Kansas Farm Bureau Ins. Co. v. Cool

• Decision Date: 13 June 1970
• Docket Number: No. 45723,45723
• Citation: 471 P.2d 352,205 Kan. 567
• Parties: KANSAS FARM BUREAU INSURANCE COMPANY, Inc., Appellee, v. Harold L. COOL, Appellant.
• Court: Kansas Supreme Court

Page 352

471 P.2d 352

205 Kan. 567

KANSAS FARM BUREAU INSURANCE COMPANY, Inc., Appellee, v. Harold L. COOL, Appellant.

No. 45723.

Supreme Court of Kansas.

June 13, 1970.

Syllabus by the Court

1. A policy of automobile liability insurance coverning uninsured motorists is interpreted and held to exclude a 'dune buggy' which was being operated on the sand dunes of the Little Sahara State Park in Oklahoma where an accident occurred injuring the insured, because it is not 'an automobile' within the meaning of the uninsured motorists provisions of the insurance policy.

2. Although ambiguities in the wording of an insurance contract are to be construed in favor of the insured, this rule of construction has no application whatever to language that is clear in its meaning. Unless a contrary intention is shown, words used in an insurance contract are to be given the natural and ordinary meaning they convey to the ordinary mind. The language of a policy of insurance, like any other contract, must, if possible, be construed in such manner as to give effect to the intention of the parties at the time it was made as expressed therein.

3. In determining the intention of the parties under the foregoing rule the test is not what the insurer intended the words of the policy to mean, but what a reasonable person in the position of the insured would have understood them to mean.

4. As a generic word, 'automobile' is broad enough to include all forms of self-propelling vehicles. However, the word is to be defined in a particular case from its association in the context and by considering the object or purpose of the instrument in which it is used. The manner in which a vehicle is used, as well as its construction, is an important factor in determining its character.

5. A policy of automobile liability insurance covering uninsured motorists is interpreted as providing uninsured motorists coverage where the uninsured automobile is a motor vehicle that is designed for or used on a public roadway, as more particularly stated in the opinion.

6. A policy of automobile liability insurance covering uninsured motorists which excludes from the term 'uninsured automobile' a 'farm type tractor or equipment designed for use principally off public roads, except while actually upon public roads,' is interpreted to exclude a dune buggy in which the insured was injured by accident, while riding over sand dunes, under the phrase 'equipment designed for use principally off public roads.'

Bradley Post, of Michaud & Cranmer, Wichita, argued the cause, and Orval L. Fisher and Gerald L. Michaud, Wichita, were with him on the brief for appellant.

Robert L. Howard, of Foulston, Siefkin, Powers & Eberhardt, Wichita, argued the cause, and Robert C. Foulston, Wichita, was with him on the brief for appellee.

SCHROEDER, Justice.

The ultimate question to be resolved by this appeal is whether a motor vehicle described as a 'dune buggy' is 'an automobile' within the meaning of the uninsured motorists provisions of an insurance policy.

The case arises out of a written contract of insurance between the partis and involves primarily questions of law which stem from facts that are not basically in dispute.

On the 2nd day of February, 1966, the Farm Bureau Insurance Company, Inc. (plaintiff-appellee) issued its family combination automobile policy to Harold L. Cool (defendant-appellant). The policy was in effect in April 1, 1967, when the accident in question occurred. The policy was written on two automobiles owned by the appellant, a 1959 Cadillac 4-door hardtop and a 1954 Ford one-half ton pickup. Uninsured motorists coverage was provided on each automobile, the premium being $3.60 on the Cadillac, but only $2.70 on the Ford pickup. The policy contained an 'other insurance' clause applicable to the uninsured motorists coverages in the event an insured was injured while occupying a non-owned automobile.

On the 1st day of April, 1967, Cool was injured in an accident while riding as a fee-paying passenger in a vehicle referred to as a 'dune buggy', which was being driven across the sand dunes of the Little Sahara State Park near Waynoka, Oklahoma. Cool had paid fifty cents to the owner of the dune buggy, Elden Shirley, to take him for a ride over the sand dunes. The ride was described by Cool as 'an amusement-type ride' and also as a sightseeing ride. The ride on which the accident occurred was Cool's third trip over the sand dunes on the day in question. Various witnesses, who also operated a dune buggy for hire in the park, described the ride as 'both a sight-seeing tour and a thrill ride,' and as 'an amusement or thrill ride.' Shirley stated one could hardly keep from having a thrill, that the ride was only for personal amusement.

