Lackey v. Virginia Sur. Co.

• Decision Date: 28 April 1969
• Citation: 209 Va. 713,167 S.E.2d 131
• Court: Virginia Supreme Court
• Parties: D. M. LACKEY v. VIRGINIA SURETY COMPANY, Incorporated.

Page 131

167 S.E.2d 131

209 Va. 713

D. M. LACKEY v. VIRGINIA SURETY COMPANY, Incorporated.

Supreme Court of Appeals of Virginia.

April 28, 1969.

Michael W. Moncure, III, Richmond (Moncure & Cabell, Richmond, on brief), for plaintiff in error.

F. Byron Parker, Richmond (F. Byron Parker, Jr., Richmond, on brief), for defendant in error.

Before EGGLESTON, C.J., and BUCHANAN, SNEAD, I'ANSON, CARRICO, GORDON and HARRISON, JJ.

BUCHANAN, Justice.

D. M. Lackey, plaintiff, filed this action against Virginia Surety Company, Incorporated, defendant, to collect from defendant under its insurance policy a judgment for $4,216.98 with interest and costs which Lackey had recovered against the administrator of James Edward Thomas. The court below found in favor of the defendant, and plaintiff was granted a writ of error.

Counsel for the parties have stipulated that the facts and issues are substantially as follows:

On December 7, 1958, a vehicle owned by the plaintiff Lackey was damaged in a collision on U.S. Route 1, in Caroline county, Virginia, when it was struck by a vehicle operated by James Edward Thomas, who was killed in the collision. Lackey also owned the vehicle being operated by Thomas, who was an employee of Golden Gift, Incorporated.

Lackey instituted suit in Caroline county against the administrator of Thomas for damage to the vehicle struck by Thomas,* and on September 24, 1964, Lackey recovered a judgment against the administrator of Thomas for said sum of $4,216.98 and costs. The administrator's petition for writ of error to that judgment was refused by this court on March 3, 1965. Execution on the judgment was issued later and return of no property found was made.

At the time of the collision between the two vehicles, Virginia Surety Company, Incorporated, defendant herein, had in force and effect its automobile liability policy No. 63957, in which D. M. Lackey and Golden Gift, Incorporated, were the 'nmaed insured'. The vehicle Thomas was driving had been leased by Lackey to Golden Gift, Incorporated, and Thomas was driving it with the permission of Golden Gift. The other vehicle involved in the accident had also been leased by Lackey to Golden Gift.

Under the heading 'INSURING AGREEMENTS' in said automobile liability policy was this paragraph:

'Coverage B--Property Damage Liability: To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the ownership, maintenance or use of the automobile.'

Under the heading 'EXCLUSIONS' was this provision:

'This policy does not apply:

'(f) under coverage B, to injury to or destruction of property owned or transported by the insured, or property rented to or in charge of the insured other than a residence of private garage injured or destroyed by a private passenger automobile covered by this policy;'

The stipulation states that the first issue involved is whether this action is barred by the statute of limitations, but this question is not argued and apparently has been abandoned.

The second (and only remaining) issue involved is stated to be whether the language contained in subsection (f) as above 'excludes coverage to James Edward Thomas, deceased, as a result of the accident on December 7, 1958.'

This issue requires that it be first determined whether Thomas was an insured under the terms of the policy. The property injured, for which the judgment against the estate of Thomas was granted, was not, in the language of Exclusion (f), 'owned or transported by' Thomas, or 'rented to or in charge of' Thomas. The word 'insured' is defined in the policy as follows:

'III. Definition of Insured: (a) With respect to the insurance for * * * property damage liability the unqualified word 'insured' includes the named insured * * * and also includes any person while using the automobile * * * provided the actual use of the automobile is by the named insured or such spouse or with the permission of either. * * *'

And said policy also contains this provision:

'Severability of Interests--Coverages A and B: The term 'the insured' is used severally and not collectively, but the inclusion herein of more than one insured shall not operate to increase the limits of the company's liability.'

Defendant's insurance contract was issued to D. M. Lackey and Golden Gift, Incorporated, and stated their address to be 121 Washington Avenue, DeLand, Florida. It was countersigned by the authorized representative of the company in DeLand, Florida. In its brief filed in this court in opposition to the granting of an appeal, defendant stated that since the contract was written and delivered in Florida, the Florida law 'on the date of the judgment,' September 24, 1964, would be the applicable law.

We may accept that assertion with the qualification that the applicable Florida law was not determined by Florida's Supreme Court until in January, 1967, in the case of Shelby Mutual Insurance Company v. Schuitema, 193 So.2d 435. In that case the Supreme Court of Florida stated:

'The rule of the District Court of Appeal, Third District, in Liberty Mutual Insurance Company v. Imperial Casualty and Indemnity Co., 168 So.2d 688, collides directly with the decision here...