State Farm Mut. Auto. Ins. Co. v. Farmers Ins. Group

• Citation: 569 P.2d 1260
• Decision Date: 05 October 1977
• Docket Number: No. 4684,4684
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation, Appellant (Plaintiff below), v. FARMERS INSURANCE GROUP, a corporation; and Henry Wilcox and Cleve Martin, d/b/a Wilcox Oil Company, Appellees (Defendants below), Laura H. Fields, Douglas Fields (Defendants below).
• Court: United States State Supreme Court of Wyoming

Page 1260

569 P.2d 1260

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation, Appellant (Plaintiff below), v. FARMERS INSURANCE GROUP, a corporation; and Henry Wilcox and Cleve Martin, d/b/a Wilcox Oil Company, Appellees (Defendants below) Laura H. Fields, Douglas Fields (Defendants below).

No. 4684.

Supreme Court of Wyoming.

Oct. 5, 1977.

Richard W. Laugesen, Jr., DeMoulin, Anderson, Campbell and Laugesen, Denver, Colo., and Alfred M. Pence, Pence, Millett & MacMillan, Laramie, for appellant.

William H. Jackson, Rock Springs, and T. Michael Golden, MacPherson & Golden, Rawlins, for appellees.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

THOMAS, Justice.

This action was brought by State Farm Mutual Automobile Insurance Company, Appellant, seeking a declaratory judgment with respect to its obligations under a particular insurance policy. Laura H. Fields was the named insured in the policy and by definition Douglas Fields, her husband, also was included as a named insured. Appellant asked the district court to declare that it had no duty or liability under the insurance policy arising out of an accident which involved a self-propelled concrete pumping machine. The machine was owned by Douglas Fields. The district court ruled against appellant, holding that coverage under the insurance policy did include the accident described in the complaint. We do not agree with the construction of the critical language in the insurance policy by the district court, and the judgment must be reversed.

The concrete pumping machine was mounted on the chassis of a truck with single front wheels and dual rear wheels. In the center of the machine at the rear of the truck was a hopper which was designed to receive cement at a job site from a ready-mix cement truck. The concrete, through adjustments in the pumping mechanism, could be channeled along the ground level or it could be pumped upward through a pipe and then through a connecting hose which would carry it into an upper boom. The boom could be maneuvered in different directions so that the concrete could be poured into construction forms at varying positions and heights. The boom had a total extension of 67 feet.

The concrete pumping machine was equipped with four stabilizing feet or outriggers which were hydraulically controlled, and could lift the machine entirely off the ground. These were designed to furnish stability for the machine while it was pumping cement. The truck on which the cement pumping machine was mounted was mobile, and it could travel on the public roads from one construction site to another. It was licensed by the State of Wyoming. The only purpose of the machine was to pump concrete (usually delivered to the construction site by ready-mix cement trucks) into forms. It could by its own power be moved from place to place for that purpose. The machine was operated by means of a power takeoff which ran off the truck engine.

The accident which led to the filing of this action occurred on July 15, 1974. While the concrete pumping machine was in use at a construction site the boom was raised in order to pour concrete over an obstruction. While the boom was being maneuvered it came so close to an electrical power line that it attracted electrical energy which was transmitted to employees on the construction site, killing one employee and injuring two others. At that time the stabilizers were in use, and the machine was being operated at the construction site for the purpose of pumping concrete.

The concrete pumping machine and the truck on which it was mounted are not referred to in the insurance policy. This rig was acquired by Douglas Fields while the policy was in force, and the 30 day grace period for applying for coverage on newly acquired automobiles had not expired as of the date of the accident. If coverage were in effect it would be due to the policy provisions relating to newly acquired automobiles. The following policy language is pertinent in the disposition of this case:

"Owned motor vehicle means the motor vehicle or trailer described in the declarations and includes a temporary substitute automobile, and newly acquired automobile * * *."

"Newly acquired automobile means an automobile, ownership of which is acquired by the named insured or his spouse, if a resident of the same household * * *."

"Automobile means a four wheel land motor vehicle designed for use principally upon public roads * * *."

