Nationwide Mut. Ins. Co. v. Schaver
| Decision Date | 08 February 1973 |
| Docket Number | No. 161,161 |
| Citation | 268 Md. 102,299 A.2d 788 |
| Parties | NATIONWIDE MUTUAL INSURANCE COMPANY v. Walter SCHAVER, Adm'r of the Estate of Edwin J. Schaver. |
| Court | Maryland Court of Appeals |
Hugh A. McMullen, Cumberland (William H. Geppert and Geppert & McMullen, Cumberland, on the brief), for appellant.
Raymond G. Valle, Sp. Asst. Atty. Gen. of Maryland, Glen Burnie, and Gorman E. Getty, Jr., Cumberland (Edward J. Ryan and Carscaden, Gilchrist & Getty, Cumberland, on the brief), for appellee.
Argued before MURPHY, C. J., and BARNES, McWILLIAMS, SINGLEY, SMITH and DIGGES, JJ.
The only question necessary for us to decide for the disposition of this appeal is whether the vehicle purchased by the insured of the appellant, Nationwide Mutual Insurance Company (Nationwide), was a 'land motor vehicle' on May 8, 1969, or did not become such until May 20 or 23, 1969, when it became operable as a land motor vehicle.
The facts were, for the most part, the subject of a stipulation between the parties in the lower court and are not in dispute.
Nationwide issued an automobile insurance policy to its insured, John Eugene Grimes, on a 1969 Camaro xxxxxxxxxx owned by the insured. The coverage of the policy applied to all persons using the described automobile with the permission of the named insured and would pay on behalf of such user such sums of money he should become obligated to pay as damages because of accidental personal injuries or property damage arising out of such use up to $10,000. In Section IV, page 4 of the policy appears the following provision:
'Coverages-shall also apply to:
'(b) a four wheel and motor vehicle, ownership of which is acquired by the Policyholder first named in the Declarations, and if an individual, his spouse residing in the same household, which has not, except as a replacement, been the subject of such ownership for more than 30 days next preceding the occurrence.'
The policy also contains the following:
'For purposes of this policy 'land motor vehicle' does not include a vehicle operated on rails or crawler-treads nor, except under Coverages C(1), C(2), D(1) and D(2), while actually upon public roads, does it include vehicles not subject to motor vehicle registration or vehicles maintained for use exclusively on the insured premises or vehicles designed for use principally off public roads.'
On May 8, 1969, the insured, Grimes, purchased the body or shell of a 1957 Chevrolet, two-door sedan from Waneta G. Chiccarella, paying $50.00 for it. The seller then executed the assignment of the Certificate of Title to the purchaser. At that time, Mr. Grimes testified, the 1957 Chevrolet was only a body. It did not contain a motor, a transmission, interior wiring, seats or tires. He towed the body from Flintstone, Maryland, to Ridgely, West Virginia, on May 8, 1969; and on the same day, he executed and made oath to an application for a Certificate of Title for the 1957 Chevrolet to the Department of Motor Vehicles of West Virginia, inserting the correct serial number of the 1957, Chevrolet in the application. This application was subsequently sent in and a West Virginia Certificate of Title and automobile tags were issued on May 26, 1969. He stated that he worked on the Chevrolet from May 8 to May 20, 1969, when he had completed the wiring of the vehicle, the installation of a transmission, seats, etc., and had installed an engine. On May 20, 1969, he said, the Chevrolet was able to be operated on the highway. He further testified that on May 23, 1969, he telephoned Ellsworth Lambert, an agent of Nationwide, and was informed by the agent that the policy he had on his 1969 Camaro xxxxxxxxxx would also cover any other motor vehicles he had acquired for a period of 30 days after he had acquired it.
On June 18, 1969, the named insured Grimes loaned the Chevrolet to his halfbrother, Richard H. Edwards, Jr., who resided in the same household with his father and his step-brother, the insured Grimes. Mr. Edwards drove through a stop sign at the intersection of Mary Street and Ella Avenue in Cumberland and severely injured Edwin J. Schaver, then driving a motorcycle. Mr. Schaver's injuries eventually resulted in his death.
The appellee, Walter Schaver, administrator of the decedent's estate, and the decedent's parents filed an action against both Edwards and Grimes in the Circuit Court for Allegany County and obtained judgments in the total amount of $17,500.00. Demand was duly made upon Nationwide to make payments on these judgments under its policy. This demand was rejected by Nationwide and an action was instituted in the Circuit Court for Allegany County by the Administrator and the parents of the deceased against Nationwide and the Unsatisfied Claim and Judgment Fund Board (the Fund) to recover the amounts of the judgments.
The case was tried before the lower court (Naughton, J.), without a jury. The lower court first held in favor of Nationwide and ruled that the Fund was solely responsible for the payment of the judgments. Subsequently, however, upon hearing a motion for reargument, the lower court found that Nationwide was the insurer of Edwards at the time of the accident and entered a judgment directing Nationwide to pay the plaintiffs below the sum of $10,000, the policy limit. This appeal was timely taken by Nationwide from this judgment. We have concluded that this judgment was correctly entered and it will be affirmed.
In our opinion, the words used in the policy 'four wheel land motor vehicle' are clear and unambiguous. It is necessary to have a motor included in a vehicle to constitute it as a 'motor vehicle.' The purpose of the language, already set forth, establishing the coverage is to insure against losses resulting from vehicles which are capable of using highways in their operation and not some shell or body which cannot be operated on the highways. The definition of 'Land Motor Vehicle,' already set forth in full, is an exclusionary provision indicating what the term does not include in certain instances, rather than the usual type of definition. In short, that 'definition' is of no help to us in the present case.
Our opinion in regard to the clear meaning of the term 'Land Motor Vehicle' used in Section VI, page 4 of the policy, is consistent with the definitions of 'Motor Vehicle' in both the Maryland and West Virginia Codes. In the Maryland Code (1970 Repl.Vol.) Art. 66 1/2, § 1-149, 'Motor Vehicle' is defined:
'Motion vehicle means a vehicle which is self-propelled or propelled by electric power obtained from overhead trolley wires, but not operated upon rails.' (Emphasis supplied)
The provision of the West Virginia Code (1961, 1965 Cum. Supp.) is quite similar to the Maryland definition. Section 1721(65) (17A-1-1)-'Definitions,' subsection (b) of the West Virginia Code defines 'Motor Vehicle' as follows:
'Every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails.'
(Emphasis supplied)
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