Town & Country Mut. Ins. Co. v. Owens, 20729

Decision Date15 November 1968
Docket NumberNo. 20729,No. 2,20729,2
Citation143 Ind.App. 522,241 N.E.2d 368
CourtIndiana Appellate Court
PartiesTOWN & COUNTRY MUTUAL INSURANCE COMPANY, a Corporation, and Johnny Leland Perdue, Appellants, v. Earl OWENS, as Administrator of the Estate of Randall Owens, Deceased; Manchester Insurance and Indemnity Company, a Corporation; John Harlow; Charles R. Bailey; and American Security Insurance Company, a Corporation, Appellees

Kitley, Schreckengast & Davis, Beech Grove, for appellants.

Ice, Miller, Donadio & Ryan, Indianapolis, for appellees.

PER CURIAM.

This action originated as a suit for declaratory judgment, requesting the construction of automobile liability policies issued by the appellant, Town & Country Mutual Insurance Company, and by the appellee, Manchester Insurance and Indemnity Company. The general question presented is one of determining the respective rights and liabilities of these two insurance companies.

The appellant, Town & Country, issued an automobile liability policy to the appellant, Johnny Leland Perdue, and appellee, Manchester Insurance, issued an automobile liability policy to the appellee, Earl Owens' decedent, Randall Owens. Both policies were in full force and effect at all times relevant hereto.

The appellant, Perdue, was involved in an autmobile collision while operating the vehicle owned by Owens. Owens, and appellee Harlan, were passengers in the automobile at the time of the collision. The other vehicle we operated by appellee Bailey. Appellee American Security Insurance, Bailey's insurer, maintains that it has a subrogated interest in the litigation.

Appellee Manchester Insurance had added an endorsement, agreed to by their insured, which was included in the policy, limiting the so-called 'omnibus clause' by removing the definition of 'insured' contained in their standard policy and inserting in the place thereof:

'It is hereby understood and agreed that the insurance agreement 'definition of insured' is eliminated and such insurance as is afforded by the policy applies only to the named insured or members of his or her immediate family. Except on occasion when on a trip, and someone may relieve Owens, with Owens in the car.' (Emphasis added.)

On only question presented to this court is the interpretation of the emphasized sentence above, and thus, whether the appellant Perdue was covered under the terms of the liability policy and the attached endorsement issued by Manchester.

The parties agree that if the Manchester policy is applicable it will afford primary coverage and Town & Country will provide excess coverage.

The trial court found that the Manchester policy did not cover Perdue at the time of the accident and that therefore Town & Country was primarily liable.

The appellants filed their motion for new trial, which was overruled. The overruling of the motion for new trial is the sole assignment of error relied upon, on this appeal. Specifically, the appellant urges that:

1. The decision is not sustained by sufficient evidence, and

2. The decision is contrary to law.

Three questions must be answered affirmatively if this cause is to be reversed. These questions are:

1. Was the decedent Owens on a trip?

2. Was the appellant Perdue relieving the decedent Owens at the time of the collision?

3. Was Owens in the car at the time of the collision?

The parties agree that Owens was in the car at the time and so only the first two questions remain for our consideration.

The only facts relevant to a determination of this case are that the parties were traveling approximately seventeen blocks from one part of New Castle to another. Perdue drove this entire distance, and the decedent Owens was a passenger in the car and was eating sauerkraut.

The appellant suggests that the fact the decedent Owens was eating sauerkraut at the...

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8 cases
  • Nationwide Mut. Ins. Co. v. Neville, 1-481A104
    • United States
    • Indiana Appellate Court
    • April 29, 1982
    ...party who has drawn the instrument when there is an ambiguity is a correct statement of the law. See Town & Country Mutual Insurance Co. v. Owens, (1968) 143 Ind.App. 522, 241 N.E.2d 368, trans. denied (1969); Wabash Life Insurance Co. v. Hacker, (1960) 130 Ind.App. 342, 164 N.E.2d 666. We ......
  • American States Ins. Co. v. Aetna Life & Cas. Co.
    • United States
    • Indiana Appellate Court
    • August 21, 1978
    ...of the policy; it may not find coverage unless the language of the policy admits liability. Town & Country Mutual Insurance Company v. Owens (1968), 143 Ind.App. 522, 241 N.E.2d 368. An unambiguous insurance policy must be enforced according to its terms, even those which limit the insurer'......
  • Leist v. Auto Owners Ins. Co.
    • United States
    • Indiana Appellate Court
    • June 6, 1974
    ...regulating insurance have traditionally been interpreted most favorably to the insured. See, Town and Country Mutual Insurance Co. v. Owens, Admr. et al., (1969) 143 Ind.App. 522, 241 N.E.2d 368; Red 73 Creamery, Inc. v. Lumbermen's Mutual Casualty Co., (1966) 138 Ind.App. 273, 209 N.E.2d A......
  • Federal Ins. Co. v. Stroh Brewing Co.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • September 19, 1997
    ...common sense, and blindly afford coverage where it is questionable that any coverage was so intended." Town & Country Mut. Ins. Co. v. Owens, 143 Ind.App. 522, 241 N.E.2d 368, 370 (1968) (holding that "journey of seventeen blocks from one part of a small town to another was not a 'trip,' " ......
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