Zipperer v. State Farm Mutual Automobile Ins. Co.
| Decision Date | 30 April 1958 |
| Docket Number | No. 16613.,16613. |
| Parties | James W. ZIPPERER, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Carl G. Swanson, Jacksonville, Fla., for appellant.
John M. McNatt, Jacksonville, Fla., McNatt & Mathews, Jacksonville, Fla., of counsel, for appellee.
Before HUTCHESON, Chief Judge, and BORAH and TUTTLE, Circuit Judges.
James W. Zipperer, the appellant here, was on August 21, 1954, injured while riding as a passenger in an automobile which was then being driven by George E. Barber, his step-father, with the consent of the owner, Charles H. Barton. Following the accident, Zipperer brought suit in the appropriate Florida court against Barton to recover damages for the injuries he had suffered because of the alleged negligence of the driver of the automobile. The record shows that the State Farm Mutual Automobile Insurance Company, appellee herein, had issued its liability insurance policy to Barton covering the automobile. The policy, among other things, contained a provision that the appellee would pay on behalf of the "insured" all sums which the insured became legally obligated to pay as damages because of bodily injury caused by accident arising out of the use of the automobile. The policy also provided that the unqualified word "insured" used therein, "includes the named insured and also includes any person while using the automobile * * *, provided the actual use of the automobile is by the named insured or with his permission." Under Section (e) of Exclusions, it was provided that coverage did not apply "* * * to the insured or any member of the family of the insured residing in the same household as the insured." This policy was in full force and effect at the time of the accident, but the insurer denied liability on the ground that the claim was not within the coverage of the policy, and therefore refused to defend Barton in the state court action. Thereafter, and following the entry of the state court judgment, Zipperer, believing that the judgment debtor did not have in his possession visible property upon which a levy could be made sufficient to satisfy said judgment, caused a writ of garnishment to be issued against the insurance company as garnishee, wherein he claimed that the insurer was obligated under the terms of the policy contract to pay to him on behalf of Barton the amount of the judgment together with costs. On petition of the garnishee, the garnishment action was removed to the District Court for the Southern District of Florida. There, issue was joined and following the taking and filing of the depositions of Zipperer and his mother, the case came on to be heard on the garnishee's motion for summary judgment in its favor.
The District Court found from the depositions and pleadings that at the time of the accident, George E. Barber was the step-father of the plaintiff James W. Zipperer; that the plaintiff was then unmarried and less than twenty-one years of age and lived in the residence of his step-father and mother; that except for the time that the plaintiff was in the military service, he had lived with his step-father and mother since their marriage in 1944 and was a member of the family of and was residing in the same household as George E. Barber, although he was paying board at the time of the accident. And on the basis of these undisputed facts the court concluded that the coverage of the policy of insurance did not apply and that there was no obligation on the part of the garnishee to pay the judgment recovered by the plaintiff against Barton. Accordingly, judgment was entered for the garnishee-defendant and plaintiff has appealed.
In reaching its conclusion that the policy in suit excludes the personal injury claim of appellant from its coverage provisions the court stated that it was of the opinion "that the exclusion clause applies not only to the named `insured,' Charles H. Barton, but also applies to George E. Barber, who was using the automobile with the knowledge and consent of the named insured at the time of the accident." Insisting that this construction of the exclusion clause broadens the terms of the insurance policy, appellant here argues that he...
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