Quesenberry v. Nichols

• Decision Date: 04 March 1968
• Citation: 208 Va. 667,159 S.E.2d 636
• Parties: Harry QUESENBERRY v. Warren Allen NICHOLS and Erie Insurance Exchange.
• Court: Virginia Supreme Court

Page 636

159 S.E.2d 636

208 Va. 667

Harry QUESENBERRY v. Warren Allen NICHOLS and Erie Insurance Exchange.

Supreme Court of Appeals of Virginia.

March 4, 1968.

James C. Turk, Edwin C. Stone, Radford (Dalton, Poff, Turk & Stone, Radford, on brief), for plaintiff in error.

Eugene L. Nuckols, Pulaski, Edward C. Mackie, Baltimore, Md. (Crowell, Deeds & Nuckols, Pulaski, Rollins, Smalkin, Weston & Andrew, Baltimore, Md., on brief), for defendants in error.

Before EGGLESTON, C.J., and BUCHANAN, SNEAD, I'ANSON, CARRICO, GORDON and HARRISON, JJ.

HARRISON, Justice.

This appeal involves the construction of an automobile liability insurance policy issued by Erie Insurance Exchange, hereinafter called Erie, to Warren Allen Nichols, hereinafter called Nichols. Nichols is a resident of Jessup, Maryland, and the policy was written in that state.

Harry Quesenberry obtained a judgment in the Circuit Court of Pulaski County, Virginia, against Nichols for damages sustained in an automobile accident that occurred as a result of the negligent operation by Nichols of a Chevrolet station wagon owned by the Federal Aviation Agency, U.S. Gvernment. Execution on the judgment was returned 'no effects'. Thereafter, on motion of Quesenberry, a summons in garnishment was issued against Erie and Nichols. Erie answered, denying it held any property belonging to Nichols and denying liability under the policy.

After certain preliminary proceedings, the case came on for trial before a jury. At the conclusion of Quesenberry's evidence, the court granted a motion to strike and entered summary judgment in favor of Erie. We granted a writ of error to the judgment.

The assignments of error question the action of the court in striking plaintiff's evidence and entering summary judgment, and in not submitting to the jury the question of coverage afforded under the terms of the policy. Quesenberry asserts the issues involved to be, whether the definition of a 'non-owned automobile', as set out in the policy, is ambiguous and susceptible of more than one interpretation, and whether the automobile driven by Nichols was, as a matter of law, furnished for his regular use.

The policy in question is known as a 'Pioneer Family Automobile Policy'. There is no dispute over its validity, the fact that it was in effect at the time of the accident, and that Erie was authorized to do business in Maryland.

The principal coverage of the policy is the agreement of Erie to pay on behalf of insured (Nichols) all sums which he shall become legally obligated to pay as damages because of bodily injury sustained by any person, or property damage arising out of the ownership, maintenance or use of the owned automobile or a non-owned automobile.

The phrase 'owned automobile' applies to the private automobile of Nichols described in the declarations which constitute a part of the policy.

'Non-owned automobile' is described in the policy as follows:

"(N)on-owned automobile' means an automobile or trailer (a) not owned by, or furnished for the regular use of the named Insured by any government unit or agency; or (b) not owned by any relative, other than a temporary substitute automobile;"

The decision in this case turns upon the construction and application of clause (a) of the above paragraph to the facts of the case. This will determine if Erie is legally obligated to pay the judgment recovered by Quesenberry against Nichols.

Nichols had been in the employ of the Federal Aviation Agency, U.S. Government, for over a year prior to October 5, 1962. He was a member of a crew of men that worked for the FAA. They lived near Baltimore and were based at Alexandria, Virginia. This crew covered four states, moving frequently from one airport to another, usually returning to their homes over weekends. Included in their requipment were four or five government vehicles, ranging from station wagons to large trucks used to transport the men and equipment back and forth from their headquarters in Alexandria to various airfields where their work was performed. The vehicles were used during the work week by the men for transportation to the job site, to hotels and motels in which they stayed, and to restaurants where they ate. Nichols testified that he was away from home on his job approximately 75% Of the time. All members of the crew drove the various vehicles from time to time and the mileage driven each month was considerable. When away from home, it was normal practice for the crew to use one of the government vehicles to go out to eat, for no other transportation was available for this purpose.

