Lane v. Hartford Fire Insurance Company

• Decision Date: 28 March 1972
• Docket Number: No. 71 C 300(3).,71 C 300(3).
• Parties: Vera LANE, Plaintiff, v. The HARTFORD FIRE INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of Missouri

343 F. Supp. 79

Vera LANE, Plaintiff, v. The HARTFORD FIRE INSURANCE COMPANY, Defendant.

No. 71 C 300(3).

United States District Court, E. D. Missouri, E. D.

March 28, 1972.

Hyman G. Stein, Stein & Seigel, St. Louis, Mo., for plaintiff.

Joseph M. Kortenhof, and Ed E. Murphy, Jr., Murphy, Kortenhof & Ely, St. Louis, Mo., for defendant.

MEMORANDUM OPINION AND ORDER

WEBSTER, District Judge.

Plaintiff brought this action against defendant Hartford Fire Insurance Company, insurer of LeRoy McDonald, against whom plaintiff recovered a judgment of $25,000 in the Circuit Court of St. Louis County, Missouri for the wrongful death of her husband Washington Lane. Defendant filed an answer denying liability and asserting that the policy of insurance issued to LeRoy McDonald excluded from coverage the circumstances which gave rise to the judgment in the Circuit Court of St. Louis County. Thereafter, defendant filed a motion for summary judgment. At the hearing on the motion for summary judgment, counsel for both sides conceded that there was no genuine issue as to any material fact, and plaintiff asked the court to enter summary judgment in favor of plaintiff. Thereafter, plaintiff filed a cross-motion for summary judgment by leave of court. An affidavit of LeRoy Edward McDonald was filed in support of plaintiff's cross-motion, to which defense counsel took exception. The court thereupon set the case down for trial and denied both defendant's motion for summary judgment and plaintiff's cross-motion for summary judgment.

It was stipulated at the trial that all documents filed as exhibits in support of the respective motions for summary judgment, together with the entire file of the Circuit Court case, would be received in evidence, and that the case would be submitted on such evidence and the testimony of witnesses at the trial. The matter was tried to the court.

FACTS

On December 6, 1955, Washington Lane was fatally injured when his truck on which he was performing repairs rolled across his body as he lay beneath it. The accident occurred in the rear of the Dick Wildeisen Service Station in Clayton, Missouri. LeRoy Edward McDonald was an employee of the service station at that time and had worked there since 1956. He had known Washington Lane since 1956 "from waiting on him". They had become friends. McDonald had been at Lane's home and Lane had been at his. A few months before the accident, McDonald had worked on Lane's truck at Lane's home without charge. He had never worked on Lane's truck at his own home.

McDonald was a mechanic at the service station. He had had experience in working on trucks. The service station manager permitted regular customers from time to time to work on their automobiles on the blacktop adjacent and in back of the service station. Lane was one of those who had worked on his truck on the premises. The service station did not charge for such courtesy unless its employees actually did work on the vehicle.

On Sunday, December 5th, the day before the accident, McDonald told Lane that he needed a new saddle support for his truck. Early in the morning of December 5th, Lane came into the station for gas and again asked about the truck. Later in the afternoon, he returned and placed his truck in the rear of the station and began to work on it. McDonald testified that if Lane asked him a question about the work he gave an answer. He cannot recall the questions or the answers, but he testified that he did no work on the truck. He further testified that Lane did not ask him to help on the day of the accident and there had been no discussions or understandings the previous day about being paid if Lane brought the truck into the station; that McDonald did none of the maintenance and that neither he nor Wildeisen charged or received any money on account of Lane's activities.

Richard Wildeisen, operator of Dick Wildeisen Service Station, testified that Lane had been a regular customer for many years, and that Lane was a truck hauler. In past years, some small repairs, such as distributor repairs, had been made at the service station, but that the station had performed no major repairs to Lane's equipment. Lane was customarily charged for such services. Wildeisen confirmed McDonald's testimony that no payment had been received for any services on December 5th and that no parts were supplied to Lane on that day.

Norman Lane, brother of Washington Lane, testified that after the accident, McDonald told him that he was supposed to do some work on Washington Lane's truck; that he had told Lane to take up the drive shaft and told him to hit the drive shaft loose on the truck; and that he had told Washington Lane what parts to get for the truck.

