Pollard v. Safeco Ins. Co.
| Decision Date | 20 July 1963 |
| Citation | 376 S.W.2d 730,52 Tenn.App. 583 |
| Parties | James W. POLLARD v. SAFECO INSURANCE COMPANY et al. |
| Court | Tennessee Court of Appeals |
Richard Stair, Knoxville, for plaintiff in error Pollard.
Hodges, Doughty & Carson, Knoxville, for Safeco Ins. Co.
Lewis C. Woolf and Robert S. Young, Jr., Knoxville, for defendant in error State Auto. Inc. Co.
Andrew Johnson and Erma G. Greenwood, Knoxville, for defendants in error Mrs. Patsy Keifer and James Keifer.
This case involves the question of public liability coverage on a Ford automobile involved in an accident, August 8, 1960. On that date and for a number of years theretofore, James W. Pollard owned and operated a parking garage in Knoxville. On the morning of that date one of his regular customers, Miss Judy Towle, 20 years of age, drove the Ford car in question into the garage and requested that Pollard repair a punctured tire in the trunk of the car. Pollard had no facilities for making tire repairs and while driving the car a distance of about 10 blocks to a tire repair shop for the purpose of having the tire repaired he struck and injured Mrs. Patsy Keifer, one of the defendants in error in this case.
Mrs. Keifer and her husband thereafter sued Pollard, Miss Towle and Miss Towle's mother, Mrs. Hamilton, who because of the minority of the daughter, held the legal title to the car. Pollard thereupon requested defendant in error, Safeco Insurance Company, in which he held a policy covering his Cadillac automobile to defend the Keifer's actions on the theory that the care he was driving was covered as 'a non-owned automobile'. Defendant in error, State Automobile Mutual Insurance Company, had issued a public liability policy on the Ford in the name of Mrs. Hamilton. It was also requested to assume the defense of these actions on the theory that Pollard was driving the Ford with the consent of its insured and was therefore an additional insured. Both companies denied coverage and the present suit was filed by Safeco for a declaratory judgment as to its liability. Pollard thereupon filed an answer to the petition of Safeco and also a cross action against State Automobile Mutual Insurance Company seeking a declaration that his operation of the car was with the permission of its insured and that he was, therefore, an additional insured under its policy.
The trial court determined that Pollard did not have the consent of the named insured, Mrs. Hamilton, as required by the State Automobile policy and that, under the circumstances, he was operating the Ford in connection with his parking garage. Based upon the latter finding the Court concluded that Pollard's operation of the Ford car was not covered by Safeco's policy upon his privately owned Cadillac.
From the action of the Court in holding both companies exempt from liability, Pollard has appealed and assigned errors. We consider first the liability of Safeco.
After providing, with respect to a non-owned automobile, that the persons insured under the policy should include the named insured and certain other persons, the Safeco policy defines 'automobile business' as including storing or parking automobiles. Then follows the exclusionary clause here involved which reads:
'Exclusions: This policy does not apply under the Liability Section:
'* * * (f) to a non-owned automobile (1) in an automobile business by the insured or (2) in any other business of the insured except a utility automobile not used for wholesale or retail delivery purposes or a private passenger automobile operated or occupied by the named insured or by his provate chauffeur or domestic servant, or a trailer used therewith.'
Since Pollard admittedly was in the automobile business as defined by the policy, it will be seen that Safeco's liability turns on whether, at the time of the accident, the Ford was being used in that business. The trial court determined as a fact that it was being so used and, therefore, that its use falls within the above quoted exclusionary clause of Safeco's policy. We can not say the evidence preponderates against that finding.
Mr. Pollard testified that it was his practice on occasions to take cars of his customers out to have them greased or tires changed and did not repudiate a statement made after the accident that he often did favors of this kind for his customers. He admitted that if Miss Towle had not parked the Ford at his place of business he would not have been driving it when the accident occurred. We think it must be said that services of this kind rendered to business customers are incident to the business and it follows that while the car was being operated for that purpose it was being used for a purpose excluded by the policy.
Exclusionary clauses like the one here involved have been held reasonable because of the increased hazard growing out of the use of non-owned cars by such establishments while in their legal custody. Anno. 47 A.L.R.2d 556. They have been frequently applied under circumstances not unlike those presented in this case. Anno. 47 A.L.R.2d 558 et seq.; Insurance Law and Practice, Appleman, Vol. 7, Section 4372; 5A Am.Jur. 103, Automobile Insurance, Section 102.
