Maryland Cas. Co. v. Insurance Co. of North America

• Decision Date: 13 February 1968
• Docket Number: No. 90,90
• Citation: 238 A.2d 88,248 Md. 704
• Parties: MARYLAND CASUALTY COMPANY et al. v. INSURANCE COMPANY OF NORTH AMERICA.
• Court: Maryland Court of Appeals

Page 704

248 Md. 704

238 A.2d 88

MARYLAND CASUALTY COMPANY et al. v. INSURANCE COMPANY OF NORTH AMERICA.

No. 90.

Court of Appeals of Maryland.

Feb. 13, 1968.

Frank P. Flury, Riverdale, for appellants.

William H. Clarke, Bethesda, for appellee.

Before HAMMOND, C. J., and HORNEY, MARBURY, BARNES, FINAN and SINGLEY, JJ.

MARBURY, Judge.

On December 24, 1963, Richard G. Whaley was employed by the Kennedy-Veale Stables, a partnership consisting of Harriet T. Veale, Tinkham Veale II, and Wilma P. Kennedy. He was what is known as a 'hot walker' and his duties consisted of walking the horses belonging to his employer, when it was necessary, and assisting the groom in caring for them. Whaley's job did not require him to actually be on duty twenty-four hours a day but he was expected to be at the stables with the horses whenever he was needed, for example, if a horse became sick or if there was a fire. In addition, Whaley slept in a dormitory near the stables and was expected to act as a watchman in case of emergencies that might arise at any time of the day or night. When there were lulls in the work he was free to do what he wished with his free time.

On the date in question the Stables for which Whaley worked had its horses at the Bowie Race Track training them for the next meet that was to begin in a few weeks. Also in the employ of the Stables were William Weingart, an exercise boy, who occasionally rode as a professional jockey, and Frank Clendening, who was employed as a groom and in the absence of Mrs. Kennedy, the regular trainer, was in charge of the training operations at Bowie and in such capacity gave orders and directed the work of the other two employees.

On the morning of the 24th the three men arose early, had a light breakfast at the race track cafeteria, fed and exercised the horses, and at about 10:30 decided to have coffee at a restaurant about half a mile from the track. After cashing Whaley's pay check at the cafeteria they left the grounds in an automobile owned by the Stables, which they were authorized to use, and when they had traveled about 100 yards from the main gate they collided with a Pennsylvania Railroad train. Clendening and Weingart subsequently died as a result of the accident and Whaley was seriously injured.

Whaley, co-appellant here and co-defendant below, filed a claim for workmen's compensation benefits under Code (1957), Article 101, for the injuries sustained in the accident, alleging, inter alia, that the accident arose out of and in the course of his employment. Maryland Casualty Company, the other co-appellant here and co-defendant below, was the insurance carrier for the Stables and at the hearing before the Workmen's Compensation Commission defended on the ground that the accident did not occur in the course of Whaley's employment. After a hearing the Commission ruled that the accident arose out of and in the course of Whaley's employment. Maryland Casualty Company then filed a petition for a rehearing before the Commission but before the rehearing could be held, Whaley and Maryland Casualty reached a settlement whereby Whaley released Maryland Casualty and received $15,000. This settlement agreement, which contained a release to the employer and compensation insurer, in accordance with law was submitted to and approved by the Commission on April 12, 1966.

The present case was instituted by the Insurance Company of North America (INA), the appellee here, to have a declaratory judgment rendered to the effect that it would not be obligated to investigate, defend, or indemnify any law suits by Whaley against the owner of the car in which he was riding or against the estate of Clendening, the operator of the vehicle at the time of the accident. INA claims that it is relieved from liability by exclusionary clauses in the policy that excluded from coverage by the policy:

'(d) under coverage A (Bodily Injury Liability), to bodily injury to or sickness, disease or death of any employee of the insured arising out of and in the course of (1) domestic employment by the insured, if benefits therefor are in whole or in part either payable or required to be provided under any workmen's compensation law, or (2) other employment by the insured;

'(e) under coverage A (Bodily Injury Liability), to any obligation for which the insured or any carrier as his insurer may be held liable under any workmen's compensation, unemployment compensation or disability benefits law, or under any similar law;

'(g) under * * * coverage C (Automobile Medical Payments) to bodily injury to or sickness, disease or death of any employee of the named insured or spouse arising out of and in the course of (1) domestic employment by the named insured or spouse, if benefits therefor are in whole or in part either payable or required to be provided under any workmen's compensation law, or (2) other employment by the named insured or spouse;'

By stipulation of counsel in the lower court, if Whaley was injured in the course of his employment then INA would be declared not liable on the policy.

Following a hearing in the court below, Judge Powers, after considering the testimony before him, found that Whaley was an employee of the Stables, that he was on call at all times but was allowed to attend to his own business during slack periods in his work, that on the day of the accident he was in his work clothes, that he intended to return to the track after the coffee break, that he left the track in company of his supervisor, and that...