Keithan v. Massachusetts Bonding & Ins. Co.

• Decision Date: 03 February 1970
• Citation: 159 Conn. 128,267 A.2d 660
• Court: Connecticut Supreme Court
• Parties: Thomas KEITHAN v. MASSACHUSETTS BONDING AND INSURANCE COMPANY et al.

Page 660

267 A.2d 660

159 Conn. 128

Thomas KEITHAN v. MASSACHUSETTS BONDING AND INSURANCE COMPANY et al.

Supreme Court of Connecticut.

Feb. 3, 1970.

David M. Reilly, Jr., New Haven, for appellant (defendant General Accident Fire and Life Assurance Corporation, Ltd.).

Roger J. Frechette, New Haven, for appellee-appellant (plaintiff).

Kevin T. Gormley, New Haven, for appellee (named defendant).

Before KING, C.J., and ALCORN, HOUSE, COTTER and THIM, JJ.

HOUSE, Associate Justice.

This case is a sequel to Werner v. Keitham, 151 Conn. 673, 202 A.2d 150. Despite the variance in the spelling of the name, the plaintiff in this action was the named defendant in that case. The corporate defendants in this case are two insurance companies which had issued automobile liability policies. Massachusetts Bonding and Insurance Company, hereinafter referred to as Mass. Bonding, was the insurer for Porto Transport, Inc., a trucking company and common carrier hereinafter referred to as Porto. General Accident Fire and Life Assurance Corporation, Ltd., hereinafter referred to as General Accident, was the insurer for County Line Rental Company, hereinafter referred to as County Line, which was engaged in the business of renting motor vehicles to Porto.

There is no dispute about the general facts giving rise to this appeal although they are not uncomplicated. County Line by a lease agreement leased several tractors to Porto to be used in interstate commerce. Under the terms of the lease it was County Line's obligation to maintain the leased tractors in good operating condition, to repair them and to furnish a substitute tractor within a reasonable time if any tractor leased to Porto became disabled. The lease provided that Porto was to notify County Line of mechanical trouble with any tractor in service and to refrain from operating such tractor until permission was given by County Line. The lease further provided that, in the event of a tractor breakdown on the road requiring emergency repairs at distant points, Porto should immediately notify County Line for authorization to have emergency repairs made. County Line agreed to furnish a substitute unit within a reasonable time for any equipment unit temporarily out of service. County Line maintained a repair shop in Wallingford for the purpose of maintaining and repairing the tractors, and Keithan was employed by County Line as a night mechanic in that repair shop.

During the night of August 29, or early morning of August 30, 1957, one of the tractors leased to Porto broke down on the road in Stamford. Keithan, the only employee of County Line on duty in its repair shop in Wallingford, was notified, and he drove a substitute tractor to the scene of the breakdown, where he made the substitution and then drove the 'crippled' tractor back toward Wallingford for the purpose of repairing it. En route he was involved in an accident with an automobile operated by Joseph Werner. Werner subsequently sued Keithan, County Line and Porto. His complaint alleged that Keithan was the employee of both County Line and Porto and expressly alleged that Keithan was operating the tractor with the permission of Porto. General Accident defended the suit on behalf of both County Line and Keithan, although its defense of Keithan was under a reservation since it claimed that its policy did not cover liability on the part of Keithan. Mass. Bonding defended on behalf of Porto but despite Keithan's request refused to defend Keithan or to give any explanation for its refusal. The trial in the action brought by Werner resulted in a verdict in his favor in the sum of $33,812.19 against both Keithan and County Line and in favor of Porto. On appeal to this court the judgment on the verdict was affirmed. Werner v. Keitham, 151 Conn. 673, 202 A.2d 150.

In the present case, the trial court took judicial notice of the entire file in Werner's case, including the briefs of the parties on appeal and included in its finding the following excerpt from the opinion of this court in that case (p. 676, 202 A.2d 151): 'County Line employed Keitham as a night mechanic and paid his wages. County Line owned a number of tractors, including the one involved in this collision, which it leased to Porto. It was Keitham's duty to keep these tractors 'moving' or 'rolling,' to repair them when they become disabled, and to substitute one in good condition for any which might become disabled. On the morning in question, he made such a substitution in Stamford and was returning to County Line's repair shop in Wallingford in the 'crippled' vehicle for the purpose of repairing it when the collision occurred. On these facts, the trial court reached the obvious and correct conclusion that, under a fair and reasonable interpretation of the contract between County Line and Porto, Keitham was in the course of performing his duties for his employer, County Line, at the time of the collision. He was not at that time engaged in the performance of a duty for Porto, as its agent.'