It appears to be undisputed that in the course of loosening and removing parts, the emergency braking system became disengaged, causing the truck to roll. No one else was present when the accident occurred, and Lane was not discovered until sometime thereafter.

In the original petition, filed in the Circuit Court of St. Louis County, plaintiff asserted that McDonald was acting as an employee of the service station with respect to the occurrence resulting in the death of Washington Lane. Defendant denied coverage on the basis of this petition. The petition was subsequently amended to delete these allegations and defendant was supplied with current pleadings. As a defendant in the Circuit Court case, McDonald, through his attorney, negotiated an arrangement with plaintiff under which she agreed not to try to collect from McDonald but would look only to his insurer for collection. Thereafter, a judgment of $25,000 was taken by default.

CONCLUSIONS OF LAW

Jurisdiction. This case was properly removed here from the Circuit Court of St. Louis County. Diversity of citizenship and the jurisdictional amount are established and jurisdiction is properly founded under Title 28 U.S.C. § 1332.

The policy of insurance issued by defendant to McDonald, which is the basis for this action, was a conventional homeowners policy insuring LeRoy E. McDonald and Geraldine R. McDonald, his wife, effective November 17, 1965 through November 17, 1968. The policy contained, under Section II, personal liability protection to the extent of $25,000 for each occurrence.

Under the heading "Insuring Agreements" the policy provides:

"The Company Agrees with the Named Insured:

"1. Coverage E—Personal Liability:

"(a) Liability: To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury * * * and shall defend any suit against the Insured alleging such bodily injury * * * and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent * * *."

The defendant bases its defense upon special exclusions contained in the policy which provide that Section II the personal liability section does not apply:

"(A) 1 to any business pursuits of an Insured, except, under Coverages E and F, activities therein which are ordinarily incident to non-business pursuits, * * *

(B) under Coverages E and F, to the ownership, maintenance, operation, use, loading or unloading of 1 automobiles or midget automobiles while away from the premises or the ways immediately adjoining, except under Coverage E with respect to operations by independent contractors for non-business purposes of an Insured not involving automobiles owned or hired by the Insured * * *"

Duty to Defend

We turn to the threshold question: was the insurer obligated to defend in plaintiff's prior action against LeRoy McDonald?

Under Missouri law, the duty of a liability insurer to defend pursuant to its agreement is ordinarily determined by comparing the language of the insurance contract and the allegations of the petition or complaint in the action brought by the person injured or damaged against the insured. Zipkin v. Freeman, 436 S.W.2d 753, 754 (Mo. 1968); Northwestern Mutual Insurance Company v. Haglund, 387 S.W.2d 230, 233 (Mo.App.1965); Aetna Casualty and Surety Company v. Hase, 390 F.2d 151, 153 (8th Cir. 1968). The petition originally filed in plaintiff's earlier action in the Circuit Court of St. Louis County contained the following allegations:

"4. That on or about the 6th day of December, 1965, the said Washington Lane, while on the premises of the defendants at 525 South Hanley Road, St. Louis County, Missouri, was fatally injured when a truck then and there upon the premises of the defendants did fall on, roll upon and strike the said Washington Lane thereby directly causing the aforesaid fatal injuries, of which he died on the 6th day of December, 1965.

5. That said fatal injury and occurrence directly and proximately resulted from the negligence and carelessness of the defendants.

6. That the said defendant Leroy McDonald was, at the time of the occurrence, in the employ of the defendants Standard Oil Division of American Oil Company and Richard Wildeisen Standard Service Station.

7. That by virtue of said occurrence and the negligence and carelessness of the defendants, as aforesaid, a cause of action has accrued to the plaintiff, as widow of said Washington Lane, deceased, to have and recover of defendants damages in the amount of $25,000.00 pursuant to the Statutes of the State of Missouri, in such case made and provided."

An amended petition was subsequently filed which contained the following allegations:

"1. That the defendant Standard Oil Division of American Oil Company is, and was at all times herein mentioned, a corporation duly organized and existing under and by virtue of law with an agent and registered office in the State of Missouri.

2. That the said defendant Leroy McDonald was, at the time of the occurrence described herein, in the employ of the defendants Standard Oil Division of American Oil Company and Richard Wildeisen Standard Service Station and was the

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