Southern Farm Bureau Cas. Ins. Co. v. Adams, 1318

• Decision Date: 29 August 1978
• Docket Number: No. 1318,1318
• Parties: SOUTHERN FARM BUREAU CASUALTY INSURANCE CO., Appellant, v. James R. ADAMS et al., Appellees.
• Court: Texas Court of Appeals

Page 567

570 S.W.2d 567

SOUTHERN FARM BUREAU CASUALTY INSURANCE CO., Appellant, v. James R. ADAMS et al., Appellees.

No. 1318.

Court of Civil Appeals of Texas, Corpus Christi.

Aug. 29, 1978.

Rehearing Denied Sept. 21, 1978.

William A. Abernethy, Meredith, Donnell & Edmonds, Corpus Christi, for appellant.

William G. Burnett, Burnett & Burnett, Sinton, for appellees.

OPINION

BISSETT, Justice.

This is a suit for declaratory judgment. Suit was brought by James R. Adams and Donald G. Adams, hereinafter called "plaintiffs", against Southern Farm Bureau Casualty Insurance Company, hereinafter called "defendant", to determine whether or not defendant, under an existing insurance policy, had the duty to defend plaintiffs in an action brought against them by a third person. Both parties filed motions for summary judgment. Plaintiffs' motion was granted and defendant's motion was denied. Judgment was rendered which decreed that defendant was required to defend plaintiffs in the suit brought against them. Defendant has appealed.

Defendant issued a "Farmer's Comprehensive Personal Insurance" policy to plaintiffs on February 17, 1974, wherein it contracted to pay on behalf of plaintiffs all sums which plaintiffs shall become legally obligated to pay as damages because of bodily injury caused by an occurrence during the policy period, and further contracted with plaintiffs to defend any suit against them by a third person where a recovery is sought against them because of bodily injury allegedly sustained by such a person.

The policy had numerous exclusions from coverage, including among others:

"This coverage does not apply:

(c) to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of:

(1) any aircraft;

(n) to property damage arising out of any substance released or discharged from any aircraft . . ."

On March 26, 1976, Michael Hedke filed a suit in San Patricio County, Texas. It was docketed as Cause No. 18077 and was styled "MILTON HEDKE VS. GREENWAY AVIATION CO., ET AL." Greenway Aviation Company and the plaintiffs in this suit were named as defendants in the Hedke suit. Hedke alleged that the defendants in that suit were negligent in the use and distribution of chemical spray, which proximately caused him to suffer bodily injuries and medical expenses in an amount in excess of $10,000.00. With respect to the allegations in Hedke's petition which bear on the disposition of this appeal, it was alleged:

"II.

The Plaintiff shows that on or about the 19th day of July, 1974, he was engaged in performing work as a gauger for his employer and was on a public road a few miles east of Mathis in route to one of the wells that he was employed to gauge and operate when an airplane, so Plaintiff is informed and believes, piloted by Buster Boyd and owned by Greenway Aviation Company, doing work on behalf of Adams Brothers, sprayed his pickup truck and covered the Plaintiff with the wet spray which Plaintiff is informed and believes was a methyl parathion mixture intended to be used on the cotton crops of the Adams Brothers' farming operations. That the immediate effect of the spray was to cause immediate tearing of the eyes, difficulty in breathing and swelling. Since being heavily sprayed with the chemical, the Plaintiff has been under the constant care of a doctor, has been on medication, has had continuous sense of nervousness and a sense of anxiety and unrest and it now appears that he has suffered permanent damage to his body, nerves and tissues, by reason of this heavy dosage of chemical spray."

Plaintiffs, upon service of citation in the Hedke suit upon them, requested defendant to defend them against the claim for damages sought by Hedke. Defendant refused to do so on the ground that the policy excluded coverage under the facts alleged by Hedke in his petition. Plaintiffs then filed this lawsuit.

Defendant attacks the judgment of the court below in three points of error. It is contended in the first and second points that the trial court erred in rendering summary judgment for plaintiffs because, as a matter of law: 1) the allegations contained in Hedke's petition in Cause No. 18077 do not show that defendant has a duty to defend plaintiffs in that action; 2) coverage is expressly excluded in the policy for the cause of action instituted by Hedke against plaintiffs. In the third point, it is asserted that the trial court erred in failing to render summary judgment in favor of it (defendant) because the Hedke petition in Cause No. 18077 fails to fall within the coverage provided by the insurance policy in question.

The sole question to be determined in this appeal is one of law, being the construction of the phrase "arising out of the . . . use . . . of . . . any aircraft." It is the defendant's position that such phrase, properly construed, means that the exclusion can be invoked without the plaintiffs personally using any aircraft; and that plaintiffs, by having Greenway Aviation Company spray their crops with an aircraft, used such aircraft within the meaning of the word "use" as contained in the exclusionary clause. It is plaintiffs' position that such phrase, properly construed, means that the exclusion becomes operative only where they (plaintiffs) personally owned, maintained, operated, used, loaded or unloaded an aircraft which resulted in bodily injury to a third person; and that where they did not personally own, maintain, operate, use, load or unload the aircraft, although bodily injury may have occurred out of the use of the aircraft, the exclusion does not apply.

It is stipulated that at the time of Hedke's alleged injuries, plaintiffs were insured by a policy which was duly issued by defendant. Other summary judgment evidence, consisting of admissions, deposition and affidavits, established conclusively: the premium for the policy year February 17, 1974 to February 17, 1975 had been paid; the policy was in force on July 19, 1974, when Hedke alleged that he sustained bodily injury as a result of the chemical spraying of plaintiffs' crops by Greenway Aviation Co.; timely notice of Hedke's suit was given by plaintiffs to defendant; applicable policy limits had not been exceeded by payments by defendant on March 26, 1976, when Hedke filed his suit; and Greenway Aviation Co., the owner of the airplane that sprayed Hedke, was an independent contractor who had contracted with plaintiffs for the spraying of their crops.

When terms of an insurance policy are unambiguous, they are to be given their plain, ordinary and generally accepted meaning, unless the policy itself shows that the terms have been used in a different sense. Gallup v. St. Paul Insurance Company, 515 S.W.2d 249 (Tex.Sup.1974); Southern Life and Health Ins. Co. v. Simon, 416 S.W.2d 793 (Tex.Sup.1967). Generally speaking, all parts of an insurance policy are to be taken together, and the meaning of the terms used therein will be given as will carry out and effectuate to the fullest extent the intention of the parties, since each word in the particular phrase in question is intended to have a meaning in and of itself. Royal Indemnity Company v. Marshall, 388 S.W.2d 176 (Tex.Sup.1965).

The word "use" has been construed to mean "to put or bring into action...