State Farm Mutual Automobile Insurance Co. v. O'BRIEN

• Decision Date: 09 September 1974
• Docket Number: No. 6-73-Civ-114.,6-73-Civ-114.
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Bloomington, Illinois, a corporation, Plaintiff, v. George O'BRIEN et al., Defendants.
• Court: U.S. District Court — District of Minnesota

380 F. Supp. 1279

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Bloomington, Illinois, a corporation, Plaintiff, v. George O'BRIEN et al., Defendants.

No. 6-73-Civ-114.

United States District Court, D. Minnesota, Third Division.

September 9, 1974.

Gerald S. Rufer, Rufer, Hefte, Pemberton, Schulze & Sorlie, Fergus Falls, Minn., for plaintiff.

Curtis L. Charlson, Thief River Falls, Minn., for defendants.

MEMORANDUM & ORDER

DEVITT, Chief Judge.

In this declaratory judgment action based on diversity jurisdiction submitted on cross motions for summary judgment, the issue is whether plaintiff's automobile insurance policy covering "use" of the insured truck contemplates liability to defendants for damages occasioned by its unauthorized movement by a six year old son of the insured under the stipulated facts. Briefs have been lodged.

The pertinent stipulated facts are that on August 29, 1970 an accident occurred involving a pickup truck owned by defendant George O'Brien and insured by plaintiff. On the day of the accident, Mrs. O'Brien had backed the truck to within five feet of the wall of her house. At that point, the ground slopes slightly toward the house. The emergency brake did not operate, so Mrs. O'Brien left the truck in reverse gear to prevent its rolling backward. With the truck's motor turned off and all of the children out of the truck, Mrs. O'Brien began unloading cans of water from the rear of the truck. She saw her six-year old son, Ronald, go past her and jump into the pickup truck on the driver's side and thinks she then "yelled at him to stay out of there." Ronald turned on the ignition and stepped down on the starter, causing the truck to surge backward, pinning Mrs. O'Brien between the truck and the wall. This caused serious injury to her leg, eventually necessitating its amputation. Civil damage actions pend in Beltrami County State District Court, and this declaratory judgment action was instituted by plaintiff insurer to determine its responsibility to defend and respond in damages.

The insurance policy covers injury and damages "caused by accident arising out of the ownership, maintenance, or use, including loading or unloading, of the owned automobile. . . ." Plaintiff contends that it is not liable because the injury did not arise out of the "use" of the vehicle. Defendants urge that Ronald was driving the truck and that this constitutes a "use" affording coverage under the policy.

The term "use" has been defined as the general catchall of an omnibus insurance clause, designed and construed to include all proper uses of the vehicle not falling within other terms of definition such as ownership and maintenance. State Farm Mut. Auto. Ins. Co. v. Pan American Ins. Co., 437 S.W.2d 542 (Tex.1969); 7 J. Appleman, Insurance Law and Practice § 4316(e) (1942). In Great Am. Indem. Co. of New York v. Saltzman, 213 F.2d 743 (8th Cir. 1954) the court said:

Of course if the term "use" is construed to embrace all of its possible meanings and ramifications, practically every activity of mankind would amount to a "use" of something. However, the term must be considered with regard to the setting in which it is employed.

Id. at 747.

The two cases most nearly on point involve accidents which resulted when children entered automobiles and set them in motion. Both cases found that the automobile was not being "used" as contemplated in the applicable clause of the insurance contracts involved. In Assurance Co. of Am. v. Bell, 108 Ga.App. 766, 134 S.E.2d 540 (1963), the plaintiff's infant child released the emergency brake of an automobile, allowing it to roll downhill and sustain damage. This was found not to be a use of the automobile within the insurance contract's comparable provision. In Tucker v. State Farm Mut. Auto. Ins. Co., 154 So. 2d 226 (La.App.1963), a child, seven and one half years of age, disengaged the gears or released the emergency brake of an automobile. The child's mother was struck and fatally injured when she attempted to stop the automobile as it rolled down an incline. The court denied recovery, concluding that the vehicles was not being "used" by the child in the contemplated sense. Defendants have not cited any cases involving vehicles set in motion by young children which have reached a contrary result, and research by the Court has revealed none.

The two cases just discussed did not turn, as defendants' brief implies, upon the question of whether an infant can be legally capable of negligence under the law of the state involved. Rather, as stated by the court in Tucker, the conclusion was reached by finding that the automobile was not being "used" by the child. In amplifying its conclusion the court declared:

We are confirmed in this conclusion by the conviction

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