Opinion
Hearing Granted March 29, 1961.
Opinion vacated 16 Cal.Rptr. 362.
Carter, Terreo & O'Connell, San Francisco, for appellants Underwriters at Lloyds.
Theodore Tamba, San Francisco, for respondent F. Britton McConnell.
Walcom & Harmon, Leo J. Walcom, San Francisco, for respondent Passetti Trucking Co., Inc.
BRAY, Presiding Justice.
Defendant Underwriters at Lloyds appeals from a judgment holding that plaintiff Interstate Indemnity Company incurred no liability by reason of its policy hereafter mentioned, and that Lloyds' policies hereafter mentioned extended insurance coverage to Passetti. The judgment also denied Lloyds' cross-complaint for reformation of its policies.
Subsequent to the bringing of this action, F. Britton McConnell, Insurance Commissioner, as liquidator of Interstate Indemnity Company, was substituted as plaintiff. However, for convenience plaintiff will be referred to as 'Interstate.' There were two policies issued by Lloyds, one referred to as the primary policy, the other as the excess policy. For convenience and in view of our decision the two policies will be referred to an one.
Question Presented.
Does the word 'automobile' in a liability insurance policy include 'special mobile equipment,' particularly an air compressor being towed by a truck?
Record.
Passetti Trucking Company was working as a subcontractor for Louis C. Dunn at San Jose. Passetti rented a portable air compressor for the job. While returning it from San Jose to San Francisco an accident occurred. The compressor was being pulled by a truck owned by Passetti and driven by Passetti's employee Bland. Passetti for years had secured its liability insurance from Hollander & Strom. It was stipulated that Hollander & Strom was acting as Passetti's agent. It also was licensed as an agent of Interstate. It was not an agent for Lloyds. Hollander & Strom secured for Passetti three policies, one from Interstate, the other two from It was stipulated that (1) employees of Passetti as distinguished from officers of the company were the negligent persons, and that the accident would not have happened if the compressor were not negligently attached to the truck; (2) the accident happened on the Bayshore Highway; (3) the compressor broke loose from a Passetti truck, crossed into oncoming traffic and hit the Zucker car; (4) the compressor was not a 'trailer' within the meaning of the California Vehicle Code and its definition under then section 36, and that it was 'special mobile equipment'; (5) the Passetti truck was specifically mentioned in the Interstate policy.
Now Vehicle Code 1959, § 630.
The trial court found that the Interstate policy did not provide coverage and that the Lloyds policy did.
'Automobile' Includes an Air Compressor Being Towed.
The Interstate policy provides: '1. Coverage A--Bodily Injury Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury * * * sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile.' (Emphasis added.)
Lloyds' policy was one of general liability insurance and contained the following exclusionary clause in endorsement #9: 'It is agreed that coverage does not apply as respects any claim or series of claims arising out of any one occurrence by reason of the ownership, operation, maintenance or control of any automobile, trailer, semi-trailer, tractor or any motor vehicle licensed for use on public highways.' It is conceded that the word 'automobile' as used in these policies includes 'trucks.'
While the question of whether the word 'automobile' in automobile liability insurance policies includes mobile equipment attached to and being pulled or towed by it, has never been decided in California, it is interesting to note the extent to which other jurisdictions have gone in holding such vehicles to be so included.
In this discussion we are eliminating trailers for the reason that in most liability insurance policies trailers are, as here, expressly mentioned and for the further reason that it is agreed that the compressor was not a 'trailer.' Our discussion is limited to equipment that does not have its own motor power to move it and must be pulled or towed, and cannot, as a trailer can, be licensed under the Vehicle Code.
In Quality Dairy Co. v. Ft. Dearborn Cas. Underwriters, Mo.App.1929, 16 S.W.2d 613, a wagon attached to a truck became detached and collided with an automobile. 'It is commonly understood that the use of a truck is to produce motion, and to move, carry, draw, or propel objects from one place to another by means of power generated by its engine and transmitted directly or indirectly to the object to be moved.' At page 614. The court held that the cause of the wagon becoming detached was not important; 'however the wagon may have become detached, it was nevertheless the use or employment of the truck as a propelling power which put the wagon in motion and started the chain of circumstances which proximately led to the injury sustained.' At page 615.
