Wiebel v. American Farmers Mut. Ins. Co.

• Decision Date: 17 April 1958
• Citation: 51 Del. 151,140 A.2d 712,1 Storey 151
• Parties: , 51 Del. 151 Frederick Jacob WIEBEL v. AMERICAN FARMERS MUTUAL INSURANCE COMPANY, an Illinois corporation; Robert D. Scherff; William C. Haggerty and Vivian C. Haggerty; Hazel A. Dulin, Administratrix of the Estate of Thomas Clayton Dulin, deceased, and Hazel A. Dulin. Robert D. SCHERFF v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, a corporation of the State of Connecticut; Frederick Jacob Wiebel and Madeline Wiebel, his wife; William C. Haggerty and Vivian C. Haggerty, his wife; Hazel A. Dulin, Administratrix of the Estate of Thomas Clayton Dulin, deceased, and Hazel A. Dulin.
• Court: Delaware Superior Court

Page 712

140 A.2d 712

1 Storey 151, 51 Del. 151

Frederick Jacob WIEBEL v. AMERICAN FARMERS MUTUAL INSURANCE COMPANY, an Illinois

corporation; Robert D. Scherff; William C. Haggerty and

Vivian C. Haggerty; Hazel A. Dulin, Administratrix of the

Estate of Thomas Clayton Dulin, deceased, and Hazel A. Dulin.

Robert D. SCHERFF v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, a corporation of

the State of Connecticut; Frederick Jacob Wiebel and

Madeline Wiebel, his wife; William C. Haggerty and Vivian C.

Haggerty, his wife; Hazel A. Dulin, Administratrix of the

Estate of Thomas Clayton Dulin, deceased, and Hazel A. Dulin.

Superior Court of Delaware, Kent County.

April 17, 1958.

Herman C. Brown, Dover, for American Farmers Mutual Ins. Co. and Robert D. Scherff.

Joseph H. Flanzer, Wilmington, for Hartford Accident and Indemnity Co. and Frederick Jacob Wiebel.

CHRISTIE, Judge.

On February 21, 1956, Robert D. Scherff came to the house of his neighbor, Frederick Jacob Wiebel, to obtain Wiebel's assistance in starting the Scherff automobile. Mr Wiebel took his automobile, the title to which was in his wife's name, and drove into the Sherff driveway where the Sherff vehicle was parked. Wiebel drove past the Scherff car in the driveway and turned around so that he faced toward the highway with the front of the Wiebel car facing the front of the Scherff car. The plan was that Weibel would use his car to push the Sherff automobile backwards out onto the highway. Wiebel was then to drive around the Scherff automobile and push it forward along the highway until its motor could be started. Wiebel did use his automobile to push the Scherff automobile along the driveway toward the highway. On account of the ruts and holes in the driveway the bumpers of the two vehicles became engaged.

The two men got out of their automobiles and disengaged the bumpers. It was then decided that since the bumpers were not meeting properly on the uneven driveway, they should push the Scherff automobile out onto the hard-surfaced highway by hand where the Wiebel automobile could again be used.

It is alleged that the two men then pushed the Scherff car a few feet by hand so that it protruded several inches onto the hard-surfaced highway. At this point an automobile coming along the highway struck the rear of the Scherff car. The driver was killed and a passenger was injured. Three civil suits have been filed on account of that accident and each charges both Scherff and Wiebel with negligence.

We are not concerned with the merits of the actions now pending against these men. The matter now before the Court is essentially a dispute between Scherff's insurance carrier and Wiebel's insurance carrier as to which must provide a defense for the two men. Wiebel seeks a declaratory judgment requiring American Farmers Mutual Insurance Company, Scherff's insurance carrier, to provide a defense for him in the pending tort actions. Scherff, in turn, seeks a declaratory judgment requiring Hartford Accident and Indemnity Company, Wiebel's insurance carrier, to provide a defense for him in the pending tort actions.

Each policy of insurance provides in effect that the insurance company will defend any suit against the owner of the automobile to which it applies or those using the automobile with the owner's permission where such suit arises out of 'the ownership, maintenance or use of the automobile'.

It is apparent that Scherff in pushing his own automobile just prior to the accident was 'using' his automobile and that Scherff's own carrier, American Farmers Mutual Insurance Company, must provide a defense for him in the suits brought against him.

The real controversy, however, surrounds Wiebel's participation. Although Wiebel's vehicle did not push the Scherff vehicle into the position where the accident occurred, it was used to push the Scherff automobile a moment before. Furthermore, the plan was to use the Wiebel automobile a moment later. Thus, says Scherff, the use of the Wiebel automobile was an inseparable part of the project, and any accident which occurred before the completion of such project and in connection therewith arises out of the 'use' of the Wiebel automobile.

Wiebel's carrier, in turn, contends that the accident and the tort suits against Wiebel cannot be said to have arisen out of 'the ownership, maintenance or use' of the Wiebel automobile since it was obviously not in use under any reasonable construction of the insurance contract.

American Farmers cites authority for the proposition that liability insurance on an automobile towing another vehicle covers damage caused when the towed vehicle breaks loose. Quality Dairy Co. v. Ft. Dearborn Casualty Underwriters, Mo.App. St. Louis 1929, 16 S.W.2d 613; 6 Blashfield Cyclopedia of Automobile Law and Practice § 3973.

American Farmers also cites American Fire and Casualty Co. v. Allstate Ins. Co. 4 Cir., 214 F.2d 523 where the carrier of a towed vehicle was held to share liability with the carrier of the towing vehicle. See also Merchants Co. v. Hartford Accident and Indemnity Co., 1939, 187...