Nationwide Mutual Insurance Co. v. Schilansky

• Decision Date: 29 December 1961
• Docket Number: No. 2869.,2869.
• Parties: NATIONWIDE MUTUAL INSURANCE COMPANY, a corporation, Appellant, v. Alan G. SCHILANSKY, Appellee.
• Court: D.C. Court of Appeals

176 A.2d 786

NATIONWIDE MUTUAL INSURANCE COMPANY, a corporation, Appellant, v. Alan G. SCHILANSKY, Appellee.

No. 2869.

Municipal Court of Appeals for the District of Columbia.

Argued November 27, 1961.

Decided December 29, 1961.

William T. Clague, Washington, D. C., for appellant.

George J. Goldsborough, Jr., Charles P. Hovis, Washington, D. C., also entered an appearance for appellee.

Before HOOD and QUINN, Associate Judges, and CAYTON (Chief Judge, Retired) sitting by designation under Code § 11-776(b).

CAYTON, Acting Judge.

This was a suit under a Medical Payments clause of an automobile insurance Plaintiff claimed for medical expenses flowing from an injury sustained while operating the insured automobile with the permission of his brother, to whom the policy had been issued. The insurance company defended on the ground that certain exclusionary language in the policy barred recovery. The case was tried on stipulated facts and judgment was for plaintiff.

It was stipulated that plaintiff sustained his injuries while operating the automobile with the consent of his brother, the policyholder. It was also stipulated:

"That plaintiff was, on March 10, 1960, an employee of the Potomac Electric Power Company and was in the scope of said employment when the accident aforementioned occurred. That the employer did not require that this employee use a private vehicle in his employment. No reimbursement was made to plaintiff by reason of his furnishing an automobile; he was reimbursed only in an amount equivalent to the public transportation fare, regardless of the mode of transportation used."

and also:

"That Potomac Electric Power Company did not have express permission of the policyholder nor his agent (plaintiff herein) for the use of said vehicle."

The amount to which plaintiff would he entitled was also stipulated.

The clause (D) on which the action was based provides Medical Payments coverage to any person using the automobile "with permission of the Policyholder." This is one of five different and separate types of "Insuring Agreements" in the policy (the others being Comprehensive, Collision, Liability, and Comprehensive Family Liability). Each type of coverage is described in a separately titled section, and the persons covered are listed. Elsewhere in the policy there is a list of exclusions which apply to some types but not to others. The insurance company contends that two other provisions of the policy, read together, operate to exclude plaintiff from coverage.

The first provision, appearing in the "Liability" section of the policy, Coverage C, reads:

"Those entitled to protection under these Coverages C(1) and C(2) [the property damage and bodily injury clauses] are * * * (c) any person or organization legally responsible for the use of the described automobile, provided the actual use was with the permission of the Policyholder. * *"

Another provision, in a later section titled "Exclusions," provides that there shall be no protection afforded to "any employee of the person entitled to protection hereunder, while engaged in the employment of such person. * * *"

The insurance company argues that Potomac Electric Power Company was legally responsible for any tort committed by the plaintiff and that the loan of the car was, by implication, to that company for the use of plaintiff, and hence that company was "the person entitled to protection," and that plaintiff as its employee falls within the exclusionary language above recited.

This contention must fail. The fact that plaintiff was at the time he sustained his injury working for Potomac Electric Power Company was, in a legal sense, mere happenstance, or...