The district court concluded that this was a newly acquired automobile within the definition of the policy, and that the circumstances disclosed that the death and injuries came within the language of the policy providing coverage for those events which "were caused by accident arising out of the ownership, maintenance or use, including loading or unloading of the owned motor vehicle ; * * *." This was the only significant conclusion by the district court in its judgment, and while the other appellees were made parties in the district court, the judgment dealt only with the efficacy of the insurance contract between appellant and the Fields.

Appellant argues for reversal contending that the policy did not afford automatic coverage to this concrete pumping machine and that the factual circumstances do not bring it within the omnibus liability clause of the policy. In addition, there is an argument that the liability insurance issued by the appellee, Farmers Insurance Group, should be applied to this particular accident. The district court made no determination with respect to this latter contention, and it therefore is not before us for purposes of this appeal. The parties agreed in the district court to the limited determination made with respect to coverage of the appellant's policy, and the appeal is limited to that judgment. The appellees, Laura H. Fields and Douglas Fields did not appear before our Court, and consequently we feel disadvantaged because the adversary system does not function effectively if both sides of the controversy are not represented. The appearance of the other appellees, Farmers Insurance Group, was merely for the purpose of insuring that the Court did not, in treating the appeal, go beyond the scope of the judgment actually entered by the district court.

The critical policy language is found in the definition of an automobile. We previously have recognized that parties to an insurance contract have the right to embody in their contract whatever lawful terms they wish and that the courts will not rewrite such contracts. Alm v. Hartford Fire Insurance Company, Wyo., 369 P.2d 216 (1962); Rosenblum v. Sun Life Assur. Co. of Canada, 51 Wyo. 195, 65 P.2d 399, 109 A.L.R. 911 (1937). We are persuaded that at the time and place of the accident this concrete pumping machine was not "a four wheel land motor vehicle designed for use principally upon public roads * * *," and for that reason we hold that coverage did not exist under the appellant's policy.

Other courts have struggled with similar problems under a variety of circumstances involving various contractual provisions and different definitional phrases with a predictable assortment of results. Those courts which have dealt with factual circumstances most closely comparable to these have either directly or inferentially recognized a dual design concept. They have applied to devices such as that involved here a "Pegasus" principle. In a very pragmatic context they have held or indicated that while being driven from place to place a machine like this one is an automobile because under those circumstances it is like any other truck carrying any other load from one point to another. Conversely, they also have recognized that when set up in place to perform its primary function such a machine is no longer an automobile, but at that point and at that time it is being used for its other designed function. It then no longer is to be considered an automobile or motor vehicle under the definitional terms of the policy. Sparkman v. Highway Insurance Company, 266 F.Supp. 197 (W.D.La.1967); Home Indemnity Company v. Transport Indemnity Company, 263 Cal.App.2d 100, 69 Cal.Rptr. 504 (1968); Industrial Indemnity Company v. General Insurance Company of America, 210 Cal.App.2d 352, 26 Cal.Rptr. 568 (Cal.App.1962); Schmidt v. Luchterhand, 62 Wis.2d 125, 214 N.W.2d 393 (1974); Smedley v. Milwaukee Automobile Insurance Co., 12 Wis.2d 460, 107 N.W.2d 625 (1961). Cf., Liberty Mutual Insurance Company v. Dooley Electric Co., Inc., Sup., 133 N.Y.S.2d 785 (1954).

Under the reasoning of these cases this concrete pumping machine at the time and place of the accident which resulted in this action being brought, was not a four wheel land motor vehicle designed for use principally upon public roads. Instead, it was a concrete pumping machine rendered immobile by the use of the outriggers or stabilizers, and it was at that time and that place principally designed and used only for the purpose of pumping concrete into forms. Since it was not included in the definitional language, it was not covered by the State Farm Mutual Automobile Insurance Company policy as a "newly acquired automobile."

While it is suggested that it is not unfair to include this machine within the coverage afforded it by the appellant's policy on the theory that it should have known the kinds of vehicles and equipment covered under its policy, this view overlooks the fact that appellant had no opportunity to consider this particular rig because coverage for it was sought under the newly acquired automobile definitions and no application for coverage had been submitted. A recognition of the dichotomy of use of a device such as this also recognizes a difference in the hazards arising out of the separate uses. The authorities indicate that premiums for automobiles and trucks are not established by including hazards such as the one which caused this accident.

Our disposition of the case on...