Nelson v. Iowa Mut. Ins. Co.
| Decision Date | 30 October 1973 |
| Docket Number | No. 12474,12474 |
| Citation | 515 P.2d 362,163 Mont. 82 |
| Parties | H. J. NELSON, Executor of the Estate of Nora Rennie, Deceased, Plaintiff and Respondent, v. IOWA MUTUAL INSURANCE COMPANY, a corporation, Defendant and Appellant. |
| Court | Montana Supreme Court |
Leonard H. Langen, argued, Glasgow, for defendant and appellant.
Habedank, Cumming & Best, Sidney, Otto T. Habedank, argued, Sidney, for plaintiff and respondent.
Defendant, Iowa Mutual Insurance Company, appeals from a judgment for plaintiff, H. J. Nelson, Executor of the estate of Nora Rennie, deceased, rendered by the district court of the seventh judicial district, Richland County, in an action involving the interpretation of medical pay provisions of a family automobile insurance policy. The facts were stipulated.
On a night in November 1970, near Sidney, Montana, Nora Rennie was driving her car on a country road. The road was icy and a high wind was producing a ground blizzard. The temperature was eight degrees below zero. The car slipped off the road, coming to rest on a steep bank with the car's right side against a fence.
She got out of the car, slipped, and slid underneath the car. She regained her feet, moved to the rear of the car and fell again. She proceeded south behind the car and followed along the fence which was constructed of both barbed wire and sheep fence. For a short distance to the south of the rear of her automobile, Nora Rennie left a blood trial in the snow which may have come from a deep laceration on her left leg. In addition, she left blood trails on the fence which she was handling with her bloody hands. She followed the fence for a distance of 269 feet, after crossing and recrossing the fence. She fell into an irrigation ditch at which time she may have fractured or dislocated her ankle. She then began crawling back to her car and was found about 143 feet behind the car. Death was caused by frostbite and exposure as a consequence of the injury to the ankle, blood loss, shock and cold temperatures.
The insurance coverage applicable here was:
'To pay all reasonable expenses * * * including funeral services.
'To or for the named insured and each relative who sustains bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury', caused by accident,
'(a) while occupying the owned automobile. * * *
Under the policy the executor made a claim for funeral expenses of $1,625, which was refused. Suit was instituted.
The trial judge concluded that the language of the policy was ambiguous; was written by the defendant; and must be strictly construed against the defendant who is responsible for the ambiguity. Recovery of the $1,625 was allowed.
Defendant specifies error on the part of the trial court in making its findings of fact, conclusions of law and judgment. The thrust of defendant's contention is that there is no ambiguity in the language of the policy and it does not cover the situation as disclosed by the facts stipulated.
There is no question but that there was an accident when the car slipped off the road. There is no question but that there was some bodily injury. As to when the bodily injury occurred, the agreed statement of facts merely conjectures. The immediate cause of death was exposure and frostbite.
Defendant contends the language of the policy is clear and specifically provides that coverage is provided only when there is bodily injury while occupying the car or in entering the car or alighting from the car, and since there is no proof of bodily injury while occupying, entering or alighting from the vehicle there is no coverage.
It is plaintiff's position that the language of the policy is ambiguous in that it may be read just as reasonably that the 'bodily injury' does not have to occur while 'occupying', 'entering', or 'alighting from' the car, but only that the 'accident' occur within such...
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