Wojtkowski v. Shelter Ins. Companies, 67016
| Decision Date | 17 December 1985 |
| Docket Number | No. 67016,67016 |
| Citation | 702 S.W.2d 74 |
| Parties | Walter J. WOJTKOWSKI, Plaintiff-Respondent, v. SHELTER INSURANCE COMPANIES, et al., Defendants-Appellants. |
| Court | Missouri Supreme Court |
John Singleton, James E. Godfrey, St. Louis, for defendants-appellants.
Richard L. Murray, Clayton, for plaintiff-respondent.
This case was transferred here by this Court from the Missouri Court of Appeals, Eastern District, and we decide it the same as on original appeal. Mo. Const. art. V, § 10. The facts of the case as they appear in the principal opinion written in the Court of Appeals (Carl R. Gaertner, J.) are set forth with minor changes without quotation marks.
Defendant-insurer appeals from a judgment declaring that the plaintiff was insured for liability arising out of a vehicular collision while he was driving an El Camino pickup owned by William Hildebrand.
Plaintiff filed a petition for declaratory judgment alleging that he was involved in an automobile accident in the City of St. Louis for which he had been sued by three individuals. He further alleged that defendant-insurer had issued a policy insuring plaintiff against loss but that defendant-insurer refused to defend him and denied liability because the non-owned automobile he was driving was available for regular use and hence not covered under the policy. He requested the court declare that "plaintiff was covered by the insurance policy" and to order defendant-insurer to defend plaintiff on said lawsuits.
The parties stipulated that the policy was in force and effect on May 22, 1982, the date of the accident. Plaintiff testified at the hearing as well as by deposition. The only other witness, William Hildebrand, testified by deposition.
The automobile liability policy provided that the defendant-insurer would pay on behalf of the insured "all sums which the insured shall become legally obligated to pay as damages caused by an accident and arising out of the * * * use of * * * a non-owned automobile * * *." A non-owned automobile is defined in the policy as "any automobile other than (a) the described automobile, or (b) an automobile owned in whole or in part by, or furnished or available for regular use of, either the named Insured or any resident of the same household."
In the spring of 1982, plaintiff was in the process of remodeling his basement. About a month before the accident, he was at the restaurant of William Hildebrand, who owned a 1974 El Camino pickup truck. Plaintiff asked if he could borrow the truck to haul building materials. According to plaintiff, Hildebrand agreed that plaintiff could use the truck until he was finished hauling building supplies. Several days after he borrowed the truck, plaintiff called Hildebrand and told him he was interested in buying the truck if he could "scrape together some money."
Plaintiff testified he used the pickup approximately 12 times during the month to haul building materials and to run errands. When it was not in use, the El Camino was parked in his driveway. Plaintiff also owned a 1975 Pontiac Grand Prix and 1978 Oldsmobile Regency. Neither plaintiff's wife nor his children were allowed to use the El Camino.
On May 22, 1982, plaintiff was driving the El Camino on his way from his home in north St. Louis County towards a tavern on North Broadway in the City of St. Louis when the accident occurred. At the time of the accident, plaintiff was "pretty close to finishing up with [the truck] * * *."
According to Hildebrand, one night plaintiff asked to borrow the truck to haul building supplies. Hildebrand agreed because it was taking up space in his driveway. According to Hildebrand he placed no restrictions on its use and no time limit on when the truck should be returned. After plaintiff had the truck a few days, he phoned Hildebrand and said he was interested in buying it, but would like to drive it a little more. Hildebrand stated they talked in general terms of $2,000.00 to $2,500.00 for the truck. A couple of days before the accident, Hildebrand signed the title for the El Camino and mailed it to plaintiff. The title was not notarized and was received by plaintiff in the mail a couple of days after the accident. Ultimately...
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