Winterwerp v. Allstate Ins. Co.

• Decision Date: 21 May 1976
• Docket Number: No. 152,152
• Citation: 277 Md. 714,357 A.2d 350
• Parties: Carl J. WINTERWERP v. ALLSTATE INSURANCE COMPANY.
• Court: Maryland Court of Appeals

Page 714

277 Md. 714

357 A.2d 350

Carl J. WINTERWERP v. ALLSTATE INSURANCE COMPANY.

No. 152.

Court of Appeals of Maryland.

May 21, 1976.

Karl G. Feissner and Ronald S. Schimel, Hyattsville (Feissner, Garrity, Levan & Schimel, Hyattsville, on the brief), for appellant.

James T. Wharton, Rockville (McCarthy & Wharton, Rockville, on the brief), for appellee.

Argued March 4, 1976 before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

Reargued May 5, 1976 before MURPHY, C. J., and SINGLEY, SMITH, DIGGES and LEVINE, JJ., and JERROLD V. POWERS, Special Judge.

LEVINE, Judge.

This appeal is from a decision of the Circuit Court for Prince George's County (Mathias, J.) in a declaratory judgment action brought by appellant, Carl J. Winterwerp (the insured), against appellee, Allstate Insurance Company (Allstate), the insurer. The court declared that the policy issued by Allstate did not cover the insured, a volunteer fireman, in connection with his operation of a vehicle owned by Baden Volunteer Fire Department (Baden). From that decision, the insured appealed and we granted certiorari prior to a consideration of the case by the Court of Special Appeals. We affirm.

On July 10, 1973, a Ford open-body truck called a 'brush wagon,' owned by Baden, was involved in an accident while being operated by the insured in response to an emergency call. The truck, which was capable of carrying ten persons, bore a two-ton weight designation, had an empty gross vehicle weight of 14,209 pounds, a maximum gross vehicle weight of 21,000 pounds, 6 wheels and an overall length of 21 feet. It was painted the traditional red and included such firefighting equipment as a 300 gallon-per-minute pump with 150 linear feet of 1 1/2 inch hose and two 100 foot booster reels of hose, plus the usual trappings identifying it as an emergency vehicle. Baden owned six emergency vehicles in all, including the brush wagon, two class A pumpers, a tanker, an ambulance, and a jeep, which were used in varying combinations depending on the nature and extent of the particular emergency to which they were responding. It also owned a utility truck.

The insured was one of 10 to 12 volunteers who were certified as drivers of the Baden vehicles, a status he had achieved only after a period of training conducted by his superiors. He was, in addition, in possession of a class B Maryland operator's license permitting him to drive vehicles over 20,000 pounds. The driver assignments to the various vehicles being employed on a specific occasion were governed by the order in which the certified drivers choosing to respond to a particular emergency arrived at the station. Baden's records disclosed that during the two-year period preceding the accident the insured had driven one or another of its vehicles on 70 emergency 'runs,' and on 10 of these occasions he had driven the 'brush truck.' During the same period, approximately 2,000 emergency trips had been made in the six vehicles.

As a consequence of the July 10 accident, another volunteer member of the company made a personal injury claim against the insured. It was some months later that the insured turned to Allstate after learning that the company insuring the Baden vehicles would not extend coverage to him, apparently because its insurance policy excluded claims made by fellow volunteers. At the time of the accident, there was in effect an Allstate policy covering three vehicles owned by the insured: an automobile, a camping trailer and a pick-up truck.

Allstate disclaimed liability under the policy primarily on the grounds that the fire truck was neither specifically covered in the policy, nor was it a 'non-owned automobile' to which coverage was extended, defined in the policy as 'an automobile, including a trailer, not owned by, or furnished or available for the regular use of, the named insured or any resident of his household other than a temporary substitute automobile, provided the use thereof is with the permission of the owner.' (emphasis added). In ruling that the Allstate policy did not cover the insured for the accident in question, the trial judge agreed that the fire truck was 'furnished or available for the regular use of, the named insured,' a conclusion in which we concur. He further ruled that the truck did not meet the policy definition of an 'automobile,' 'a land motor vehicle designed for use principally upon public roads,' posing an issue which we find unnecessary to reach.

In urging reversal, the insured initially contends that the definition of a 'non-owned automobile' is ambiguous and, therefore, should be 'construed most narrowly' against Allstate. He places sole reliance for this contention on Ricci v. United States Fidelity and Guaranty Co., 110 R.I. 68, 290 A.2d 408, 413 (1972), where the court held that the words 'furnished for the regular use of . . . the Named Insured' in a policy were ambiguous, and therefore construed the policy strictly against the insurance company which had issued it. In doing so, it upheld an interpretation of the lower court which ruled that the insured was afforded coverage under the policy.

