State Farm Mut. Auto. Ins. Co. v. White

• Decision Date: 01 March 1983
• Docket Number: No. E81-1431,E81-1431
• Citation: 60 Or.App. 666,655 P.2d 599
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, and State Farm Fire and Casualty Company, a foreign corporation, Respondents, v. Lorri Ann WHITE, Warren T. White, Theresa M. White, and Sheila Morgan, Appellants, and Emma Yolanda Vera, Defendant. ; CA A23822.
• Court: Oregon Court of Appeals

Page 599

655 P.2d 599

60 Or.App. 666

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, and State Farm Fire and Casualty Company, a foreign corporation, Respondents, v. Lorri Ann WHITE, Warren T. White, Theresa M. White, and Sheila Morgan, Appellants and Emma Yolanda Vera, Defendant.

No. E81-1431; CA A23822.

Court of Appeals of Oregon In Banc.

Argued and Submitted July 26, 1982.

Resubmitted In Banc Oct. 6, 1982.

Decided Dec. 15, 1982.

Reconsideration Denied Feb. 9, 1983.

Review Denied Mar. 1, 1983.

Dean Heiling, Roseburg, argued the cause for appellants. With him on the brief was Heiling & McIntosh, Roseburg.

Donald A. Loomis, Eugene, argued the cause for respondents. With him on the brief was Loomis, Tomlinson & Kurtz, Eugene.

THORNTON, Judge.

The plaintiffs in this declaratory judgment action are insurers who contend that they have no duty to defend or pay judgments in actions brought against defendant Lorri Ann White for injuries she caused by grabbing and manipulating the steering wheel of a car in which she was a passenger. White and three other defendants ¹ appeal from the trial court's judgment in plaintiffs' favor. We reverse.

On April 21, 1979, White and three other persons were passengers in a car owned and being driven by Sheila Morgan. They were traveling north on a straight and level four-lane segment of Interstate Highway 5 at approximately 55 miles per hour. White was seated on the right side of the back seat. Shortly after Morgan switched to the left northbound lane to pass another vehicle, White reached between the driver and a passenger in the front seat, "grabbed and yanked" the steering wheel and said "Let's get crazy." Morgan lost control of the car, and it struck the median barrier and overturned.

White contends that she is entitled to coverage under three policies: the automobile liability policy issued by plaintiff State Farm Mutual to White's parents, with whom she resides; the automobile liability policy issued by plaintiff State Farm Fire and Casualty to Morgan; and the homeowner's policy issued by State Farm Fire and Casualty to White's parents.

White's parents' automobile policy provides coverage for relatives of the insured living in the same household. The policy insures for negligence in the use of non-owned vehicles

" * * * [p]rovided such use, operation or occupancy is with the permission of the owner or person in lawful possession of such automobile and is within the scope of such permission." (Emphasis added.)

Morgan's automobile policy includes omnibus coverage for

" * * * any other person while using the owned motor vehicle, provided the operation and the actual use of such vehicle are with the permission of the named insured or such spouse and are within the scope of such permission. * * * " (Emphasis added.)

The homeowner's policy provides personal liability coverage for White, but excludes coverage for

" * * * bodily injury or property damage arising out of the ownership, maintenance, use, loading or unloading of:

" * * *

" * * * a motor vehicle owned or operated by, or rented or loaned to any insured; * * *

" * * *." (Emphasis added.)

The parties agree that Miss White had Miss Morgan's permission to occupy the vehicle as a passenger. Plaintiffs argue that the conduct of White which caused the accident constituted "operation" of the vehicle and exceeded the scope of the permission given White by Morgan. White argues:

" * * * Obviously, the word 'operator' in an insurance policy involving automobiles refers to the driver. In the present case, Ms. White did not actually 'operate' the car--she merely interfered with Ms. Morgan's operation. Ms. Morgan was still the driver and nothing Ms. White did divested Ms. Morgan of that position.

" * * *

"At any rate, it is reasonable for a policy holder to assume that the 'operator' of the car is the driver. It is also reasonable to assume that there is a difference between a driver and a passenger, and that a person cannot be both at the same time. To contend that the word 'operate' means anything else is to render the term ambiguous. That being the case, the meaning of the word must be resolved in favor of the insured. * * * " (Emphasis White's.)

