Tinker v. Continental Ins. Co.

• Decision Date: 30 January 1980
• Citation: 410 A.2d 550
• Parties: Sue T. TINKER et al. v. CONTINENTAL INSURANCE COMPANY.
• Court: Maine Supreme Court

Page 550

410 A.2d 550

Sue T. TINKER et al. v. CONTINENTAL INSURANCE COMPANY.

Supreme Judicial Court of Maine.

Jan. 30, 1980.

Stephen L. Wessler, Asst. Atty. Gen., Dept. of Transp. (orally), Augusta, Joseph B. Pellicani, Peter B. Sulides, Edward B. Miller, Rockland, Jack Simmons, Lewiston, for plaintiffs.

Preti, Flaherty & Beliveau, John Paul Erler (orally), Joel C. Martin, Portland, for defendant.

Before McKUSICK, C. J., and WERNICK, GODFREY, NICHOLS and GLASSMAN, JJ.

WERNICK, Justice.

The personal representatives, respectively, of Glenn J. Tinker, Larry Snowman and Brian H. Whittier, all deceased, as well as Frank and Cynthia Carballo (husband and wife), Allstate Insurance Company and the State of Maine Department of Transportation, joined as plaintiffs in an action for declaratory judgment brought in the Superior Court (Kennebec County) against the defendant Continental Insurance Company (Continental). A single issue was presented for determination: whether Whittier was an "insured" under the automobile liability insurance policy issued by Continental to the State of Maine when, on December 18, 1975, he was operating an automobile Owned by him in the discharge of official State business. The Superior Court concluded that Whittier was not such an "insured", and from the entry of the judgment so adjudicating the plaintiff State of Maine Department of Transportation has appealed to this Court.

We deny the appeal and affirm the judgment of the Superior Court.

On December 18, 1975 Brian H. Whittier, while operating an automobile owned by him, was involved in a collision which caused his death and the death of two passengers in the automobile, Glenn J. Tinker and Larry Snowman. A third passenger, Frank Carballo, was seriously injured. Whittier and his three passengers were employees of the State of Maine Department of Transportation. At the time of the collision they were travelling in the automobile on official State business. Accordingly, as a self-insurer under the Worker's Compensation Act, 39 M.R.S.A. § 23, the State began paying worker's compensation benefits to Carballo and the estates of the deceased occupants of the automobile.

Carballo and his wife, and the personal representatives of the decedents Tinker and Snowman, instituted civil actions against the Estate of Whittier alleging causes of action against Whittier, as a third-person tortfeasor, predicated on his negligence in operating the automobile. Under an automobile liability insurance policy Allstate Insurance Company had with Whittier, which was in full force and effect at the time of the collision, Allstate undertook the defense of these suits. The demands, however, were in excess of the $100,000.00 limit for multiple injuries contained in the Allstate policy. Hence, in hopes of providing additional proceeds for the satisfaction of any judgments obtained, the declaratory judgment action was brought to achieve a determination that the liability policy issued by Continental to the State of Maine afforded insurance protection to Whittier as an insured under that policy. ¹

For a number of years the State of Maine has purchased comprehensive automobile liability protection on the basis of competitive bidding. From 1968 to 1971 the State's fleet coverage was provided by Continental National American Group (CNA). In 1969, pursuant to the recommendation of The Maine Insurance Advisory Board, ² the State requested that CNA delete the "fellow employee exclusion", so-called, from the policy then in force. This was accomplished by an endorsement to the policy. During the years 1971 to 1974 the fleet coverage was provided by Home Indemnity Insurance Company. In 1975, Continental was awarded the fleet coverage contract for the years 1975 to 1978. The policies issued by both Home Indemnity and Continental were standard form policies, and to each of them was appended an endorsement purporting to delete the "fellow employee exclusion." In each case the endorsement was nearly identical to that originally written by CNA.

The Continental policy here under consideration obligated Continental to

"pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of . . . bodily injury or . . . property damage to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use, . . . of any automobile . . . ."

The Continental form policy contains an "exclusion" provision, here pertinent, as follows:

"Exclusions

"This insurance does not apply:

"(c) to bodily injury to any employee of the insured arising out of and in the course of his employment by the insured . . . ."

That form policy also states under the heading "Persons Insured":

"None of the following is an insured:

"(i) any person while engaged in the business of his employer with respect to bodily injury to any fellow employee of such person injured in the course of his employment;"

"(ii) . . . the owner of a non-owned automobile . . . ."

By these specific provisions of Continental's form policy it is plain that Whittier was not afforded insurance protection as an "insured." The narrow issue for decision, then, is whether such protection was effectuated by virtue of the endorsement to the form policy.

The endorsement purported to delete subdivision (i) under "Persons Insured", as above-described. It also added amending language to the subdivision (c) exclusion, above-described, so that, as here pertinent, it was made to read:

"Exclusions

"This insurance does not apply:

"(c) to bodily injury to any employee of the insured arising out of and in the course of his employment by the insured . . . Except with respect to a claim by one employee of the named insured against another employee of the named insured arising out of the operation, maintenance or use of the automobile." (the matter added by the endorsement is underscored)

Subdivision (ii) remained unaffected by the endorsement.

The Justice presiding in the Superior Court found that the Continental policy, as modified by the endorsement, was ambiguous as to whether Whittier was given insurance protection as an "insured." Although the plain language of the endorsement removed from the form policy two of the "exclusions" applicable to Whittier, ambiguity existed because one exclusion appeared to have been permitted to remain: the exclusion, as an "insured" under the policy, of an employee who is operating an automobile Not owned by the State of Maine. Because of this ambiguity, arising from the endorsement's use of the word "automobile" without qualification, the presiding Justice admitted extrinsic testimony and documents to assist him in reaching a determination of the intention the...