Northwestern Mut. Ins. Co. v. Haglund, 23966
| Decision Date | 01 February 1965 |
| Docket Number | No. 23966,23966 |
| Citation | 387 S.W.2d 230 |
| Parties | NORTHWESTERN MUTUAL INSURANCE COMPANY, Plaintiff-Respondent, v. A. H. HAGLUND, Defendant-Third-Party Plaintiff, v. LUMBERMENS MUTUAL CASUALTY COMPANY, Third-Party Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Richard P. Sprinkle, Kansas City, for appellant.
Paul H. Niewald, Kansas City, for respondent.
An automobile belonging to one Irl B. Wasson, Jr., and insured against collision by plaintiff Northwestern Mutual Insurance Company, was damaged by collision when driven by defendant A. H. Haglund with Wasson's consent. In accordance with the terms of its policy Northwestern paid Wasson the sum of $858.56 for his loss and damage. Under subrogation rights Northwestern sued Haglund for the damage to Wasson's automobile. Holding a policy of liability insurance issued by third party defendant Lumbermens Mutual Insurance Company, Haglund gave due notice of the suit to that insurer. However, Lumbermens denied coverage and refused to defend the action. Thereafter Haglund sued Lumbermens as a third party defendant to recover any sums for which he might be adjudged liable to Northwestern, together with a reasonable attorney's fee and the statutory penalty for Lumbermens' alleged vexatious refusal to defend him. Trial to the court upon an agreed statement of facts resulted in a judgment that plaintiff Northwestern recover of defendant third party Haglund the sum of $858.50 and that he in turn recover of the third party defendant Lumbermens Mutual Casualty Company the sum of the 'original' judgment against him ($858.50), and the further sum of $500.00 as attorneys' fees. Defendant Haglund filed no appeal but Lumbermens has appealed as third party defendant.
In a single point the appealing third party defendant (Lumbermens) contends the trial court erred in rendering judgment that plaintiff Northwestern recover from defendant Haglund the sum paid its named assured for collision damage and also erred in rendering judgment over in favor of Haglund against Lumbermens for the amount of the 'original' judgment and for attorneys' fees and a statutory penalty.
Appellant's complaint of the judgment in Northwestern's favor against Haglund is grounded on the asserted legal premise (which is supported by some substantial authority), theat an insurance company can not sue under subrogation rights secured from the named insured after payment of a loss arising from a collision and recover in turn from the person who was operating the automobile with the owner's permission, and who thereby became an additional insured under the policy's terms. 1 We will not determine this question or disturb the judgment in Northwestern's favor against Haglund inasmuch as (1) Haglund makes no complaint by appealing and consequently has not invoked our review of the judgment against him; (2) as will later appear, appellant Lumbermens has suffered no aggrievement by that action of the court, and (3) all appeal issues will be fully resolved by our determination of the appeal complaints directed against the resulting judgment over against appellant in favor of Haglund.
It is contended by Lumbermens that the judgment against it is in error because the coverage of its liability policy issued to Haglund does not extend to include liability for the particular risk of loss asserted in this case, or to impose upon it the duty to defend the suit brought against Haglund by Northwestern. In resolving these issues, we look to the insurance contract entered into by the parties and consider it in connection with nature and circumstances of the loss in controversy.
The pertinent provisions of the Lumbermens policy are here noted. In Part 1, entitled 'Liability' the company agrees (in part) 'to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of: * * * B. injury to or destruction of property, including loss of use thereof, hereinafter called 'property damage'; arising out of the ownership, maintenance or use of the owned automobile or any nonowned automobile, and the company shall defend any suit alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; * * *.' Exclusion (i) of the policy provides that it does not apply, under Part I (Liability), 'to injury to or destruction of (1) property owned or transported by the insured or (2) property rented to or in charge of the insured other than a residence or private garage'.
It is a well established rule that, 'Except to the extent that statutes or public policy may control, an insurance company may insert as many exemption clauses in its liability policy as it deems proper or necessary, and liability cannot be fixed on the company for injuries due to risks or causes which have been excepted unless it has waived or is estopped to set up such exception'. 45 C.J.S. Insurance Sec. 834, page 906.
We consider Exclusion (i) to be a clearly expressed and unambiguous exemption clause which specifically excludes the insurer from any liability for damage occasioned to property (other than the excepted residence or private garage) while it is 'in charge of the insured'. Under the agreed and admitted facts of the case, Haglund had sole control and custody of the automobile at the time of the collision which damaged it. Thus the 'property' involved was 'in charge of the insured', and is not included in the contract of insurance as a subject of liability risk. Consequently there is no contractual basis for rendition of the judgment over against Lumbermens.
We are supported in this view by the Missouri case, Arditi v. Massachusetts Bonding & Insurance Company, Mo.App., 315 S.W.2d 736, where the Travelers Insurance Company, as a crossclaiming party, sought recovery against Massachusetts under a liability policy. In denying a recovery by Travelers the Supreme Court wrote as follows: 'The Massachusetts' policy likewise excluded liability for this loss, excluding injury to property 'in charge of or transported by the insured;' and the damaged tractor was at the time 'in...
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