Saggau v. State Farm Mut. Ins. Co., 1

• Decision Date: 09 February 1972
• Docket Number: CA-CIV,No. 1,1
• Citation: 16 Ariz.App. 361,493 P.2d 528
• Parties: Richard J. SAGGAU, Individually and as Guardian ad Litem of Kent Saggau, a minor, et al., Appellants, v. STATE FARM MUTUAL INSURANCE COMPANY, a corporation, Appellee. 1274.
• Court: Arizona Court of Appeals

Page 528

493 P.2d 528

16 Ariz.App. 361

Richard J. SAGGAU, Individually and as Guardian ad Litem of Kent Saggau, a minor, et al., Appellants, v. STATE FARM MUTUAL INSURANCE COMPANY, a corporation, Appellee.

No. 1 CA-CIV 1274.

Court of Appeals of Arizona, Division 1, Department B.

Feb. 9, 1972.

Rehearing Denied March 9, 1972.

Review Denied April 25, 1972.

Harrison, Myers & Singer, by Mark I. Harrison, Noel K. Dessaint, Phoenix, Clyde E. Douglas, Phoenix, for appellants. O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, by Ralph Hunsaker, Phoenix, for appellee.

EUBANK, Judge.

This appeal is from a declaratory judgment in favor of State Farm Mutual Insurance Company, hereafter 'State Farm,' declaring that no policy of insurance of State Farm existed covering Michael Kitchen, a minor, or his parents, Albert A. Kitchen and Meredith J. Kitchen, on October 8, 1965, the date of an accident involving Michael and resulting in an injury to the other appellant, Kent Saggau, and his passenger.

Appellants raise four questions for our consideration on appeal. They are:

'1. Did State Farm's agent, Joe Kearney, bind insurance coverage on the Kitchen vehicle?

2. Did State Farm's settlement with Saggau's passenger estop the company from denying the existence of coverage or from limiting coverage thereafter?

3. Did Mrs. Kearney, the wife of State Farm's agent, have the apparent authority necessary to bind coverage on the Kitchen vehicle?

4. Where there is a factual dispute as to whether or not the contract of insurance preceded a loss for which the insurance was obtained, should doubts be resolved against the insurer and in favor of the insured?'

The fact issues were tried by the court, as authorized by A.R.S. § 12--1839 and Rule 57, Rules of Civil Procedure, 16 A.R.S., without a jury. Neither party requested the trial court to make findings of fact and conclusions of law and, except for paragraph 1 of the declaratory judgment, Infra, none were made. Paragraph numbered 1 of the judgment reads:

'1. On October 8, 1965, there was no policy of automobile liability insurance in existence which was issued by State Farm Mutual Insurance Company covering Michael Kitchen and/or Albert A. Kitchen and Meredith J. Kitchen, husband and wife, which would cover the loss which is the subject matter of Cause No. 186234 pending in the Superior Court of the State of Arizona, County of Maricopa, and further there is no obligation on the part of plaintiff State Farm Mutual Insurance Company to provide a defense to Cause No. 186234 in the Superior Court of the State of Arizona, County of Maricopa, to the defendants therein, Michael Kitchen, a minor, and/or Albert A. Kitchen and Meredith J. Kitchen, husband and wife.'

Under these circumstances, where we are reviewing the sufficiency of the evidence to support a judgment on appeal and where no findings of fact are made, we are required to draw all inferences which arise from the evidence in favor of sustaining the judgment. Jerger v. Rubin, 106 Ariz. 114, 471 P.2d 726 (1970); Logan Drilling Co. v. O. S. Stapley Co., 14 Ariz.App. 65, 480 P.2d 680 (1971); Kay v. Biggs, 13 Ariz.App. 172, 475 P.2d 1 (1970). The four questions raised on appeal by appellants relate to factual determinations made by the trial court and in reality each questions the sufficiency of the evidence to support the conclusions of law reached by the court in paragraph 1 of the judgment, Supra.

Our review of the record reveals a basic conflict in the evidence as to whether or not State Farm's agent, Joseph Kearney, or his wife in his absence, ever communicated an oral binder of insurance coverage to Mrs. Meredith Kitchen insuring her minor son's automobile on the day of the accident. Mr. Kearney and his wife both testified that they didn't, while Mrs. Kitchen testified, by inference, that they did. The court reconciled the conflict and believed the Kearneys. Furthermore, taking the inference from the evidence in support of the judgment, the record strongly supports the conclusion reached by the trial court, and in addition it would support a finding of fact that Mrs. Kitchen learned of the accident on the evening of October 8, 1965, and rushed over to Kearney's home to deliver her check for the insurance premium After the accident had occurred; and, further that the telephone conversation between Mrs. Kitchen and State Farm's agent Joseph Kearney in late August or early September, 1965, did not result in an oral binder.

The evidence shows that the accident occurred at 8:00 P.M.; that the police were on the scene at 8:05 P.M.; that Mrs. Kitchen telephoned the Kearney home at 8:30 P.M. in order to find out where the Kearneys lived so that she could deliver the insurance premium check and other information required to obtain coverage on her son's automobile; that although Mrs. Kearney was alone at home, Mrs. Kitchen insisted on taking the check to Kearney's home rather than delivering it or mailing it to his office in Scottsdale, and that Mrs. Kitchen arrived at Kearney's house about 8:45 P.M. Mrs. Kitchen denied prior knowledge of the accident and disputed the time sequence, but the trial court could have drawn the inference from this evidence that she did know of it and that the accident furnished the motivation for her subsequent conduct. Further, it is also contended by Mrs. Kitchen that in the latter part of August, 1965, she telephoned State Farm's agent Joe Kearney at his office concerning liability insurance coverage for her son Michael, who was to become 16 years old on September 22, 1965, and that the discussion included her intended purchase of an automobile for Michael's use. She contends that an oral binder resulted from this conversation. The record shows that State Farm's agent took notes of the conversation, which are in evidence, and that he testified that he merely quoted her an insurance rate for such coverage and denied an oral...