Although Miss White was admittedly occupying the vehicle as a passenger with Miss Morgan's permission, it goes without saying, however, that she did not have Miss Morgan's permission to seize the steering wheel suddenly and bring about the catastrophe that followed. This comes squarely within the exclusionary provisions of the automobile liability policies quoted earlier. Therefore, while we agree with the trial court that Miss Morgan's personal injury action against Miss White is not covered under either the automobile liability policy issued by plaintiff State Farm Mutual to Miss White's parents, or the automobile liability policy issued by plaintiff State Farm Fire and Casualty Company to Miss Morgan, it is our conclusion that her personal injury action against Miss White is covered by the terms of the homeowner's policy carried by Miss White's family. As already noted, this policy provides personal liability coverage for Miss White's negligence except

" * * * bodily injury or property damage arising out of the ownership, maintenance, use, loading or unloading of:

" * * *

" * * * a motor vehicle owned or operated by, or rented or loaned to any insured; * * *

" * * *."

The homeowner's policy provides personal liability coverage for Miss White's actions except when she is using or operating a motor vehicle. As explained below, we conclude that she was not "using" or "operating" a motor vehicle within the meaning of that exception at the time of the accident involved here.

The trial court relied on United States Fidelity & Guar. Co. v. Farm Bureau Mut. Ins. Co., 2 Kan.App.2d 580, 584 P.2d 1264 (1978). There, under facts very similar to those in the present case, the court concluded:

"We believe that when a person takes control of a moving vehicle, even though for only an instant, that person has gained control over it and is operating it within the normal definition and understanding which ordinary laymen would give to an insurance policy." 2 Kan.App.2d at 583, 584 P.2d 1264.

See also State Farm Mutual Auto. Ins. Co. v. Larsen, 62 Ill.App.3d 1, 18 Ill.Dec. 582, 377 N.E.2d 1218 (1978), which reached the same conclusion under similar facts. As the accompanying analysis demonstrates, both of these cases were incorrectly decided and should not be followed. Stated in the simplest terms, Miss White's actions in grabbing the steering wheel did not constitute "operating a motor vehicle." An automobile can have only one driver. The word "operator" in an insurance policy involving automobiles refers to the driver. See Schaffer v. Mill Owners Ins. Co., 242 Or. 150, 407 P.2d 614 (1965), discussed below. It would be more accurate to say that she was interfering with the operation of a motor vehicle.

In State Farm Mut. Automobile Ins. Co. v. Smith, 48 F.Supp. 570 (D.C.Mo.1942), insured's granddaughter who was under the minimum driver's age was operating the automobile. As she approached a point at which it was necessary to turn left to enter a driveway, the insured took hold of the steering wheel and turned the automobile left across the street and into the driveway, where it struck pedestrians on the sidewalk. The insurer was held not to be liable under the policy, which did not apply while the automobile was being "operated" by any person under the minimum age.

State Farm Ins. Co. v. Coughran, 303 U.S. 485, 58 S.Ct. 670, 82 L.Ed. 970 (1938), involved an automobile liability policy exempting the insurer unless the automobile was being operated by the assured, his paid driver, members of his immediate family or persons acting under his direction. The exemption also applied if the automobile was being operated by a person violating the law as to age or driver's license. The court held that the insurer was not liable when the collision occurred while an unlicensed, 13-year-old girl was driving, contrary to the assured's command and in violation of the California statutes, notwithstanding that she was acting under direction of assured's wife, whose act in seizing the wheel was the immediate cause of the collision.

In our motor vehicle code the term operator is defined as follows:

"(3) 'Operator' means any person who is in actual physical control of a vehicle." (ORS 481.040; see also ORS 482.020(2)).

In Schaffer v. Mill Owners Ins. Co., supra, the court said that the motor vehicle code definition of operator of a motor vehicle was not binding on the court in cases involving interpretation of the word "operator" as used in the exclusion clause of an automobile liability policy. The court went on, however, to hold that the word "operator" when used in an automobile liability policy provision excluding from coverage claims arising from accidents occurring while the automobile was being operated by a male operator under 25 years of age, is synonymous with the word driver.

The point of the foregoing illustrations is to demonstrate that what Miss White was doing was interfering in the operation of a...