Kunze v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 01 May 1972
• Docket Number: Nos. 8806,8807,s. 8806
• Citation: 197 N.W.2d 685
• Parties: Marlin KUNZE, Plaintiff and Respondent, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant and Appellant, and American Family Mutual Insurance Company, Defendant and Respondent. Roberta KUNZE, Plaintiff and Respondent, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant and Appellant, and American Family Mutual Insurance Company, Defendant and Respondent. Civ.
• Court: North Dakota Supreme Court

Page 685

197 N.W.2d 685

Marlin KUNZE, Plaintiff and Respondent, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant and Appellant, and American Family Mutual Insurance Company, Defendant and Respondent.

Roberta KUNZE, Plaintiff and Respondent, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant and Appellant, and American Family Mutual Insurance Company, Defendant and Respondent.

Civ. Nos. 8806, 8807.

Supreme Court of North Dakota.

May 1, 1972.

Syllabus by the Court

1. The determination in a particular case of whether the insured was driving a non-owned automobile furnished or available for the frequent or regular use of the insured within the terms of an automobile insurance policy must be controlled by the factual situation presented.

2. Having reviewed in the facts in the instant case, we conclude that the trial court was correct in submitting to the jury the issue of whether the vehicle was furnished or available for the frequent or regular use of the insured within the terms of an automobile insurance policy.

3. It was not error for the trial court to instruct the jury in essence that an automobile was not furnished or available for frequent or regular use within the terms of an automobile insurance policy unless at the time of the accident giving rise to the claim the automobile was being used by the person for whom it had been furnished or made available to, for a purpose for which it was frequently or regularly used.

4. Having reviewed the facts in the instant case, we conclude that there was substantial evidence from which the jury could have decided that the vehicle at the time of the accident which gave rise to the claim in the instant case was being used for a special purpose or a purpose other than the purpose for which it had been otherwise furnished or made available for frequent or regular use.

5. For reasons stated in the opinion, we conclude that the trial court did not err in prorating the judgment in the instant case between the two defendant insurance companies on the basis of liability limits.

Wattam, Vogel, Vogel & Peterson, Fargo, for defendant and appellant.

Greenwood, Murtha & Moench, Dickinson, for plaintiffs and respondents.

Pearce, Engebretson, Anderson, Schmidt & Thames, Bismarck, for defendant and respondent.

ERICKSTAD, Judge.

Marlin Kunze and Roberta Kunze, husband and wife, commenced separate actions against Larry D. Stang, as the administrator of the estate of Leon Stang, and Jake W. Gruebele, as the administrator of the estate of Brenda Gruebele, for injuries they suffered in an accident on July 4, 1967, while riding as passengers in the back seat of an automobile driven by Brenda Gruebele and owned by Leon Stang, who at the time of the accident was a passenger in the right front seat.

Marlin obtained a verdict in the sum of $37,000 and Roberta a verdict in the sum of $22,605.52. The judgments which incorporated these verdicts were affirmed by the majority of this court in Kunze v. Stang, 191 N.W.2d 526 (N.D.1971).

Following remittitur of the records in the two cases, Marlin and Roberta separately brought actions against the defendant State Farm Mutual Automobile Insurance Company and American Family Mutual Insurance Company, in which they asserted that the insurance companies were obligated to pay the judgments because they had previously issued automobile policies to Jake Gruebele, under the terms of which coverage was extended to his daughter Brenda Gruebele.

The insurance companies each filed answers denying liability.

State Farm's specific defense is 'that the vehicle involved in the accident was neither described in said policy of insurance nor could it qualify as a non-owned automobile since it was furnished or available for the frequent or regular use of the alleged driver, Brenda Gruebele.'

American Family's defense, although stated more generaly, was to the same effect in that it denied liability, on the ground that the alleged losses described in the plaintiffs' complaints were not covered by its policy of insurance.

American Family also asked that if it should be determined obligated under the terms of its policy, any sum awarded to the plaintiffs be assessed pro rata between it and State Farm.

The facts are that Jake Gruebele and his wife, Erna, had three automobile insurance policies in effect at the time of the accident on July 4, 1967. The automobile owned by Leon Stang and driven by Brenda on the fateful evening was a 1966 Caprice Chevrolet. Leon had no insurance on this vehicle.

The policy with American Family described a 1956 Chevrolet automobile and provided bodily-injury liability of $15,000 for each person and $30,000 for each occurrence.