That decision of the Rhode Island court is at variance with our holding in Allstate v. Humphrey, 246 Md. 492, 496, 229 A.2d 70 (1967), where the policy provision in dispute, containing the clause "not regularly furnished for use of such relative," was found to be unambiguous. We noted there that absent an ambiguity, Maryland has not adopted the rule followed in many jurisdictions that an insurance policy is to be most strongly construed against the insurer. See also Ebert v. Millers Fire Ins. Co., 220 Md. 602, 611, 155 A.2d 484 (1959). In Humphrey, we also applied the rule that where the facts pertinent to the question of coverage are undisputed, the issue is one of construction in light of the language employed in the contract, the subject matter and the surrounding circumstances.

Here, then, since the facts are undisputed, construction of the clause presents a question of law for the court. Further we are not persuaded that the disputed language is ambiguous, since we find the clause neither uncertain in its general meaning nor subject to construction in alternate ways. Allstate v. Humphrey, supra; Coombs v. Lumbermen's Mutual Casualty Company, 23 Ariz.App. 207, 531 P.2d 1145, 1147 (1975); Bringle v. Economy Fire & Casualty Company, 169 N.W.2d 879, 883 (Iowa 1969); Kenney v. Employers' Liability Assurance Corp., 5 Ohio St.2d 131, 214 N.E.2d 219, 221 (1966); Quesenberry v. Nichols, 208 Va. 667, 159 S.E.2d 636, 641 (1968); contra, Dairyland Insurance Company v. Ward, 83 Wash.2d 353, 517 P.2d 966, 969 (1974). As Judge Oppenheimer aptly stated for the Court in Humphrey, the fact '(t)hat a term cannot be precisely defined so as to make clear its application in all varying factual situations does not mean that it is ambiguous.' In light of our conclusion that the language in controversy is not ambiguous, there is no basis for construing it strictly against the insurer.

The cases in which other courts have construed the words 'furnished or available for the regular use of the insured,' or similar language, are numerous indeed. The view which we share with many of those courts, and which we expressed in Allstate v. Humphrey, supra, 246 Md. at 499, 229 A.2d 70, is that no hard and fast rule has been or can be established for resolving the issue. Each case must, in the final analysis, stand or fall upon its own facts. Virtually all courts which have expressed themselves upon the matter agree on the purpose of the clause involved here. No statement we have found regarding this purpose appears to have been more widely quoted or cited than that of Judge Chesnut in Aler v. Travelers Indemnity Co., 92 F.Supp. 620, 623 (D.Md.1950), where, confronted with the words 'furnished for regular use to the named insured,' he said:

'. . . The general purpose and effect of this provision of the policy is to give coverage to the insured while engaged in the only infrequent or merely casual use of an automobile other than the one described in the policy, but not to cover him against personal liability with respect to his use of another automobile which he frequently uses or has the opportunity to do so.' (emphasis added).

In construing the word 'regular,' as used in the 'drive other automobile clause,' most courts, as we did in Allstate v. Humphrey, supra, 246 Md. at 497, 229 A.2d 70, have given that term its plain and ordinary meaning. In Humphrey, we suggested that the word 'regular' was the antonym of 'casual' or 'occasional'; and meant "steady or uniform in course, practice, or occurrence; . . . steadily pursued; . . . functioning at proper intervals; . . . recurring . . . at stated, fixed, or uniform intervals." The insured argues that his use of the Baden equipment was not 'regular,' since he had driven the 'brush wagon' only ten times in the two-year period preceding the accident. Furthermore, he contends that whether he drove the equipment was a matter of 'chance' because it depended on whether he responded to an alarm and, if so, whether he was among the certified drivers who arrived in time to operate any of the equipment required in that instance. In our view, this argument begs the question.

We consider the question in light of the evidence that, while the insured had driven the 'brush wagon' only ten times within a two-year period, he had operated one of the six vehicles employed in emergencies on 70 trips during that same period. It is a well-settled proposition that an automobile will be excluded under a 'drive other automobile' clause even though it is only one of a group of vehicles furnished or made available for the regular use of the named insured. Farm Bureau Mutual Automobile Ins. Co. v. Marr, 128 F.Supp. 67, 69 (D.N.J.1955); Bringle v. Economy Fire & Casualty Company, supra, 169 N.W.2d at 883; Ruggiero v. Globe Indemnity...