Universal Underwriters Ins. Co. v. Dairyland Mut. Ins. Co.
| Decision Date | 24 November 1967 |
| Docket Number | No. 8999-PR,8999-PR |
| Citation | 102 Ariz. 518,433 P.2d 966 |
| Parties | UNIVERSAL UNDERWRITERS INSURANCE COMPANY, a Missouri corporation, Appellant, v. DAIRYLAND MUTUAL INSURANCE COMPANY, a Wisconsin corporation, Appellee. . In Banc |
| Court | Arizona Supreme Court |
O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, and Ralph E. Hunsaker, Phoenix, for appellant.
Minne & Sorenson, Phoenix, for appellee.
Thomas Nugent, Jr., sustained injuries as the result of an automobile accident in which his vehicle was struck by a vehicle owned by one Justine Meyer. The Meyer vehicle was then being operated and was under the control of Eugene Jones, an employee of Fletcher Jones Phoenix, a corporation, which had possession for the purpose of making repairs.
Meyer carried a policy of automobile casuality insurance with the Dairyland Mutual Insurance Company. The coverage included any person using the vehicle with permission of the insured. Dairyland, however, refused to defend the subsequent lawsuit. Universal Underwriters, a stock insurance company, insured Fletcher Jones Phoenix. It undertook the defense and, after judgment, settled the lawsuit. The present action is by Universal Underwriters against Dairyland to recover the amount of judgment, plus attorney fees and defense costs. The trial court rendered judgment for Dairyland and, on appeal, the Court of Appeals affirmed. 5 Ariz.App. 174, 424 P.2d 465; 5 Ariz.App. 296, 425 P.2d 866. Opinions of the Court of Appeals vacated.
Dairyland's policy provided that it did not apply 'to any person or organization, or to any agent or employee thereof, operating an automobile sales agency, repair shop, * * * with respect to any accident arising out of the operation thereof * * *.' From this, Dairyland argues that there was no coverage afforded at the time of the accident since the vehicle was being driven by an employee of Fletcher Jones Phoenix. In Jenkins v. Mayflower, 93 Ariz. 287, 380 P.2d 145, we held that the omnibus clause, A.R.S. § 28--1170, subsec. B, 2, is a part of every automobile liability policy in Arizona and that such exclusionary clauses are invalid and void. See also Sandoval v. Chenoweth, 102 Ariz. 241, 428 P.2d 98; and Dairyland Mutual Insurance Co. v. Andersen, 102 Ariz. ---, 433 P.2d 963 ().
Universal's policy provided that the insurance afforded non-owned vehicles 'shall be excess insurance over any other valid and collectible insurance * * *.' We have examined the provisions of the two policies and are satisfied that...
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