Western Cas. & Sur. Co. v. Budig

• Decision Date: 08 December 1973
• Docket Number: No. 47091,47091
• Citation: 516 P.2d 939,213 Kan. 517
• Parties: , 66 A.L.R.3d 442 WESTERN CASUALTY & SURETY COMPANY, Appellant, v. Jack L. BUDIG et al., Appellees.
• Court: Kansas Supreme Court

Page 939

516 P.2d 939

213 Kan. 517, 66 A.L.R.3d 442

WESTERN CASUALTY & SURETY COMPANY, Appellant, v. Jack L. BUDIG et al., Appellees.

No. 47091.

Supreme Court of Kansas.

Dec. 8, 1973.

Syllabus by the Court

1. In the event of ambiguity or conflict in the policy provisions a policy of insurance is to be construed strictly against the insurer and in favor of the insured.

2. Language in a contract of insurance is ambiguous if the words used to express the meaning and intention of the parties are insufficient in a sense that the contract may be understood to reach two or more possible meanings.

3. Where 'automobile' is defined in a liability insurance policy in the broader generic sense as a 'motor vehicle' a motorcycle is included absent an exclusionary provision expressly to the contrary.

Norbert R. Dreiling and Dennis L. Bieker of Dreiling & Bieker, Hays, were on the brief for appellant.

Norman W. Jeter, Edward Larson and Joseph W. Jeter of Jeter & Larson, Hays, and John F. Hayes, Hutchinson, were on the brief for Ernest Hammerschmidt and Roger Hammerschmidt, appellees.

FROMME, Justice:

This is a declaratory judgment action brought to construe the provisions of a liability insurance policy issued to appellee Jack L. Budig covering a 1966 Buick Grand Sport automobile. On stipulated facts the district court held that the liability insurance policy afforded liability coverage to appellee under the provisions of the policy relating to use of other automobiles. Appellee was operating a borrowed motorcycle as a temporary substitute for the automobile described in the policy at the time the accident occurred. The Western Casualty & Surety Company appeals from the judgment affording such coverage.

The sole question presented on appeal is whether the liability insurance policy provided coverage while the insured was operating the motorcycle.

The insurance policy issued to Budig covered the use of a described automobile and extended liability insurance coverage further with respect to another automobile temporarily used by him as a substitute. The provision for coverage while using other automobile reads:

'If the named insured is an individual or husband and wife and if during the policy period such named insured, or the spouse of such individual if a resident of the same household, owns a private passenger automobile covered by this policy, such insurance as is afforded by this policy under coverages A, B (liability coverages) with respect to said automobile applies with respect to any other automobile, subject to the following provisions: (here follows certain limitations not pertinent to this case)' We note the word 'automobile' is used consistently throughout these insuring agreements and that insurance is extended while the insured is operating the described automobile or any other automobile used as a temporary substitute. Down to this point the terminology used in the policy appears to be clear and unambiguous. The word 'automobile' is used consistently and we would assume it is used in the popular sense. Normally the word automobile when used in the popular sense would exclude motor vehicles such as motorcycles.

However, the insuring agreement contains a definition section pertinent to the insurance agreement as follows:

'IV Automobile Defined, Trailers, Private Passenger Automobile, Two or More Automobiles, Including Automatic Insurance:

'(a) Automobile. Except with respect to division 2 of coverage C and except where stated to the contrary, the word 'automobile' means:

'(1) Described Automobile-the motor vehicle or trailer described in this policy;

'(d) Two or More Automobiles. When two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each, but a motor vehicle and a trailer or trailers attached thereto shall be held to be one automobile as respects limits of liability under coverages A and B and separate automobiles as respects limits of liability, including any deductible provisions, under coverage D, E, F, G, H, Iand J.' (We are here concerned with coverages A and B, liability coverages.)

This definition section refers to the described automobile and the motor vehicle or trailer described in this policy interchangeably. So it appears the word 'automobile' as previously used throughout the policy is not limited to the popular meaning of the word for in the definition section of the policy the larger generic term 'motor vehicle' is used to give further meaning to the word 'automobile'.

An insurance contract is the prime example of an adhesion contract possessing the distinctive characteristics of unequal bargaining strength between the seller and purchaser or the insurer and insured. See Stewart v. Preferred Fire Ins. Co., 206 Kan. 247, 249, 477 P.2d 966. The coverage, definitions and exclusions in today's standard insurance policy are predetermined by the insurance carrier long in advance of the individual insurance sale. The buyer's freedom of choice in selecting his policy is severely limited. Under these circumstances the law in its concern for even-minded fairness attempts to minimize the imbalance by means of a rule that in the event of ambiguity or conflict in the policy provisions a policy of insurance is to be construed strictly against the insurer and in favor of the insured. This rule has been consistently applied in Kansas. (See Gowing v. Great Plains Mutual Ins. Co., 207 Kan. 78, 483 P.2d 1072, and cases collected in 1-3 Hatcher's Kansas Digest (Perm.Supp.), Insurance, § 42, p. 542.)

