Marquez v. Dairyland Mut. Ins. Co.
Decision Date | 31 July 1967 |
Docket Number | No. 8336,8336 |
Citation | 430 P.2d 766,1967 NMSC 179,78 N.M. 269 |
Parties | Joe V. MARQUEZ, Defendant and Third-Party Plaintiff-Appellee, v. DAIRYLAND MUTUAL INSURANCE COMPANY, a Wisconsin Corporation, Third-Party Defendant-Appellant. |
Court | New Mexico Supreme Court |
OMAN, Judge, Court of Appeals.
This cause is before us on appeal from a judgment in favor of the third party plaintiff, hereinafter called plaintiff, upon a claim against the third party defendant, hereinafter called defendant, under a policy of automobile insurance issued by defendant to plaintiff.
The policy of insurance, a copy of which was attached to plaintiff's third party complaint as an exhibit thereto and as a part thereof, covered a 1956 Chevrolet automobile. The policy period, as expressly provided by the policy, became effective as of 12:01 A.M. on January 14, 1965 and continued to April 14, 1965.
In plaintiff's opening statement, made at the separate trial on the issues tendered by the third party complaint and answer thereto, it was stated:
As part of defendant's opening statement the following was stated and stipulated to:
The trial court found that the policy was issued by defendant and that '* * * said insurance policy became effective at 12:01 A.M. January 14, 1965, and provided for liability coverage until April 14, 1965.'
The court also found:
The court concluded:
Although defendant has asserted four separate points relied upon for reversal, and the parties have presented arguments in support of their respective positions regarding the correctness of some of the court's findings and conclusions other than those above-quoted, we are of the opinion that this appeal turns entirely upon one question, to wit: Was the Ford automobile, which had been purchased and was owned by plaintiff prior to the effective date of the policy, covered under the policy as a newly acquired automobile pursuant to the provisions of insuring agreement IV(a)(4), as concluded by the trial court? This particular insuring agreement, insofar as here applicable, is as follows:
'(a) Automobile. Except with respect to Coverage C--2 and where state to the contrary, the word 'Automobile' means:
'(4) Newly Acquired Automobile--an automobile, ownership of which is acquired by the named Insured * * * if (i) it replaces an automobile owned by (the named insured) and covered by this policy. * * *'
Plaintiff is the named insured. The policy coverages with which we are here involved are those other than C--2. Defendant was notified of the accident on January 15, 1965, and was notified of plaintiff's ownership of the Ford automobile shortly after the accident and within thirty days of the acquisition thereof by plaintiff.
We have never had occasion to pass upon the question of whether or not a newly acquired automobile clause, such as that here involved, embraces an automobile acquired by an insured before the effective date of the policy, and which said newly acquired automobile replaces an automobile covered by the policy. Here there is no question but what the Chevrolet was replaced by the Ford, and that the Ford was acquired by the plaintiff before the effective date of the policy.
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