Molzahn v. State Farm Mutual Automobile Insurance Co.

• Decision Date: 20 December 1968
• Docket Number: No. W-3973.,W-3973.
• Citation: 308 F. Supp. 1144
• Parties: Elaine J. MOLZAHN, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — District of Kansas

308 F. Supp. 1144

Elaine J. MOLZAHN, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant.

No. W-3973.

United States District Court D. Kansas.

December 20, 1968.

William H. Stowell, Stowell & Stowell, Phillipsburg, Kan., for plaintiff.

Turner & Balloun, Great Bend, Kan., for defendant.

MEMORANDUM OPINION SUSTAINING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

THEIS, District Judge.

This action arises out of a claim under an insurance policy and is brought by plaintiff, Elaine J. Molzahn, spouse of the decedent, against State Farm Mutual Automobile Insurance Company, defendant. Jurisdiction is based on diversity of citizenship, with an amount in controversy of $10,000.00. The matter is now before this Court on cross motions for summary judgment. The Court finds as a preliminary matter that it has jurisdiction of the parties and the subject matter of the action.

The pleadings reveal that there was in existence on February 14, 1967, an automobile insurance policy between the decedent, Ronald E. Molzahn, and the insurer. The policy insured a 1966 2-door Pontiac, owned by decedent. On that date the decedent, in the course of his employment of delivering dairy products to retail stores, and while driving a three-ton International vehicle owned by his employer, Fair Acres Dairy Farms, Inc., died as a result of injuries sustained in a one-vehicle accident. Thereafter, plaintiff made claim against the defendant, demanding $10,000.00 under the insurance policy; however, this demand was rejected by the defendant.

The insurance policy consists of five different insuring agreements, of which it is conceded by the parties only the fourth is involved here. It is upon that agreement, entitled "Insuring Agreement IV — Automobile Death Indemnity * * *," which the plaintiff seeks to recover the insurance proceeds. The pertinent part of that agreement reads:

"Coverage S.

Division 1 — Death Indemnity. To pay the amount stated as applicable to the insured designated for such coverage in the declarations in event of the death of each insured which shall result directly and independently of all other causes from bodily injury caused by accident and sustained by the insured while occupying or through being struck by an automobile, provided the death shall occur within 90 days of such accident."

"Definitions

The definitions of * * * `Bodily Injury' * * * under Insuring Agreements I and II apply to Insuring Agreement IV.

Bodily Injury — means bodily injury, sickness, or disease including death at any time resulting therefrom. (See Insuring Agreements I and II.)

Commercial Automobile — means any land motor vehicle while used in the insured's business or occupation other than (i) a private passenger automobile, (ii) a school bus or (iii) an owned utility automobile not used for wholesale or retail delivery."

"Exclusions

Insuring Agreement IV does not apply: (a) to bodily injury sustained in the course of his occupation by any person while engaged (1) in duties incident to the operation, loading or unloading of, or as an assistant on, a public or livery conveyance, commercial automobile, ambulance, fire truck * * *"

The death indemnity insurance coverage under that agreement for the decedent as a named insured is $10,000.00.

Defendant, in its answer and briefs before the Court,...