Wing Mah v. U.S. Fire Ins. Co.

• Decision Date: 24 January 1976
• Docket Number: No. 47792,47792
• Citation: Wing Mah v. U.S. Fire Ins. Co., 545 P.2d 366, 218 Kan. 583 (Kan. 1976)
• Parties: WING MAH, Appellant, v. The UNITED STATES FIRE INSURANCE COMPANY, Appellee.
• Court: Kansas Supreme Court

Page 366

545 P.2d 366

218 Kan. 583

WING MAH, Appellant, v. The UNITED STATES FIRE INSURANCE COMPANY, Appellee.

No. 47792.

Supreme Court of Kansas.

Jan. 24, 1976.

Syllabus by the Court

1. A court in construing an insurance policy, should consider the instrument as a whole and endeavor to ascertain the intent of the parties from the language used, taking into account the situation of the parties, the nature of the subject matter and the purpose to be accomplished.

2. Insurance policies must be construed according to the sense and meaning of the terms used, and if the language is clear and unambiguous, it must be taken in its plain, ordinary and popular sense.

3. When an insurance contract is not ambiguous, it must be enforced as made.

4. Where the insuring agreement of an insurance policy is challenged as ambiguous, and the facts are not in dispute, the policy is reviewed in the light of the rules for construction of insurance policies, and it is held: the policy is not ambiguous, the geographic limitation appearing on the face of the policy applies to all coverages; and the district court did not err in entering summary judgment.

Jerry R. Palmer, Topeka, argued the cause and was on the brief for appellant.

Donald Patterson of Fisher, Patterson, Sayler & Smith, Topeka argued the cause and was on the brief for appellee.

MILLER, Justice:

This is an action by a policyholder against an insurance company for breach of a fire and extended coverage policy, insuring his mobile home which was damaged in transit. Wing Mah, the plaintiff-appellant, is the policyholder. The United States Fire Insurance Company, defendant-appellee, wrote the policy. The trial court determined certain questions of law, and then sustained the company's motion for summary judgment. The policyholder appeals.

We are concerned here with an insuring agreement and not with an exclusion. The insuring clause on the face of the policy contains a geographic limitation. The principal problem to be determined is whether this geographic limitation is applicable to the extended coverage endorsement. Plaintiff claims that the policy is ambiguous, that the limitation is inapplicable to the extended coverage endorsement, and that the trial court erred in entering summary judgment. Defendant claims that the policy is clear and unambiguous, that the geographic limitation does apply to all coverages, and that the entry of summary judgment was proper.

The facts are not in dispute. Plaintiff owned a 'Buddy' mobile home. While plaintiff was living in the mobile home at 1025 E-Z Avenue, Lazy Acres, Dodge City, Kansas, defendant issued its policy of fire and extended coverage insurance thereon. Later, and during the policy period, plaintiff was transferred to Topeka, Kansas. He engaged the A-1 Mobile Homes Company to move the home for him. While the home was in transit, a wheel of the towing tractor came off, struck the mobile home and inflicted extensive damage. The accident occurred on I-70 highway near its intersection with K-177 highway in Geary County, Kansas. Plaintiff made claim under the policy. Coverage was denied because 'the insuring agreement excludes coverage on the trailer while it is in transit unless it is being removed from the location described in the policy . . . for the purpose of protecting it against the perils insured against.' This lawsuit followed.

Involved is a Standard Fire Insurance Policy. The printed caption indicates that the form is in use in 46 states-including Kansas-and the District of Columbia. The face of the policy shows the total amount of insurance to be $10,700; the premium to be $102 for fire and lightning, plus $52 for extended coverage, total $154; and it shows the amount of fire or fire and extended coverage insurance provided to be $8,700 on the mobile home and $2,000 on the contents. Under 'Description and Location of Property Covered' the facr of the policy recites:

'On 1973 Buddy Mobile Home 14' X 70' Serial #BK 112F situated 1025 E-Z Avenue, Lazy Acres, Dodge City, Kansas. Owner occupied.

Class 10

'On Contents situated in the above described Mobile Home.'

