Wilson v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 05 May 1964
• Docket Number: No. 51262,51262
• Citation: 128 N.W.2d 218,256 Iowa 844
• Parties: Delores WILSON, Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant.
• Court: Iowa Supreme Court

Page 218

128 N.W.2d 218

256 Iowa 844

Delores WILSON, Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant.

No. 51262.

Supreme Court of Iowa.

May 5, 1964.

Rehearing Denied July 15, 1964.

Ross H. Sidney, Thomas W. Carpenter, of Austin, Grefe & Sidney, Des Moines, for appellant.

W. W. Reynoldson, R. E. Killmar, of Killmar, Reynoldson & Harvey, Osceola, for appellee.

HAYS, Justice.

An insurance policy issued by defendant to Gary Wilson and Delores Wilson contained the following provisions:

'Insuring Agreement IV * * * Coverage S. Division I--Death Indemnity. To pay the principal sum stated * * * in event of the death of each insured which shall result directly and independently of all other causes from bodily injury caused by accident and sustained by the insured while occupying or through being struck by an automobile * * *.' It further provided: 'Exclusions--Insuring Agreement IV does not apply: (a) to bodily injury sustained in the course of his occupation by any person while engaged (1) in duties incident to the operation, loading or unloading of, or as an assistant on a public or livery conveyance or commercial automobile, or (2) in duties incident to the repair or servicing of automobiles'.

The plaintiff's petition, in a law action tried to the court, alleged the death of Gary Wilson when struck by a car and asked judgment for the face of the policy. Defendant's answer admitted that Gary Wilson died as result of being crushed by a commercial automobile operated at the time by said Wilson. Defendant then denies coverage under Coverage S because of the exclusion of bodily injuries sustained in the course of the occupation of any person while engaged in the operation of a commercial automobile.

The trial court held the provisions of the policy were ambiguous; allowed full recovery by the plaintiff, and defendant appeals.

The facts are not in dispute. Decedent was in the employment of Borden Dairy of Des Moines, Iowa, as a retail route salesman, delivering milk from house to house in Osceola, Iowa. The truck used for such delivery was owned by Borden. It would be loaded early in the morning from another truck which brought milk from Des Moines. The driver would then drive his route, stopping at a house, taking into it the milk needed, drive on to the next house and repeat the operation. He would often exchange full bottles for empties. On the day in question the temperature was below zero and the streets were snow and ice packed. He was delivering along Temple Street which runs north and south. This street at the place in question has an incline to the north. Decedent approached the home of one Yost from the north and when he arrived opposite the house, stopped the truck, opened the door and alighted with the bottles of milk to be delivered to the Yost house. He closed the door of the truck and had gone some four or five feet toward the house when the truck started backing down the incline to the north. Decedent immediately chased after it and had gone some seventy feet, running along side and trying to get control of it, when it took a sharp turn, overturned upon decedent crushing him to death.

Appellant assigns but one error which is of an omnibus nature and is as follows: 'The trial court erred in holding that the exclusionary language applicable to the coverage involved in the policy did not apply because it was ambiguous and uncertain, and that the factual situation and circumstances surrounding said plaintiff's decedent's death did not fall within the exclusionary language.'

I. The rule is clear that special limitations or exclusions on the right to recover under a policy of accident insurance, inserted in the policy after the general insurance clause, is an affirmative defense which must be pleaded and established by the Insurer. Carpenter v. Iowa State Traveling Men's Assn., 213 Iowa 1001, 240 N.W. 639; Brush v. Washington National Ins. Co., 230 Iowa 872, 299 N.W. 403; In 29A Am.Jur. Insurance, sec. 1854, it is said 'The principle generally applied by the courts is that if proof is made of a loss apparently within a contract of insurance, the burden is upon the insurer to prove that the loss arose from a cause of loss which is excepted or for which it is not liable, or from a cause which limits its liability'; Hiatt v. Travelers Ins. Co., 197 Iowa 153, 197 N.W. 3, 33 A.L.R. 655. Thus under above stated rule the sole issue before the trial court was whether the bodily injury, resulting in insured's death, was sustained in the course of the occupation of decedent while engaged in duties incident to the operation of a commercial automobile. While the trial court discusses and the appellant here argues other exclusion exceptions, i. e., loading or unloading a commercial automobile, such, not have been affirmatively pleaded, are not before the trial court nor this court.

