State Farm Mutual Automobile Insurance Co. v. Holloway, 233-68

• Decision Date: 19 March 1970
• Docket Number: 234-68.,No. 233-68,233-68
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff-Appellant, v. Marie HOLLOWAY, Associated Indemnity Corporation, a Foreign Corporation, Mildred Shoop and Wilbur Shoop, Defendants-Appellees. Mildred SHOOP and Wilbur Shoop, Defendants-Appellants, v. ASSOCIATED INDEMNITY CORPORATION, a Foreign Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

423 F.2d 1281 (1970)

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff-Appellant, v. Marie HOLLOWAY, Associated Indemnity Corporation, a Foreign Corporation, Mildred Shoop and Wilbur Shoop, Defendants-Appellees.

Mildred SHOOP and Wilbur Shoop, Defendants-Appellants, v. ASSOCIATED INDEMNITY CORPORATION, a Foreign Corporation, Defendant-Appellee.

Nos. 233-68, 234-68.

United States Court of Appeals, Tenth Circuit.

March 19, 1970.

Joseph A. Sharp, Tulsa, Okl. (Best, Sharp, Thomas & Glass, Tulsa, Okl., of

Counsel, with him on the brief) for plaintiff-appellant State Farm Mutual Automobile Insurance Co.

Donald Church, Tulsa, Okl. (Church & Roberts, Tulsa, Okl., of Counsel, with him on the brief) for defendants-appellants Mildred Shoop and Wilbur Shoop.

B. W. Tabor, Tulsa, Okl. (Rucker & Tabor, Tulsa, Okl., of Counsel, with him on the brief) for defendant-appellee Associated Indemnity Corporation.

Before MURRAH, Chief Judge, and TUTTLE^* and BREITENSTEIN, Circuit Judges.

TUTTLE, Circuit Judge:

This is an appeal from a judgment in favor of the defendants-appellees in a declaratory judgment act brought by the appellant, State Farm Mutual Automobile Insurance Company, to settle the question of its liability on a public liability automobile policy following an accident in which Marie Holloway had been found liable for injuries to Mildred and Wilbur Shoop in an accident which occurred on April 9, 1966 in Tulsa, Oklahoma.

The question that was required to be decided by the trial court, and which is now before us for decision, is whether either of the two insurance companies in the litigation is liable to the Shoops as insurers of Marie Holloway against whom the Shoops obtained a judgment somewhat in excess of $10,000. The facts are not in dispute, or at least, we must say that the trial court's findings of fact are all adequately supported by the evidence and we are unable to determine that any of these findings are clearly erroneous. The statement hereafter made with respect to the facts thus represent the background upon which we must base our determination as to the legal effects of the several relationships.

Prior to the accident in question, State Farm had issued a family automobile policy to Marie Holloway's husband, William Holloway. The policy issued by State Farm did not specifically cover the automobile which Mrs. Holloway was driving at the time of the accident; however, it did provide non-owned automobile coverage for Marie Holloway under certain circumstances. The exact language that outlines the circumstances that must be present in order to afford coverage will be expressly set out in our later discussion of the case.

Prior to the accident, Associated Indemnity had issued a family automobile policy to Robert and Evelyn Shaw, the parents of Marie Holloway.¹ This policy specifically covered the automobile involved in the accident, but by its terms it provided coverage for Marie only if she was a member of the household of the Shaws or under other particular circumstances; again we shall defer the statement of the precise terms of the policy until a later discussion.

Both of the above policies were in full force and effect on April 9, 1966, when Mrs. Holloway, driving the Shaw automobile, had her accident with the Shoops. The trial court found that the Associated policy afforded no protection to Marie Holloway, or through her, to the injured parties, but did find that the State Farm policy afforded coverage on the basis of the provisions of the "non-owned" car clause in the policy. In order to make clear the application of the findings of fact by the trial court to the respective policies, we here set out the provisions of the two policies.

In the Associated Indemnity Policy, we find the following:

"Persons Insured: The following are insureds under Part I:

1. The named insured and any resident of the same household 2. Any other person using such automobile with permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permissions * * *"

In the State Farm Policy, there is the following wording:

"1. Coverages A and B applies to the use of a non-owned automobile by:

(a) The person named in the declarations, or,

(b) if residents of the same household, his spouse or the relatives of either * * * provided such use, operation, occupancy or custody is with the permission of the owner or person in lawful possession of such automobile."

In view of the fact that it is necessary, in determining the coverage afforded by the two policies, to determine the question of whose "household" Marie Holloway was a member of, it is necessary to state briefly what the facts are with respect to these circumstances. Her husband, William, went away on basic Army training, shortly after they were married and had set up house-keeping. During the time that he was at basic training, she was primarily visiting his parents. However, at the time of the accident and for a period of approximately two weeks before and after the accident, she was actually physically staying in the home of her own parents, Mr. and Mrs. Shaw. This was necessitated because Mrs. Shaw's mother would otherwise be in the Shaw home alone and Mrs. Holloway was helping out by staying there temporarily. This state of facts, of course, poses a nice question when we consider the fact that, as stated by this court in Hardesty v. State Farm Mutual Automobile Insurance Co. (10 Cir., 1966) 361 F.2d 176 and reiterated in Aetna Casualty & Surety Co. of Hartford, Conn. v. Means (10 Cir., 1967) 382 F.2d 26, "An insured under an automobile liability policy could legally maintain more than one household."

While we believe that the trier of facts might, under the circumstances here present, have held that Marie Holloway was a member of the household either of her husband, William, as it did, or that she was a member of the household of the Shaws, which it did not, or a member of the household of her husband's parents, which was not a material issue and which, therefore, was not passed upon, we are taught by the established jurisprudence, as particularly stated in Aetna Casualty & Surety Co., supra, that the question as to the inferences to be drawn presented a fact issue. It is properly a question normally to be submitted to a jury. So, here, was this a fact issue which was to be decided by the trial court. That court decided and made a finding of fact to the effect that at the time of the accident, Marie was a member of the household of her husband and that she was not a member of the household of her parents, Mr. and Mrs. Shaw.

Based on these findings of fact, Associated is clearly exonerated unless Marie would fall within subparagraph 2, supra, as a "person using such automobile with permission of the named insured, provided her actual operation * * * was within the scope of such permission * * *" The trial court made the further express finding that Marie was not using the automobile "within the scope of the permission granted her by her mother, Mrs. Shaw, or her father, Mr. Shaw." Thus, the trial court determined that Associated Indemnity had no liability under its policy. With this conclusion, we agree in light of the findings of fact which we cannot overrule as being clearly erroneous.

Turning next to the State Farm Policy, we find that the coverage, quoted above, applies to the use of a non-owned automobile if such non-owned automobile was being used by the named insured, William Holloway, or if the use was by a "resident of the same household," which Marie was, his...