The concluding paragraph on that page reads in applicable paft as follows:

'IN CONSIDERATION OF THE PROVISION AND STIPULATIONS

HEREIN OR ADDED HERETO AND OF the premium above specified, this Company, . . . at location of property involved, . . . does insure the insured named above . . . against all DIRECT LOSS BY FIRE, LIGHTNING AND BY REMOVAL FROM PREMISES ENDANGERED BY THE PERILS INSURED AGAINST IN THIS POLICY, EXCEPT AS HEREINAFTER PROVIDED, to the property described herein while located or contained as described in this policy, . . . but not elsewhere.' (Emphasis supplied.)

Attached to and forming a part of the policy is U. F. Form No. 49 (Edition Jan. '68) entitled DWELLING BUILDING(S) AND CONTENTS FORM. So far as it is here applicable, this form provides:

'DWELLING BUILDING(S) AND CONTENTS FORM

'Insurance attaches only to those items specifically described in this policy for which a specific amount is shown and, unless otherwise provided, all conditions of this form and the provisions of the policy to which it is attached shall apply separately to each item covered. (Emphasis supplied.)

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'SECTION I-DESCRIPTION OF COVERAGE

'A. DWELLING COVERAGE . . .

'B. PRIVATE STRUCTURES COVERAGE . . .

'C. CONTENTS COVERAGE . . .

'As to 'Contents'--

'(1) If, during the term of this policy, such (househld and personal) property is removed to another location which is within this state and occupied in whole or in part as the Insured's residence, this policy shall cover such property while at such new location up to the amount applicable to contents and shall cease to cover at the former location, except that during the period of removal this policy shall cover at each location in the proportion that the value of such property at each location bears to the aggregate value at both locations.

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'SECTION II-PERILS INSURED AGAINST

'This policy insures against all direct loss caused by:

'1. FIRE AND LIGHTNING . . .

'2. REMOVAL . . .

'3. INHERENT EXPLOSION . . .

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* * *

'This policy is extended to insure against loss by the following perils as hereinafter provided, only when rate and premium for EXTENDED COVERAGE are inserted in the spaces provided on the first page of this policy or endorsed hereon.

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'7. AIRCRAFT AND VEHICLES, meaning only direct loss resulting from actual physical contact of . . . a vehicle with the property covered hereunder or with the building(s) containing the property covered hereunder . . . This Company shall not be liable for loss: (a) by any vehicle owned or operated by an Insured or by any tenant of the described premises; (b) by any vehicle to fences, driveways, walks or lawns, trees, shrubs or plants.

'C. OFF PREMISES CONTENTS:

The Insured may apply up to 10% of the amount of insurance applicable to the contents covered under this policy . . . to cover loss to contents . . . while elsewhere than on the described premises but within the limits of that part of Continental North America included within the United States of America and Canada, and in the State of Hawaii. This extension of coverage shall not inure directly or indirectly to the benefit of any carrier or other bailee.'

Plaintiff contends that his loss falls within the coverage provided by paragraph 7, AIRCRAFT AND VEHICLES, above; and that such coverage contains, and is subject to, no restrictive geographical requirement. We should point out that there is no contention that the loss falls within the coverage for REMOVAL FROM PREMISES ENDANGERED BY THE PERILS INSURED AGAINST. The mobile home was not being moved for any such cause.

The trial court, in a carefully prepared and comprehensive memorandum, held that the policy was not ambiguous and that it did not cover damage from vehicles unless the mobile home was located at 1025 E-Z Avenue, Lazy Acres, Dodge City, Kansas, at the time of the loss. Plaintiff contends that location is not a requisite of the extended coverage provided by the policy; defendant claims that it is. Before turning to the policy provisions, we should first review the general rules for the construction of insurance policies.

'In construing an insurance policy a court should consider the instrument as a whole and endeavor to ascertain the intention of the parties from the language used, taking into account the situation of the parties, the nature of the subject matter and the purpose to be accomplished. . . .

'Policies must be construed according to the sense and meaning of the terms used, and if the language is clear and unambiguous, it must be taken in its plain, ordinary and...