity Co. v. Continental Casualty Co., 9023

• Decision Date: 05 April 1967
• Docket Number: No. 9023,9024.,9023
• Citation: 375 F.2d 183
• Parties: INDUSTRIAL INDEMNITY COMPANY, Appellant, v. CONTINENTAL CASUALTY COMPANY, Appellee. CONTINENTAL CASUALTY COMPANY, Appellant, v. INDUSTRIAL INDEMNITY COMPANY, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

375 F.2d 183 (1967)

INDUSTRIAL INDEMNITY COMPANY, Appellant, v. CONTINENTAL CASUALTY COMPANY, Appellee.

CONTINENTAL CASUALTY COMPANY, Appellant, v. INDUSTRIAL INDEMNITY COMPANY, Appellee.

Nos. 9023, 9024.

United States Court of Appeals Tenth Circuit.

April 5, 1967.

Clayton B. Pierce, Oklahoma City, Okl. (John R. Couch, Oklahoma City, Okl., on the brief), for Industrial Indemnity Co.

Kenneth N. McKinney, Oklahoma City, Okl. (Duke Duvall, Oklahoma City, Okl., on the brief), for Continental Casualty Co.

Before MURRAH, Chief Judge, and HILL and SETH, Circuit Judges.

SETH, Circuit Judge.

This suit was commenced by one insurance company against another to determine whether the policy of the defendant company covered a loss which had been suffered by the plaintiff's named insured. The trial court found the policy did cover the loss as did the policy of the plaintiff, and made a proration between them. Both parties took this appeal.

The record shows that an oil company was having work done on its oil and gas lease by both an earth moving contractor, Johnson Construction Company, and by Halliburton Oil Well Cementing Company. A truck of Halliburton was unable to cross by itself a muddy portion of the lease to reach the well site, and was towed by a caterpillar tractor of Johnson which was driven by one of its employees. After so traversing the muddy stretch, the Halliburton employee who was driving the truck got out and disconnected the tow chain between the two vehicles. However, before he could withdraw from between them, the Johnson tractor moved back against the Halliburton truck and pinned him against it injuring him severely.

The insurance carrier for the tractor owner, Johnson, was Industrial Indemnity Company, and it undertook to defend the action brought by the injured Halliburton employee against Johnson. This suit was filed on October 1, 1963, and on April 15, 1965, Industrial and Johnson gave notice to Halliburton and to its insurance carrier, Continental Casualty Company, that coverage was claimed for Johnson under Continental's policy issued to Halliburton. Continental refused to defend under this demand and Industrial settled the suit for its insured. Industrial also paid the subrogation claim of Halliburton for the workmen's compensation paid by it to its employee, the injured driver.

This action between the two insurance carriers was thereafter commenced to determine whether or not Continental's policy issued to Halliburton covering its truck also extended to cover Johnson for the accident. The trial court held that the policy did cover Johnson since it was "using" the Halliburton truck within the meaning of the policy, and that the Halliburton employee did not come within the policy exclusions relating to employees. The court then prorated the loss under the "other insurance" clauses. Both parties have taken this appeal.

The first issue considered is whether Johnson was "using" the Halliburton truck at the time of the accident. The term "using" appears in Continental's automobile policy naming Halliburton as the insured wherein the word "insured" is defined. The policy there states that the "insured" includes any person "while using" an owned automobile with the permission of the named insured. Thus was Johnson "using" the truck of Halliburton to so become an insured? As mentioned above, the trial court found that under the law of Oklahoma it was so "using" it through its employee, the tractor operator, and was thereby an insured.

There are few authorities on the meaning of the word "using" in such circumstances. Continental Casualty Company in its brief states that it has found but one case "involving identical facts." This is a Kansas case, Esfeld Trucking, Inc. v. Metropolitan Insurance Co., 193 Kan. 7, 392 P.2d 107 (1964). There the court held that the pulling of the truck which struck the named insured's employee was not a "use" of the truck within the meaning of the policy issued to cover the truck. We are also cited to Wiebel v. American Farmers Mutual Insurance Co., 1 Storey 151, 140 A.2d 712 (1958), a Delaware case, which was concerned with an accident involving a car being pushed by another. As to Oklahoma authorities, we have Hugh Breeding Transport, Inc. v. American Fidelity & Casualty Co., 175 Okl. 508, 54 P.2d 156 (1936). There however the insured truck was being carried on another, but uninsured, truck of the same owner. The owner sued the insurance carrier of the truck being hauled, and the court held there could be no coverage. Also in Oklahoma Farm Bureau Mutual Insurance Co. v. Mouse, 268 P.2d 886 (1953), the Oklahoma court considered a case where the insured equipment being hauled in a truck struck an overpass or bridge and held there was no coverage. These appear to be the closest Oklahoma authorities on the issue, but it is apparent that they are of...