Wheeler v. State Farm Mutual Automobile Ins. Co.

• Decision Date: 22 February 1971
• Docket Number: No. 317-70.,317-70.
• Citation: 438 F.2d 730
• Parties: Elmer F. WHEELER, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

438 F.2d 730 (1971)

Elmer F. WHEELER, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.

No. 317-70.

United States Court of Appeals, Tenth Circuit.

February 22, 1971.

C. J. Watts Oklahoma City, Okl. (Watts, Looney, Nichols & Johnson, Oklahoma City, Okl., of counsel, on the brief), for plaintiff-appellant.

Clayton B. Pierce, Oklahoma City, Okl. (Pierce, Duncan, Couch & Hendrickson, Oklahoma City, Okl., of counsel, on the brief), the defendant-appellee.

Before HILL and HOLLOWAY, Circuit Judges, and DOYLE, District Judge.

WILLIAM E. DOYLE, District Judge.

This is a declaratory judgment action which pertains to an automobile policy issued by State Farm Mutual Automobile Insurance Company to Jack W. Barron and Louise Barron. Plaintiff-Appellant would have us construe that policy and rule that it requires State Farm to defend and indemnify him by reason of suits filed against him by the persons named in the policy, that is to say, Jack W. Barron and Louise Barron.

The cause was tried to the court on a stipulation of facts, and this stipulation recites in substance that on January 6, 1968, there was in force a policy of automobile insurance issued by State Farm to Jack W. Barron and Louise Barron as the "named insured", covering the operation of a 1966 two-door Pontiac sedan, and further recites that on January 6, 1968, the automobile described in the policy was involved in an accident in Forrest County, Mississippi, and that at the time of the accident the automobile was being driven by Elmer F. Wheeler (Plaintiff-Appellant) with the permission of the named insured, Jack W. Barron and Louise Barron, who were occupants of the automobile. It is further stipulated that suits have been brought by Jack W. Barron and Louise Barron against Elmer F. Wheeler seeking to recover damages for personal injuries alleged to have been caused by the negligence of Wheeler. The suits were or are defended on behalf of Wheeler by counsel employed by the company having coverage for Wheeler on his personal car.

The jurisdictional facts were also stipulated, and the district court determined that it had jurisdiction of the cause.

The so-called coverage clause of the policy provides:

Coverage A-Bodily Injury Liability —

To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease including death at any time resulting therefrom sustained by other persons.

The exclusion clause which is also pertinent here contains this language:

This insurance does not apply under:

(i) Coverage A, to bodily injury to the insured or any member of the family of the insured residing in the same household as the insured.

The definition of "insured" contained in the policy includes one who was driving with consent of owners, i. e.:

(4) Any other person, while using the owned automobile, provided the operation and actual use of such automobile are with the permission of the named insured or such spouse and are within the scope of such permission.

Appellant was unquestionably using the automobile with the permission of the named insured, that is to say, the Barrons. Thus, if Wheeler were being sued by persons other than the "named insured", there could be no question but that State Farm would be obligated to defend and indemnify him. When, however, the suit is brought against him by the named insured in the policy it is a different case. Here he is indeed embraced within the term insured as it is defined in the policy, but it does not follow that he is entitled to the protection of the policy when he is being sued by the named insured.

As we read the policy as a whole, it is our conclusion that it was designed to protect the named insured and others within the definition of insured against actions by third persons. This is the plain meaning of the scope clause flowing from the provision protecting against bodily injuries "sustained by other persons" (emphasis supplied.) This beyond question states that the policy was not designed to cover injuries to the named insured even though some third persons, in this instance an outsider (who is a defined "insured"), was driving the vehicle at the time the injuries were suffered.

We need not consider the coverage clause alone as a guide to the intent of the parties. The exclusion clause also discloses that the named insured or any member of his family were not to be covered.

The appellant would have us hold that the insured is the named insured in the policy, but is not to be regarded as the insured (within the exclusion clause) when some third person was driving the vehicle with permission and the named insured was injured in a collision while it was so being driven. Such a construction would be strained and illogical.

In rejecting these present contentions the trial judge said:

The named insureds in the instant case are, by policy definition, insured persons and as such are excluded from coverage for their bodily injuries and the policy does not apply to same. Defendant did not undertake to provide coverage for the named insured, inasmuch as Coverage A extends only to bodily injuries of other persons. Inasmuch as Defe

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