Language in a contract of insurance is ambiguous if the words used to express the meaning and intention of the parties are insufficient in a sense that the contract may be understood to reach two or more possible meanings. (Wood v. Hatcher, 199 Kan. 238, 428 P.2d 799; Mays v. Middle Iowa Realty Corp., 202 Kan. 712, 452 P.2d 279.) The ambiguity in the present policy arises from the use of the generic term 'motor vehicle' to define the word 'automobile'.

Although an automobile in the popular sense does not include a motorcycle, a motorcycle is generally understood to be included in the broad generic term 'motor vehicle' when that term is used to define insurance coverage unless specifically excluded. The exclusions section of the present policy does not exclude coverage when the insured is operating or riding on a motorcycle.

In Clark v. Prudential Ins. Co., 204 Kan. 487, 464 P.2d 253, this court was called on to consider whether a person insured under a 'vehicle accident death benefit provision' in a life policy was excluded from coverage while riding on a motorcycle. The exclusionary provisions of the policy excluded coverage if the insured was driving a motor vehicle. In denying coverage to the insured it was there said:

'In this case the insured was struck by a motor vehicle but he was driving a motorcycle at the time. If a motorcycle is a motor vehicle, within the ordinary meaning thereof, then coverage under part (b) does not attach. We think an ordinary insured would commonly understand a motorcycle to be a motor vehicle. It is so defined by statute. (K.S.A. 8-126(d), 8-234(b), and 8-501, now K.S.A.1969 Supp.) We believe any ordinary insured would consider a motorcycle to be a vehicle driven by a motor and within the purview of the term 'motor vehicle." (p. 491, 464 P.2d p. 257)

In summary the court said:

'We believe the terms 'automobile,' 'motor vehicle' and 'vehicle' are of such common usage that an insured would understand the more limited aspects of the term 'automobile,' the broader facets of the term 'motor vehicle' and that the term 'vehicle' may include almost any means of conveying property or persons. . . .' (p. 492, 464 P.2d p. 257)

In Kansas Farm Bureau Ins. Co. v. Cool, 205 Kan. 567, 471 P.2d 352, this court was called on to construe the uninsured motorist coverage in an automobile insurance policy. In determining that a 'dune buggy', not equipped or licensed for use on public roads, was not within the meaning of 'automobile' as defined and used in the policy, we said:

'As a generic word, 'automobile' is broad enough to include all forms of self-propelling vehicles. However, the word is to be defined in a particular case from its association in the context and by considering the object or purpose of the instrument in which it is used. The manner in which a vehicle is used, as well as its construction, is an important factor in determining its character. . . .

'In Williams v. Standard Accident Ins. Co., 158 Cal.App.2d 506, 322 P.2d 1026, the court said:

"'. . . Automobile is general name adopted by popular approval of all forms of self-propelling vehicles for use on highways and streets, and is presumed to have been used in indemnity provision of accident policy in its common, general, and popular sense, in absence of proof to the contrary. . . .'' (p. 510, 322 P.2d 1029.)' (p. 574, 471 P.2d p. 357)

In Gowing v. Great Plains Mutual Ins. Co., supra, it is said:

'This court, also, has said that where an insurance company desires to limit its liability under a policy, it should employ such language as will clearly and distinctly reveal its stated purpose. (Miller v. Farmers Mutual Automobile Ins. Co., 179 Kan. 50, 55, 292 P.2d 711; Chicago, R. I. & Pac. Rld. Co. v. Aetna Ins. Co., 180 Kan. 730, 737, 308 P.2d 119.) Unclear and obscure clauses in a policy of insurance should not be permitted to defeat the coverage which is reasonably to be expected by the insured. (Sturdy v. Allied Mutual Ins. Co., 203 Kan. 783, 793, 457 P.2d 34.)' (207 Kan. 81, 483 P.2d 1075)

In the present case the insurance company could quite easily have used the term 'four wheel private passenger car' to define automobile. It did not do so. Likewise under the exclusions from coverage it could quite easily have excluded motorcycles from liability coverage the same as it excluded farm type tractors from non-insured motorist coverage. It did not do so. Consequent...