Pray v. Leibfarth, 946.

• Decision Date: 31 July 1952
• Docket Number: No. 946.,946.
• Citation: 106 F. Supp. 613
• Parties: PRAY v. LEIBFARTH et al.
• Court: U.S. District Court — Western District of Michigan

106 F. Supp. 613

PRAY v. LEIBFARTH et al.

No. 946.

United States District Court E. D. Michigan, N. D.

July 31, 1952.

Patterson & Patterson, Bay City, Mich., for plaintiff.

Leroy G. Vandeveer, Detroit, Mich., Clark & Henry, Bay City, Mich., for defendants.

PICARD, District Judge.

On June 13, 1951, Floyd J. Pray received judgment of $27,000 against the Estates of Hubert A. Leibfarth and, his son, Hubert T. Leibfarth, Jr., as the result of an accident, which happened while the son was driving his father's automobile, a Cadillac, insured by another company and that insurance money paid and applied on the judgment.

This writ of garnishment is against defendant Travelers Indemnity Company to collect from it as the insurer of Hubert T. Leibfarth, Jr.'s Pontiac automobile, which policy insured the owner of the Pontiac car for any judgment obtained against him for public liability not only while he was driving the Pontiac but while he was driving "any other automobile" but subject to certain exceptions found in Article V, subdivision (b) (1) of that policy as follows:

"(b) This insuring agreement does not apply:

"(1) to any automobile owned by, hired as part of a frequent use of hired automobiles by, or furnished for regular use to the named insured or a member of his household other than a private chauffeur or domestic servant of the named insured or spouse."

The facts show that when the son was discharged from the service in 1946 he lived at his father's house, went to college for three years, returned home and worked at his father's jewelry store, had a room in his father's home at the time of the accident in October 1950, paid no room or board but which latter fact was considered in his pay for services in the jewelry store. In addition the son sometimes purchased groceries, but the father owned the home and all the furniture in his son's room, except a victrola. While the father, mother and son each had his and her own car, there was no arrangement by which one could drive the other's car although they sometimes did so by permission of the owner.

Conclusions of Law

The question in this case is whether the son was covered by the "extended insurance" which he purchased with his Pontiac policy or did he come under one of the exceptions enumerated in V, (b) (1) above?

It is agreed between counsel that the underlying principle of interpretation of all policies of insurance which are prepared and issued by insuring companies, shall in case of ambiguity be interpreted most favorably to the insured, and if it is possible to interpret any clause or part of an insuring policy in different ways it must be interpreted in the way most favorable to the insured. General Digest, Insurance; Farm Bureau Mut. Automobile Ins. Co. v. Violano, 2 Cir., 123 F.2d 692.

We have examined the above provision V(b) (1) several times and find it to be very ambiguous. It is an unusual, confusing selection and arrangement of words and phrases. For this reason we cannot agree entirely with the conclusions reached in Aler v. Travelers Indemnity Company, D. C., 92 F.Supp. 620, 622, on this identical policy. Although that court may have properly interpreted the intention of the parties, it is a question of this contract as written and not simply what the insurance company intended if you can't reconcile the intent with the words used. After all this is a contract and it is not alone the intent of the company that controls. On what did the parties' minds meet? With that thought we have sought to analyze the above sub-paragraph.

It reads:

"(b) This insuring agreement does not apply: (1) to any automobile owned by".

Owned by whom?

We have searched the rest of the clause carefully but cannot find the answer. The sentence is not sufficiently punctuated. The court in Aler v. Travelers Indemnity Company, supra, says that this means

"owned by `a member of his household'".

Admitting that such might have been the intention of the insurance company still you must add words or at least punctuation to the paragraph in order to make it read as the Aler case says it does. The fact that you must rewrite the sentence in order to make it complete is evidence of itself that the paragraph is ambiguous. And you cannot logically arrive at the above conclusion unless you put a comma after the words "`the named insured'".

But this alone would not be entirely fatal. There is something more important, to-wit, the fact that the insured was herein buying "extra insurance." He was protecting himself beyond an accident happening while driving his Pontiac because subparagraph (a) of V provides that the policy

"applies with respect to any other automobile" (Italics ours.)

the assured might be driving at the time of any accident, subject to the exceptions enumerated in sub-paragraph (b). So if the words

"to any automobile owned by"

"owned by a member of his household"

as stated in Aler v. Travelers Indemnity Company, supra, without the modification provided in the policy itself,

"`furnished for regular use'"

then it not only deprives the insurer of public liability insurance on any other car he might own — which is fair and was probably...