Pickens v. Maryland Cas. Co.

• Decision Date: 27 February 1942
• Docket Number: 31298.
• Citation: 2 N.W.2d 593,141 Neb. 105
• Parties: PICKENS v. MARYLAND CASUALTY CO.
• Court: Nebraska Supreme Court

2 N.W.2d 593

141 Neb. 105

PICKENS v. MARYLAND CASUALTY CO.

No. 31298.

Supreme Court of Nebraska

February 27, 1942

Appeal from District Court, Otoe County; Wilson, Judge.

Syllabus by the Court.

1. A contractors' public liability policy, which by its terms does not cover an accident unless it shall occur upon premises owned by or under the control of the assured, or on the public ways immediately adjacent thereto, does not cover an accident which took place more than eight miles from assured's operating location.

2. In construing terms used in a policy of insurance where no ambiguity exists, they will be considered in their usual and ordinary sense.

3. The words "immediately adjacent," used in contractors' public liability policy, construed to mean contiguous or adjoining.

4. A public liability policy insuring automobile accidents upon premises owned by or under the control of the assured, or on the public ways immediately adjacent thereto, is not enlarged as to its coverage provisions by describing the assured's location of operations as "near Plattsmouth, Nebraska."

5. It is essential to an estoppel in pais that there be a false representation or concealment of material facts without the knowledge or means of knowledge of the person alleged to have been misled, made with the intent that it should be acted upon, and actually relied upon by such person to his prejudice. If any of these elements do not exist, an estoppel cannot be applied.

6. A clause in a public liability policy that the insurer will defend suits for personal injuries brought against the insured although they may be wholly groundless, false or fraudulent are generally construed to obligate the insurer to defend only suits upon claims for which it has assumed liability under the policy.

Lloyd E. Peterson and John L. Mattox, both of Nebraska City, for appellant.

Herbert E. Story and John H. Roper, Jr., both of Omaha, for appellee.

Heard before SIMMONS, C. J., and ROSE, PAINE, CARTER, MESSMORE, and YEAGER, JJ.

CARTER Justice.

Plaintiff sues to recover a judgment against the Maryland Casualty Company for the sum of $2,160 to reimburse plaintiff for $2,000 attorney's fees and $160 expenses incurred by him in the defense of a personal injury action, an obligation which plaintiff alleges the defendant company assumed by the issuance of a public liability policy to the plaintiff. The trial court found for the defendant and plaintiff appeals.

The record shows that on September 2, 1938, one Frank Krejci, while operating a truck one-half mile north of the city of Plattsmouth, became involved in an accident with an automobile driven by one George Moore. An action was commenced by Moore against plaintiff and Krejci to recover damages for the resulting injuries. It appears that Krejci had hauled a load of rock from plaintiff's quarry to Ft. Crook, and on his return trip had met with the accident with the Moore car. The quarry was seven miles south and a mile and a half east of the scene of the accident. The evidence shows that the rock was being hauled by Krejci as an independent contractor in a truck owned by his wife and used with her consent. On April 4, 1939, Moore filed his action against plaintiff and Krejci and on May 29, 1939, plaintiff notified defendant that he was tendering the defense of the case to it under the terms of the public liability policy he held with the defendant company. On June 19, 1939, the defendant company refused to assume the defense of the case on plaintiff's behalf for the reason that it involved no liability within the terms of the policy. Plaintiff then employed counsel, who successfully defended his case, and he now seeks to recover from the defendant the attorney's fees and expenses necessarily expended in the defense of the case.

The general insuring agreements of the policy provide in part as follows "This policy does not cover: *** (5) any accident caused directly or indirectly by any automobile vehicle or by any draught or driving animal or other vehicle owned or used by the assured or by any employee of the assured in charge of any such vehicle or animal, unless such accident shall occur upon premises owned by or under the control of the assured, or on the public ways immediately adjacent thereto and provided such premises are specifically described in Item III (a) of the schedule hereof;" Item III (a), referred to in the foregoing provision, is as follows: "The operations and locations covered,-data relative to and analysis of premium,-and special conditions, stipulations, exceptions and limits of liability governing the insurance under this policy,-are as follows: Schedule (a) Location of Operations Near Plattsmouth, Nebraska."

A proper interpretation of the applicable provisions of the policy necessarily requires an understanding of the meaning of the words "upon premises owned by or under the control of the assured, or on the public ways immediately adjacent thereto." Clearly, the accident which was the source of this litigation did not occur upon the premises owned by or under the control of the assured. It took place more than eight miles from the place of defendant's quarrying business on a public highway completely disconnected from plaintiff's place of work. National Optical Co. v. United States Fidelity & Guaranty Co., 77 Colo. 130, 235 P. 343. But it is urged that it was on a public way at a point immediately adjacent to premises owned by or under the control of the assured.

The word "adjacent" ordinarily means "lying near, close or contiguous." Websters New International Dictionary. It does not always import a physical contact with something else, as does the word "adjoining." "But, when qualified by the adverb 'immediately,' it necessarily means 'contiguous' or so close to the other object as to be almost in contact with it." City of Lawrenceburg v. Maryland Casualty Co., 16 Tenn.App. 238, 64 S.W.2d 69, 71. And in discussing the use of the words "immediately adjacent," the court in Long v. London & Lancashire Indemnity Co., 6 Cir., 119 F.2d 628, 630, said:

"We think the words 'immediately adjacent,' as used in the insurance policy under construction, have the same natural significance as the words 'immediately adjoining.' Unless such construction be adopted, the word 'immediately' in the present context would have no practical effect. Its express use must not be disregarded. If the insurance company had intended to cover...