Summary
holding that automobile exclusion may apply not just to a single unit, but also to a pool of vehicles furnished for regular use
Summary of this case from Prudential Property and Cas. Ins. Co. v. HinsonOpinion
No. 39491
Decided February 16, 1966.
Insurance — Family automobile policy on policeman's own automobile — Construction of policy — Policeman injured while occupying police cruiser — Exclusionary clause — Cruiser furnished for officer's "regular use."
1. Where a city police officer sustains bodily injury while occupying a police cruiser and where such police officer had been working on general police duty but had been assigned to work in a police motor vehicle on 122 of the 164 working days during which a family automobile policy had been in force on his own automobile, such bodily injury is excluded from the coverage of such policy by the provisions therein that such "policy does not apply * * * to bodily injury * * * sustained by the named insured * * * while occupying an automobile * * * furnished for the regular use of * * * the named insured * * * other than an automobile defined * * * as an `owned automobile'" i. e., an "automobile * * * owned by the named insured and" including "a temporary substitute automobile."
2. An automobile will be excluded under such policy provisions although it is only one of a group of automobiles from which an automobile is regularly furnished to the named insured by his employer.
3. Where a city police officer working on general police duty is assigned to work in a police motor vehicle on 122 of 164 working days, such a vehicle is as a matter of law "an automobile * * * furnished for" his "regular use" within the meaning of such policy provisions.
APPEAL from the Court of Appeals for Mahoning County.
This action was instituted in the Common Pleas Court of Mahoning County to recover medical payments provided for in a family automobile policy issued by defendant to plaintiff on May 2, 1960.
Plaintiff was a police officer of the city of Youngstown working on general police duty. On January 21, 1961, he was injured while riding on duty in a Youngstown police cruiser.
Between the date of issue of his policy and the time of his injury, plaintiff was assigned to duty in police motor vehicles on 122 of 164 working days.
So far as pertinent, plaintiff's policy reads:
"Part I — Liability
"* * *
"Definitions
"* * *
"`owned automobile' means a private passenger, farm or utility automobile or trailer owned by the named insured, and includes a temporary substitute automobile;
"* * *
"Part II — Expenses for Medical Services
"Coverage C — Medical payments
"To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, X-ray and dental services * * *:
"Division 1. To or for the named insured * * * who sustains bodily injury * * * caused by accident, while occupying * * * an automobile * * *.
"* * *
"Definitions
"The definitions under Part I apply to Part II * * *.
"Exclusions
"This policy does not apply under Part II to bodily injury:
"* * *
"(b) sustained by the named insured * * * (1) while occupying an automobile * * * furnished for the regular use of * * * the named insured * * * other than an automobile defined herein as an `owned automobile' * * *."
The Common Pleas Court held that, when the language of the policy is applied to the facts of the instant case, an ambiguity arises as to whether the cruiser in which plaintiff was riding at the time of his injury was "furnished for" plaintiff's "regular use" within the meaning of those words as used in the policy, and that that ambiguity should be resolved against defendant; and rendered judgment for plaintiff.
That judgment was affirmed by the Court of Appeals without written opinion.
This court allowed plaintiff's motion to certify the record because of an apparent conflict with the judgment of the Court of Appeals for Franklin County in Farm Bureau Mutual Automobile Ins. Co. v. Boecher (1942), 37 Ohio Law Abs. 553, 48 N.E.2d 895.
The cause is now before this court on appeal from the judgment of the Court of Appeals.
Messrs. Traxler Malkoff and Mr. Marvin Traxler, for appellee.
Messrs. Manchester, Bennett, Powers Ullman and Mr. John D. Liber, for appellant.
The question to be decided may be stated as follows:
Where a city police officer sustains bodily injury while occupying a police cruiser and where such police officer had been working on general police duty but had been assigned to work in a police motor vehicle on 122 of the 164 working days during which a family automobile policy had been in force on his own automobile, is such bodily injury excluded from the coverage of such policy by the provisions therein that such "policy does not apply * * * to bodily injury * * * sustained by the named insured * * * while occupying an automobile * * * furnished for the regular use of * * * the named insured * * * other than an automobile defined * * * as an `owned automobile,'" i. e., an "automobile * * * owned by the named insured, and" including "a temporary substitute automobile."
In our opinion, it is.
There may be factual situations where a reasonable doubt might arise as to whether an automobile was furnished for the "regular use" of a named insured. See for example Century Indemnity Co. v. United States Casualty Co. (C.C.A. 5 1962), 306 F.2d 956; Travelers Indemnity Co. v. Pray (1953), 204 F.2d 821; Palmer v. Glens Falls Ins. Co. v. Hill (1955), 58 Wn.2d 88, 360 P.2d 742; American Automobile Ins. Co. v. English (1957), 266 Ala. 80, 94 So.2d 397; Juzefski v. Western Casualty Surety Co. (1959), 173 Cal.App.2d 118, 342 P.2d 928.
However, on the facts of this case, we do not believe that the words "an automobile * * * furnished for the regular use" of plaintiff are ambiguous or can reasonably be interpreted so as not to describe the cruiser in which plaintiff was riding at the time of his injury. O'Brien v. Halifax Ins. Co. of Massachusetts (Florida App. 1962), 141 So.2d 307; Brouillette v. Fireman's Fund Ins. Co. (La.App. 1964), 163 So.2d 389; Commercial Ins. Co. of Newark v. Gardner (D.C., E.D.S.C. 1964), 233 F. Supp. 884. See annotation, "Exclusion from `drive other cars' provision of automobile liability insurance policy of other automobile owned, hired, or regularly used by insured or member of his household," 86 A.L.R. 2d 937.
In order to be excluded under this exclusionary clause, an automobile need not be a single particular automobile regularly furnished to the named insured. Thus it is well settled that an automobile will be excluded under such policy provisions although it is only one of a group of automobiles from which an automobile is regularly furnished to the named insured by his employer. Century Indemnity Co. v. United States Casualty Co., supra ( 306 F.2d 956); O'Brien v. Halifax Ins. Co. ofMassachusetts, supra ( 141 So.2d 307); Farm Bureau Mutual Automobile Ins. Co. v. Boecher, supra (37 Ohio Law Abs. 553); Davy v. Merchants Mutual Casualty Co. (1952), 97 N.H. 236, 85 A.2d 388; Moore v. State Farm Mutual Automobile Ins. Co. (1960), 239 Miss. 130, 121 So.2d 125; Voelker v. Travelers Indemnity Co. (1958), 260 F.2d 275.
In our opinion, where a city police officer working on general police duty is assigned to work in a police motor vehicle on 122 of 164 working days, such a vehicle is as a matter of law "an automobile furnished for" his "regular use" within the meaning of such policy provisions. Brouillette v. Fireman's Fund Ins. Co., supra ( 163 So.2d 389); O'Brien v. Halifax Ins. Co. of Massachusetts, supra ( 141 So.2d 307). See Commercial Ins. Co. of Newark v. Gardner, supra ( 233 F. Supp. 844); Farm Bureau Mutual Automobile Ins. Co. v. Marr (1955), 128 F. Supp. 67.
Therefore, the judgment of the Court of Appeals is reversed and final judgment rendered for defendant.
Judgment reversed.
ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT and SCHNEIDER, JJ., concur.