Cool made a claim under the uninsured motorists provisions of his policy against Farm Bureau, and before Farm Bureau denied the claim Cool made demand for arbitration.

Farm Bureau then instituted the instant action for declaratory judgment to determine the coverage of the policy and to enjoin Cool from proceeding with arbitration. The matter was then tried in Sedgwick County before the Honorable John A. Potucek, an assigned judge, on April 23, 1968.

Elden Shirley had purchased the dune buggy from his brother-in-law, Howard Young of Waynoka, Oklahoma, less than thirty days prior to the accident. Young had previously purchased it in the spring of 1966 from Howard Dannar of Topeka, Kansas, who had bought it from its original owner and builder, Dean Johnson of Waynoka, Oklahoma.

The deposition testimony of Young and Shirley, admitted into evidence, and the testimony of Howard Dannar established the construction, use and inherent characteristics of the dune buggy upon which the trial court based its findings and conclusions. The basic chassis was taken from an old three-quarter ton truck, the motor was an old Chevrolet motor, and the transmission was from a Chevrolet truck. It was open and unenclosed and the doors, sides and top had been removed. It was not equipped with a windshield; it had no headlights or taillights; it had no horn; it had no fenders on the front and tractor fenders had been mounted on the rear; there was no properly functioning speedometer or gas gauge; there was no hood or cowling over the motor; the front and rear axles had been moved forward about forty inches in order to put all the weight on the back wheels so the front wheels would not bury in the sand; a tractor gas tank had been mounted in front of the radiator; a heavy bar or piece of railroad rail about eight feet long and weighing ten to fifteen pounds per foot had been welded across the back where the frame had been cut off; large 1600 16 airplane bomber low pressure (5-7 psi) balloon tires had been placed on the back wheels; the springs had been removed between the rear axle and the frame; and a sign on the rear of the dune buggy stated, 'Not responsible for accident.'

Howard Dannar testified he knew of his own personal knowledge that the dune buggy was not designed for, nor was it principally used for operation upon the highways, but rather was designed and built for use on the sand dunes at the park.

Elden Shirley, the owner and operator at the time of the accident, testified he considered it to be an off-the-road vehicle, and that no one would want to drive it on the highway because it was actually 'no highway vehicle.'

The dune buggy was kept on the Waynoka, Oklahoma, farm of Howard Young, the person from whom it had been purchased by Elden Shirley less than thirty days prior to the accident. Young was permitted to use it any time he wanted. He used it principally off the road as a utility vehicle around his farm. He did not use it for a highway vehicle. He had used it to pull tractors, build fence, hunt, pull a harrow and a drill, and feed cows with it.

On the day of the accident the dune buggy was not driven to the Little Sahara State Park by Young or Shirley, but was towed behind Young's pickup. It had been driven on the public roads only occasionally for short distances, and all the rest of the time it was driven in the sand dunes, on the farm or in the fields.

There is no motor vehicle certificate of title to the dune buggy in question. All transfers of ownership from its original owner, Dean Johnson, to its present owner, Elden Shirley, have been made without an assignment or the transfer of a title certificate of any kind.

The dune buggy was never licensed or registered as an automobile or highway vehicle with the state of Oklahoma by any of its owners. Howard Dannar had tried to obtain a license but was told there was no way of tagging the vehicle.

The dune buggy was not equipped as required by the statutes of Oklahoma for use on the highways of the state.

Various types of dune buggies were operated in the Little Sahara State Park by a number of person. In order to operate a dune buggy for hire lawfully in the park, a license or permit was required by the Oklahoma State Industrial and Development Council. To obtain such permit an applicant was required to carry special public liability insurance on the dune buggy while being operated in the park, and to pay ten percent of the fees collected to the state of Oklahoma. Elden Shirley, who was operating the dune buggy in question at the time of the accident, had not obtained a permit from the state of Oklahoma and did not carry a policy of insurance specifically written on his dune buggy. Howard Young, the prior owner, had inquired about insuring this particular dune buggy, but was told by his insurance agent that it could not be insured. Other dune buggy owners testified that a special policy with an extra high premium was required to insure a dune buggy, and that liability insurance alone would cost from $175 to $250 per year.

The trial court held the uninsured motorists provisions of the policy of insurance issued by Farm Bureau did not apply to cover the...