Ricci v. U.S. Fidelity & Guaranty Co.

• Decision Date: 02 May 1972
• Docket Number: No. 1456-A,1456-A
• Citation: Ricci v. U.S. Fidelity & Guaranty Co., 290 A.2d 408, 110 R.I. 68 (R.I. 1972)
• Parties: Michael A. RICCI v. UNITED STATES FIDELITY AND GUARANTY COMPANY. ppeal.
• Court: Rhode Island Supreme Court

Page 408

290 A.2d 408

110 R.I. 68

Michael A. RICCI v. UNITED STATES FIDELITY AND GUARANTY COMPANY.

No. 1456-Appeal.

Supreme Court of Rhode Island.

May 2, 1972.

Jackvony & DeConti, Merlin A. DeConti, Louis M. Cioci, Providence, for plaintiff.

Francis A. Kelleher, John E. Fuyat, Providence, for defendant.

OPINION

PAOLINO, Justice.

The plaintiff brought this complaint for a declaratory judgment pursuant to the provisions of the Uniform Declaratory Judgments Act, G.L.1956, ch. 30 of title 9, to determine his rights under a policy of insurance issued to him by the defendant insurance company covering two automobiles owned by him personally. The case was heard before a justice of the Superior Court sitting without a jury. After the hearing he rendered a decision granting the relief prayed for. The cause is before this court on the defendant's appeal from the judgment entered pursuant to such decision.

The record discloses the following pertinent facts. On April 15, 1967, the plaintiff, while operating a motor vehicle upon a public highway in the city of Providence struck a pedestrian. The motor vehicle was owned by Rolyn, Inc., a Rhode Island corporation of which plaintiff was the president. At the time of the accident plaintiff was returning to his home in Cranston from a jewelry show at the Biltmore Hotel in Providence where his company had a display booth showing jewelry items manufactured and sold by it.

The automobile being operated by plaintiff at the time of the accident, to which we shall hereinafter at times refer to as the company car, was insured by defendant and had a policy limit of $20,000 for bodily-injury liability. This car was a 1966 Buick Riviera. As a result of the accident the pedestrian, one Emma Pakruder, sustained serious bodily injuries. The subsequently brought a personal injury action against plaintiff. The defendant through its attorney, entered an appearance for plaintiff, Mr. Ricci, in that suit.

On the date of the accident plaintiff was a named insured under a family automobile policy which had also been issued by the defendant insurance company. This policy covered two motor vehicles, a 1965 Chevrolet Corvette Stingray and a 1965 Dodge Coronet, both of which were owned by him personally. The policy has bodily-injury liability in the amount of $50,000 and contains an agreement to pay on behalf of the insured all sums which the insured becomes legally obligated to pay as damages because of bodily injury, etc., and injury to or destruction of property, etc., arising out of ownership, maintenance or use of the owned automobile or any 'non-owned' automobile. Insofar as pertinent here the policy provides that the following are insureds under Part I of the policy:

'(a) with respect to the owned automobile,

(1) the Named Insured * * *

'(b) with respect to a non-owned automobile,

(1) the Named Insured,

(2) any relative * * *.'

The policy contains the follwing pertinent definitions:

"Named Insured' means the individual named in Item 1 of the declarations and also includes his spouse, if a resident of the same household;

"relative' means a relative of the Named Insured who is a resident of the same household;

"temporary substitute automobile' means any automobile or trailer, not owned by the Named Insured, while temporarily used with the permission of the owner as a substitute for the owned automobile or trailer when withdrawn from normal use because of its breakdown, repair, servicing loss or destruction;

"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.'

In brief the family automobile policy covered the operation by plaintiff of a non-owned automobile not furnished for his regular use.

After the accident, plaintiff asked defendant to extend the coverage of the family automobile policy to the April 15, 1967 accident on the ground that at that time he was operating a non-owned automobile not furnished for his regular use. The defendant refused to do so and thereafter plaintiff commenced the instant action. The defendant filed an answer in which it denied that the family policy covered the operation of the company car operated by plaintiff at the time of the accident.