They had two policies with State Farm. One policy described a 1960 four-door Chevrolet and provided bodily-injury liability of $50,000 for each person and $100,000 for each accident. The other policy described a 1967 1/2-ton Chevrolet pickup truck and provided bodily-injury liability of $10,000 for each person and $300,000 for each accident.

Under State Farm's policies coverage is extended to non-owned automobiles which are not furnished or available for the frequent or regular use of the named insured, his spouse, or any relative of either residing in the same household. American Family's provision relative to this matter did not contain the word 'frequent'.

The jury brought in a special verdict to the effect that at the time and place of the accident on July 4, 1967, Leon Stang's car was not available to or used by Brenda Gruebele as part of a regular or frequent use.

State Farm appeals to this court from a judgment dated November 12, 1971, holding the insurance companies liable under their policies of insurance.

At the close of the plaintiffs' case, State Farm moved for a dismissal of the actions under Rule 41(b) of the North Dakota Rules of Civil Procedure, upon the ground that the plaintiffs failed to show that the automobile involved in the accident, owned by Leon Stang and driven by Brenda Gruebele, was not available or furnished for the regular or frequent use of Brenda Gruebele. This motion was denied. At the close of all the evidence, when both parties had rested, State Farm moved for a directed verdict on the grounds earlier stated in its motion to dismiss. This motion, made in March of 1971, preceded the change in Rule 50(a), North Dakota Rules of Civil Procedure, which became effective on August 1, 1971. This motion was also denied.

State Farm contends on appeal that the facts clearly demonstrate that Leon Stang's automobile was furnished or available for the frequent or regular use of Brenda Gruebele prior to the accident, and that accordingly Brenda was not covered by her father's insurance policies with State Farm at the time of the accident, and that therefore the complaints should be dismissed as a matter of law.

The facts are that from the latter part of March to July 4, 1967, Brenda Gruebele and Leon Stang were dating regularly and that Brenda spent almost every weekend during that interim visiting Leon at his farm home about fourteen miles southwest of Regent, North Dakota. Brenda lived during the week with her parents on their farm near Burt, North Dakota, which is twenty-five miles from Mott, North Dakota. Each day during the week Brenda drove from her parents' farm to Mott, where she was employed by Frances Senn in her beauty parlor. On a number of occasions in the interim from the latter part of March to July 4, 1967, Brenda used Leon's 1966 Caprice Chevrolet automobile to return to her home from her weekend visit at the Stang farm, and used it during the week to drive to and from her employment in Mott, and used it at the end of the week to drive from her parental home to the Stang farm for the weekend visit with Leon.

The last time Mr. and Mrs. Gruebele saw Brenda was on the Friday preceding Tuesday, July 4, 1967. Brenda spent that weekend and Monday night, July 3, at the Stang farm. On July 4, Brenda and Leon met the plaintiffs at a gathering near Regent, North Dakota. Toward the evening of July 4, 1967, the plaintiffs and Brenda Gruebele and Leon Stang decided to drive to Mott, North Dakota, to purchase hamburgers. When the group left for Mott, Leon was driving the Caprice. Two or three miles before the accident, Brenda took over the driving.

Mr. Jake Gruebele, Brenda's father, testified that Brenda used Leon's automobile a quarter of the time or more from the end of March to July 4, 1967.

Leon's brother, Larry Stang, who farmed with Leon but lived across the road approximately four or five hundred yards from the house where Leon lived, testified that he knew that Leon let Brenda use the Caprice on two occasions.

Mrs. Lorraine Stang, Leon's mother, with whom he lived testified that Brenda used the car on three or four occasions during the interim.

Mrs. Donna Rustan, Leon's sister, who from January to July 4, 1967, worked during the week for an aunt who was recuperating from surgery on a farm about four miles from her mother's farm, and who spent the weekends at her mother's farm, testified that she saw Brenda drive Leon's car four or five times during that period of time. She said that Leon took Brenda home 'practically always'. She admitted that Brenda sometimes stayed at the Stang home over Sunday evening, so that she (Donna) sometimes had to leave for work at her aunt's farm before Brenda left for her home.

Roberta Kunze testified that she saw Brenda drive Leon's car only once before the accident.

Mrs. Frances Senn, who operated the beauty parlor in Mott where Brenda was employed, testified that she never saw Brenda drive Leon's car at any time.

Mr. McCarty, an investigator for State Farm, testified that he took a tape recording of an interview with Mrs. Senn in her beauty parlor in Mott on July 21, 1967, at which time she said that Brenda used Leon's car 'quite a bit'. Mrs. Senn, however, denied that she had ever made such a...