Keithan made both General Accident and Mass. Bonding parties to this action and claimed by way of relief (a) $50,000 damages against Mass. Bonding; (b) a declaratory judgment determining whether he is an insured within the terms of the policy of insurance issued by Mass. Bonding to Porto; and (c) a declaratory judgment determining whether he is an insured within the terms of the policy of insurance issued by General Accident to County Line.

The court made a lengthy finding of facts from which it concluded that Keithan was using the disabled tractor with the permission of County Line and as its servant and agent and was therefore an insured under the omnibus clause of the policy issued by General Accident. It further concluded that he was not excluded under an endorsement to that policy, that he was not covered under the Mass. Bonding policy issued to Porto, that Mass. Bonding did not breach any contractual obligation to Keithan, and that County Line through its insurer, General Accident, had paid the original judgment in favor of Werner and that Keithan has paid nothing on that judgment and is not required to do so in the future. On the basis of these conclusions the court rendered judgment in favor of Mass. Bonding and by way of a declaratory judgment adjudged that Keithan was an insured within the terms of the insurance policy issued by General Accident to County Line but that he was not an insured within the terms of the policy issued by Mass. Bonding to Porto. From this judgment both General Accident and Keithan have taken appeals.

Although the appellants have asserted a total of twenty-seven assignments of error, they are primarily directed to the conclusions reached by the court from the pleadings and its interpretation of the lease between County Line and Porto and of the two insurance policies. None of the three parties filed any appendix to their briefs containing any evidence in support of an attack on or a defense of the court's finding of fact. See Practice Book § 715. It is also pertinent to note that the mere fact that a plaintiff sees fit to institute an action for a declaratory judgment in no way operates to alter or shift the ordinary rules as to the burden of proof in civil actions, and a plaintiff may not avoid his burden of proof by choosing the procedure of such an action. Hardware Mutual Casualty Co. v. Premo, 153 Conn. 465, 471-472, 217 A.2d 698; Holt v. Wissinger, 145 Conn. 106, 109, 139 A.2d 353.

In the pleadings each of the defendant insurance companies expressly denied Keithan's allegation that the coverage afforded by its policy applied to Keithan in regard to the accident giving rise to Werner's suit. Each also denied Keithan's allegation that at the time of the collision Keithan was operating the tractor with the consent and permission of their respective insureds, Porto and County Line. These allegations by Keithan were, accordingly, in issue, and the burden of proof as to them remained with him.

The first briefed contention of General Accident is that Keithan was excluded from coverage under its policy because of a specially pleaded typewritten exclusionary endorsement to its policy which specified that coverage 'shall not apply to any interests other than the named insured' in connection with the operation of vehicles while rented or leased to others. Thus, it is General Accident's contention that even though Keithan was an employee of County Line acting in the performance of his duties for his employer at the time of the collision and even though the policy in which, by endorsement, County Line was a named insured included as an additional insured any employee of the named insured while he was acting in the scope of his duties as such, nevertheless, since Keithan was not a 'named insured' and because the vehicle was under lease to others, he was excluded from the policy's protection.

We find no merit to this contention of General Accident and note that none of the cases cited in support of it involved corporate 'named insureds.' The cases all concerned coverage under policies issued to a particular individual or individuals rather than to a corporation. As the trial court noted in its finding, County Line, the named insured, as a corporate entity could only act through its officers, agents and employees, such as Keithan, and none of them was excluded by the endorsement. Furthermore, as the court found, the tractor which Keithan was operating was out of service under the lease; Keithan, in returning it for repairs, was acting in the 'interest' of County Line, whose contractual duty it was to keep it in repair; and in so doing Keithan was performing an operation necessary or incidental to the ownership, maintenance or use of County Line's premises as a repair shop and was thus additionally covered under division 1 of the 'Definition of Hazards' contained in the General Accident policy. 'A person operating an...