The plaintiff was the only witness to testify at the hearing in the Superior Court. The family automobile policy and certain documents establishing that the 1966 Buick Riviera was bought and paid for by Rolyn, Inc., were offered into evidence by plaintiff and admitted as exhibits without objection by defendant.

In direct examination plaintiff gave the following testimony. He lived in the city of Cranston and worked for Rolyn, Inc., which was his own company and was located in Providence. In 1967 he was president of the company and on April 15, 1967, he was involved in an accident while operating the 1966 Buick, which was owned by, and used for the business of, the company. The company owned no other vehicle at the time. The 1966 Buick was used to go to different jewelry shows and this was the only vehicle used to transport the company's line of costume jewelry from show to show.

His testimony in cross-examination is as follows. The car at that time was registered and owned by the company. His son, Douglas, who lived in North Kingstown, was in business with him in 1967. On the morning of the accident Douglas had driven the car to work as usual. On that morning plaintiff's wife had driven him to work in his own personal car. On occasion the plaintiff drove it to work. If plaintiff had errands to run he would drive it to work and would drive it home at night. On the night of the accident he left work and walked to a jewelry show at the Biltmore Hotel. Douglas had driven the car there. The plaintiff had not driven the car to any jewelry show that year or in 1966. After he had completed his business at the jewelry show that night he drove the company car home and that is when he struck the pedestrian. His son would drive it home on a regular basis and on occasion he (plaintiff) drove it home. He might drive the car home one day or two days a week; it sometimes varied; it might be two days one week and some weeks he never drove it at all. He also testified that some weeks he might drive it home three days a week, garage it at his house, and drive it back next morning.

In redirect examination he stated that during the years 1966-67 he used the company car for his own personal use on an average of twelve times a month. He testified that the company car was primarily used for the business of selling the jewelry his company manufactured; that Douglas did most of the selling; that he covered the northeast territory; and the company car was used for that purpose.

The questions and answers during his recross-examination are as follows:

'Q Mr. Ricci, it is your testimony that you used the vehicle on an average of twelve times a month for your personal business and on occasion you would also use the vehicle for business purposes?

'A Yes.

'Q Frequently you would drive it home at night and drive it in in the morning, and while the car was at your place of business you could use the car at any time you so desired as president of the corporation?

'A Yes.

'Q And it was there and available for your use at any time you so desired?

'A If I had to go places, yes.'

The defendant rested without presenting any evidence.

Having found that the 1966 Buick was not owned by plaintiff and that it was a 'non-owned automobile' within the meaning of the family policy, and having further found that the case presented no 'relative' problem since Douglas did not live with plaintiff, the trial justice concluded that the only issue before him was whether this automobile was furnished for the regular use of the named insured, that is, plaintiff, within the meaning of the family automobile policy.

In considering this question the trial justice observed that the evidence indicated that the car was most generally and frequently used by Douglas in the course of his sales activities on behalf of the company, that he usually drove the car to work, and that he used the car extensively in his sales work. He referred expressly to plaintiff's testimony about his use of the company car and found, by way of inference from such testimony, that plaintiff's use of the company car was occasional and sporadic, as opposed to regular. He noted that plaintiff's use was not subject to any well-defined or regular pattern and that at times the use might be more frequent than at other times.' He construed the word 'regular' strictly and against the company, and held that it did not include a sporadic and occasional use, but rather meant 'a regular use that is susceptible of discerning a definite pattern.' The trial justice then held that plaintiff's use of the 1966 Buick did not come within the definition of 'regular' and that therefore his family automobile policy covered him and the company car he was operating at the time of the accident. He also held that this coverage was excess insurance as provided in the policy. A judgment incorporating the trial justice's ultimate findings was subsequently entered.

We agree with the trial justice's determination that the only issue raised by this record is whether the 1966 Buick was furnished by Rolyn, Inc. for the regular use of plaintiff. If it was, it was not covered by the family automobile policy and defendant is not liable under that policy. If it was not furnished for his regular use, then defendant is liable under the terms of such policy.

The defendant argues that it is exempt from liability under plaintiff's family automobile policy because the car plaintiff was driving at the time of the accident was one 'furnished for the regular use of' plaintiff and therefore excepted from coverage by the terms of that policy. This argument presents both a question of fact and one of...