Nationwide Mut. Ins. Co. v. Harleysville Mut. Cas. Co.

• Decision Date: 11 June 1962
• Docket Number: No. 5434,5434
• Citation: Nationwide Mut. Ins. Co. v. Harleysville Mut. Cas. Co., 203 Va. 600, 125 S.E.2d 840 (1962)
• Parties: NATIONWIDE MUTUAL INSURANCE COMPANY v. HARLEYSVILLE MUTUAL CASUALTY COMPANY, ET AL. Record
• Court: Virginia Supreme Court

Page 840

125 S.E.2d 840

203 Va. 600

NATIONWIDE MUTUAL INSURANCE COMPANY v. HARLEYSVILLE MUTUAL CASUALTY COMPANY, ET AL.

Record No. 5434.

Supreme Court of Appeals of Virginia

June 11, 1962.

W. Carrington Thompson, for the appellant.

John H. Locke (Gentry, Locke & Rakes, on brief), for appellee, Harleysville Mutual Casualty Company.

No brief or argument for appellees, Ralph Sterrill Vasser, et al.

JUDGE: SPRATLEY

SPRATLEY, J., delivered the opinion of the court.

Elizabeth Dale Pickeral, sixteen years of age, was injured on February 19, 1961, in a non-collision automobile accident. She was a passenger in a 1960 Chevrolet Corvair automobile owned by Margurite C. Dudley and operated by Ralph Sherrill Vasser, an infant. On March 19, 1961, Miss Pickeral, by her father, instituted an action at law in the Corporation Court of Danville against Ralph Vasser to recover damages for her injuries.

At the time of the accident, liability insurance on the Chevrolet Corvair was carried by Mrs. Dudley with the Harleysville Mutual Casualty Company, hereinafter referred to as Harleysville. Liberty Mutual Insurance Company, hereinafter referred to as Liberty, had issued an assigned risk liability insurance policy on a 1952 Chevrolet to Willie Owen Vasser, father of Ralph Vasser. The 1952 Chevrolet was not involved in the accident. Nationwide Mutual Insurance Company, hereinafter referred to as Nationwide, had in force a family combination automobile policy issued by it to M. H. Pickeral, father of Miss Pickeral. Each of these policies carried the uninsured motorist endorsement required by Code, § 38.1-381(b), 1960 Cum. Supp., in the form approved by the State Corporation Commission.

Harleysville and Liberty disclaimed coverage to Ralph Vasser under their respective policies, and advised Vasser they would not defend the common law action of Miss Pickeral.

Harleysville denied that Miss Pickeral was an 'insured' under its policy both in regard to the 'Uninsured Motorist Coverage Act,' as defined in Code, § 38.1-381(c), 1960 Cum. Supp. and in the uninsured motorist endorsement on its policy. Liberty denied that its policy extended coverage to the driver of an automobile other than the insured automobile 'unless the driver thereof was the named insured, or his wife.'

Nationwide was made a party to the cammon law action, and thereafter it instituted this proceeding by filing its petition for a declaratory judgment in the Corporation Court of Danville. Harleysville, Liberty, Ralph Vasser, Miss Pickeral and Mrs. Dudley were made parties defendant. Nationwide asked the court to construe the provisions of the several policies of insurance above mentioned and determine the respective rights and liabilities of the petitioner and the defendants, insofar as insurance coverage for the automobile accident in question was involved.

After a pre-trial conference, Liberty and Mrs. Dudley were dismissed as parties. The remaining defendants waived trial by jury, and expressly agreed that all questions of law and fact were to be submitted to the court for determination and final judgment.

These are the facts disclosed by the pleadings and the evidence:

During the afternoon of February 19, 1961, Ginger Lee Dudley asked her mother for permission to use the Chevrolet Corvair to go to a movie drive-in theater. Mrs. Dudley knew her daughter planned to take Elizabeth Pickeral and another girl with her. Mrs. Dudley gave her daughter permission to drive the automobile; but expressly warned and enjoined her not to let anyone else drive it. Ralph Vasser met Miss Dudley and her friends at the drive-in theater, and after some conversation asked Miss Dudley to permit him to drive the Chevrolet Corvair to the home of a friend. Disregarding the warning and injunction of her mother, Miss Dudley agreed to permit Ralph Vasser to drive the Chevrolet Corvair. Vasser then took over the operation of that car, and with Miss Pickeral and two youths proceeded to drive to North Carolina. During the trip, he lost control of the car on a curve, the car left the highway, ran down an embankment, and Miss Pickeral was injured. Mrs....