II. An instrument is deemed to be ambiguous when the language thereof is capable of being reasonably understood in either of two or more possible senses. As said in Pederson v. Bring, 254 Iowa 288, 117 N.W.2d 509, an ambiguity exists when a genuine doubt appears as to the meaning of the contract. It is the general rule that where insurance contracts are ambiguous or require interpretation, or are fairly susceptible of two different constructions, the courts will adopt that construction most favorable to the insured. In other words, the courts will give that construction to an accident policy, if the language fairly admits, as will make it of value and carry out the intention expressed therein that liability is incurred where death occurs from accidental injury. Brush v. Washington National Ins. Co., supra; Walters v. Mut. Benefit Health & Accident Assn., 208 Iowa 894, 224 N.W. 494', Mallinger v. State Farm Mut. Auto. Ins. Co., 253 Iowa 222, 111 N.W.2d 647. The trial court in holding the 'Exclusionary Clause' to be ambiguous adopted the yard stick of 'whether or not decedent as a reasonably prudent layman, would have understood and intended that this exclusion would prevent recovery under this policy in the particular fact situation confronting the court,' citing Umbarger v. State Farm Mut. Auto. Ins. Co., 218 Iowa 203, 254 N.W. 87. See also, New York Life Ins. Co., v. Rotman, 231 Iowa 1249, 3 N.W.2d 603; Couch on Insurance, 2d, sec. 15:83.

Is the Exclusionary clause ambiguous as applied to the operation. It states 'to bodily injuries sustained in the course of his occupation by any person while engaged (1) in duties incident to the operation * * *'.

It may be conceded that decedent was acting in the course of his occupation at the time of his injury. The record shows Workman's Compensation has been awarded. This is not enough to bar recovery on the Insurance policy as the policy specifically provides 'while engaged in duties, incident to the operation * * *'. What does this provision mean? 'While engaged in', according to appellant means occupied, employed; and has the same meaning as is usual under the Workman's Compensation Act; according to Appellee, the term connotes action. Allied Mutual Casualty Company v. Dahl, Iowa, 122 N.W.2d 270. The term 'duties' has a varied meaning. According to appellant it means a moral obligation; according to Appellee, it means a legal or contractual obligation. Either use may be proper dependant upon the intention of the users. 'Incident' as used by both appellant and appellee appears to mean 'something incident to something else,' citing Webster, and also means 'a thing which, either usually or naturally and inseparably depends upon, appertains to, or follows another that is more worthy.' 2 Bouvier's Law Dict. Rawles 3rd Revision, p. 1527. The term 'operation' has been construed various ways by the courts. As stated by Appellant the term 'operation' does not, of necessity, require the presence of an individual in the vehicle or in control of the same. This is true but it is likewise true that the term 'operation' may have such a meaning. Horst v. Holtzen, 249 Iowa 958, 967, 90 N.W.2d 41. Which one was intended?

From the foregoing statements it is abundantly clear that the 'Exclusionary Clause' creates a genuine doubt as to which meaning is intended and an ambiguity exists. Pederson v. Bring, supra. Under the rules above stated, it was the duty of the trial court to give to such words a meaning, if the language permits, as will carry out the provisions expressed in the coverage clause of the policy. The trial court held that decedent at the time of his death, in running after the moving milk truck, was not 'engaged in duties incidental to the operation of the truck' within the contemplation of the parties. We think the language used is clearly susceptible of the interpretation placed thereon by the trial court. See Kingpin, Inc. v. Hillcrest Development, Minn., 126 N.W.2d 435.

It will be noted that the exclusionary clause also includes 'duties incident to loading or unloading the truck'. This is not pleaded as a defense. However, since both the court and the parties comment somewhat upon this provision, we wish to state that the meaning of the term 'unloading', which is claimed to be applicable, is ambiguous. See 7 Am.Jur.2d Automobile Insurance, sections 87-88; 160 A.L.R. 1259, and required the construction thereof by the court. We agree such term is not applicable to the facts in issue.

Under the record this court could not as a matter of law say that decedent met his death while engaged in duties incident to the operation, loading or unloading of a commercial automobile within the purview of said 'Exclusionary Clause'.

The judgment of the trial court is affirmed.

Affirmed.

GARFIELD, C. J., and PETERSON, THORNTON and LARSON, JJ., concur.

THOMPSON, SNELL, MOORE and STUART, JJ., dissent.

THOMPSON, Justice (dissenting):

With great respect, I dissent.

The majority opinion, as with the argument for the plaintiff and the holding of the trial court,...