The accident with Quesenberry occurred on Friday night, October 5, 1962. Apparently Nichols had not planned to return to his home in Maryland that weekend. In the early evening, Nichols used one of the government vehicles (the station wagon) to go to a local restaurant for dinner. Upon leaving the restaurant, he did not return to the motel but testified he got lost and ended up on a strange road where he had the accident. ¹

Counsel for Quesenberry maintains that the 'non-owned automobile' clause is so ambiguous as to be meaningless; or, in any event, its meaning is in doubt and presents a jury issue. He points to the evidence of five English professors, who testified at length regarding the grammatical construction of the clause. They concluded that it was not a proper sentence and was ambiguous.

Admittedly the sentence is inartfully drawn and punctuated, and if our responsibility here were one of analyzing this sentence from a grammatical standpoint or parsing it, we would be faced with the same difficulties that troubled the English scholars. The court, however, must read the contract as a single document, the meaning of which is gathered from all its associated parts when assembled as the unitary expression of the agreement of the parties. New England Mutual Life Insurance Company of Boston v. Hurst, 174 Md. 596, 199 A. 822 (1938).

In recent years some companies have written policies to cover a 'non-owned automobile' and frequently define it as 'any automobile, other than a temporary substitute automobile, not owned by, hired, or furnished for the regular use of either the named insured or any relative or member of his household'. Annot. 83 A.L.R.2d 926. Other policies obtain the same result of extending the driver's regular insurance to casual driving of cars other than his own without the payment of extra premium, by the use of the 'drive other cars' clause or 'use of other automobiles' clause, such clauses excluding coverage of other automobiles owned, hired, or regularly used by insured or a member of his household. Giokaris v. Kincaid, Mo., 331 S.W.2d 633 (1960). See Annot. 86 A.L.R.2d 937 (1962).

A leading case on 'non-owned automobiles' is Aler v. Travelers Indemnity Co., 92 F.Supp. 620 (D.Md. 1950). It concerned a provision of a policy extending and limiting, by exclusionary provisions, the insured's coverage on his Mercury automobile in his use of "any other automobile, subject to the following provisions * * * (b) This insuring agreement does not apply: (1) to any automobile owned by, hired as a 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 insured was driving his mother-in-law's Plymouth automobile at the time of the accident. The mother-in-law had been a member of the insured's household for a year or more, paying no rent or board, and at the time of the accident was ill and confined to her bed. The insured, his wife and his son had been using both cars when needed. The court, after analyzing the issues involved held that the exclusionary clause was not ambiguous and excepted from coverage the use of any other automobile (1) owned by the insured or a member of his household or (2) furnished for regular use to the insured or a member of his household.

In Commercial Insurance Co. of Newark, N.J. v. Gardner, 233 F.Supp. 884 (E.D.S.C. 1964), the definition of a non-owned automobile in the policy there considered read, "non-owned automobile' means an automobile or trailer not owned by or furnished for the regular use of either the named insured or any relative, other than a temporary substitute automobile.'

The court quoted with approval from the Aler case and found that coverage was excluded under the terms of the policy since the police car there involved was a 'non-owned' vehicle furnished by the employer and being used in the occupation of the insured Gardner as a policeman.

The policy involved in Carr v. Home Indemnity Company, 404 Pa. 27, 170 A.2d 588, 83 A.L.R.2d 922 (1961), defined a 'non-owned automobile' in the exact language as the policy in Commercial Insurance Co. of Newark, N.J. v. Gardner, supra. There too it was argued that the definition was ambiguous and that the ambiguity should be resolved against the company. The court held that the policy was not ambiguous and did not include an automobile driven by the insured but owned by a relative. The court said, 'If we were to hold otherwise we would be rewriting the insurance policy for the parties and this we can not do * *...