For the reasons indicated the assignment complaining of the action of the Court in relieving Safeco of liability must be overruled.
Some further development of the facts is required in the consideration of the liability of State Automobile Mutual Insurance Company.
The proof shows without dispute that the insured Ford was bought by Miss Towle but because of her minority and the necessity that the deferred payment be financed through a local bank title to the car was taken in the name of her mother, Mrs. Hamilton, with whom she was living as a member of the Hamilton family. Miss Towle, according to Mrs. Hamilton's testimony, was listed with the insurance company as the driver of the car.
All of the foregoing circumstances including the actual ownership of the car were fully revealed to the Bank which was authorized to procure the insurance. There is no evidence, however, that the Bank transmitted this information to the issuing agent of State Automobile Mutual Insurance Company. Mrs. Hamilton is the named insured in the policy. It contains no reference to Miss Towle although, as stated, Miss Towle was listed as the driver.
Mrs. Hamilton had no responsibility for parking, repairing or operating costs. She knew that it was being regularly parked at the Pollard garage while Miss Towle was at her place of employment nearby. She also knew on the morning of the accident that be repaired. She did not know where the be repaired. She did not know where the work would be done or that Pollard would drive the car for that purpose or be otherwise involved in repairing the tire.
The policy provide public liability coverage to 'any person using such automobile, provided the actual use thereof is with the permission of the named insured.'
We do not appear to have a case involving the same or similar policy provision where the ownership of the car and its use were analogous to the present case.
Because the Company, so far as appears, was not apprised of the fact that the car was actually owned by Miss Towle, and that, except in name only she was the insured, Mrs. Hamilton must be regarded as the 'named insured' and Miss Towle a permittee within the sense and meaning of that term as judicially used in cases from this and other jurisdictions.
In American Automobile Insurance Co. v. Jones, 163 Tenn. 605, 45 S.W.2d 52, the owner who was also the insured expressly instructed the permittee not to allow anyone else to drive. In violation of that instruction the bailee permitted a third person to drive and while being so operated the car was involved in an accident. It was held that, under such circumstances, the driver was not an additional insured. This is the general rule followed by the great majority of the cases where the original...
To continue reading
Request your trial
-
Gillen v. Globe Indemnity Company
...1964); Allstate Insurance Company v. Fidelity & Casualty Company, 73 N.J.Super. 407, 180 A.2d 168 (1962); Pollard v. Safeco Insurance Company, 52 Tenn.App. 583, 376 S.W.2d 730 (1963); Brooks v. Delta Fire & Casualty Company, 82 So.2d 55 (La.App., However, none of the above factors which mig......
-
Royal Indemnity Company v. Clingan, 16538.
...Teague v. Tate, 213 Tenn. 269, 375 S.W.2d 840; American Automobile Ins. v. Jones, 163 Tenn. 605, 45 S.W.2d 52; Pollard v. Safeco Ins. Co., 52 Tenn.App. 583, 376 S.W.2d 730; Carr v. American Universal Ins. Co., 341 F.2d 220 (C.A.6). Also see other authorities to the same effect cited in the ......
-
Industrial Indem. Co. v. U.S. Fidelity & Guaranty Companies
...the car at the time of the accident with the permission, either express of implied, of a named insured. Pollard v. Safeco Ins. Co., 52 Tenn.App. 583, 376 S.W.2d 730 (1963); Foote v. Western Cas. & Surety Co., Under this court's decision in Butterfield v. Western Cas. & Surety Co., 83 Idaho ......
-
Indiana Lumbermen's Mut. Ins. Co. v. Hartford Acc. & Indem. Co.
...73 N.J.Super. 407, 180 A.2d 168, 181 A.2d 783; Hanover Ins. Co. v. Miesmer, 42 Misc.2d 881, 249 N.Y.S.2d 87; Pollard v. Safeco Ins. Co. (1963), 52 Tenn.App. 583, 376 S.W.2d 730; Garland v. Audubon Ins. Co., La.App., 119 So.2d 530; Smith v. Insurance Co. of State of Pennsylvania, La.App., 16......