In Central Surety & Ins. Co. v. New Amsterdam Cas. Co., 1949, 359 Mo. 430, 222 S.W.2d 76, a semi-trailer on two wheels The following cases deal with insurance policies which, as here, provided coverage for damage arising out of the 'ownership, maintenance or use' of an automobile. In all cases the policy was held to cover the accident
In Employers Casualty Co. v. Hicks Rubber Co., Tex.Civ.App.1942, 160 S.W.2d 96, the assured's truck was backed up to the curb to unload tires. An employee threw a tire out of the truck, hitting a pedestrian and injuring him.
In Panhandle Steel Products Co. v. Fidelity Union Casualty Co., Tex.Civ.App.1929, 23 S.W.2d 799, an iron beam being unloaded from a truck parked at the curb struck and injured a pedestrian.
In Schmidt v. Utilities Ins. Co., 1944, 353 Mo. 213, 182 S.W.2d 181, 154 A.L.R. 1088, wooden blocks were used to enable the truck to back over the curb onto the sidewalk to deliver coal. After delivery, the truck driver placed the blocks on the sidewalk and drove away. A pedestrian tripped over them and was injured.
In Mullen v. Hartford Accident & Indemnity Co., 1934, 287 Mass. 262, 191 N.E. 394, oil negligently dripped out of a truck's crankcase on the street. After the truck drove away, the plaintiff slipped on the oil and was injured.
In Thompson Heating Corp. v. Hardware Indemnity Ins. Co. of Minn., 1944, 74 Ohio App. 350, 58 N.E.2d 809, insulation was being blown from a truck through a hose extending from the truck across the sidewalk into a building. A pedestrian tripped over the hose and was injured.
In General Acc. Fire & Life Assur. Corp. v. Hanley Oil Corp., 1947, 321 Mass. 72, 72 N.E.2d 1, 171 A.L.R. 497, oil being pumped through a hose from a truck to a house overflowed on the cellar floor, became ignited and damaged the house.
In Oklahoma Farm Bureau Mutual Ins. Co. v. Mouse, Okl.1953, 268 P.2d 886, a combine was loaded upon the assured's truck. The breather pipe of the combine caught upon the bottom of a bridge. The plaintiff was riding in a cook shack following the truck. The plaintiff climbed upon the top of the combine on the truck to bend down the breather pipe so that it would clear the bridge. While the plaintiff was bending the pipe the bracket holding it broke and injured the plaintiff.
In Wheeler v. London Guarantee & Accident Co., 1928, 292 Pa. 156, 140 A. 855, a girder unloaded from a truck was left on the sidewalk. The truck had moved away. A pedestrian fell over it and was injured.
In Turtlelaub v. Hardware Mut. Casualty Co., N.J.1948, 62 A.2d 830, a truck was parked at the curb to deliver. A hand truck was used to carry merchandise from the In Merchants Co. v. Hartford Accident & Indemnity Co., 1939, 187 Miss. 301, 188 So. 571, 192 So. 566, a truck went into a roadside ditch. Large poles were used in extricating it. The truck drove away, leaving the poles in the road. An automobile struck one of these poles and injured a passenger.
In Maryland Casualty Co. v. Tighe, 9 Cir., 1940, 115 F.2d 297, the driver of the assured's truck had just made a delivery of vegetables to a San Francisco restaurant from the truck parked at the curb. Returning, he 'negligently and carelessly ran from the entrance thereof toward the truck while looking backward over his shoulder and, in so doing, collided with Tighe,' injuring the latter. At page 298.
In Morris v. American Liability & Surety Co., 1936, 322 Pa. 91, 185 A. 201, an employee of the assured drove the truck to his employer's place of business. In the truck was a tire that needed repair. While in the act of hammering the tire into place on the rim of the wheel on which the tire was placed, the employee negligently injured another person.
In Owens v. Ocean Acc. & Guarantee Corp., 1937, 194 Ark. 817, 109 S.W.2d 928, an ambulance was parked in front of the home of the patient to be transported to a hospital. The patient, while being carried from the house to the ambulance on a cot, utilized as part of the ambulance equipment, was carelessly allowed to fall to the pavement and was injured.
In Roche v. United States Fidelity & Guaranty Co., 1936, 247 A.D. 335, 287 N.Y.S. 38; 273 N.Y. 473, 6 N.E.2d 410, the assured drove his automobile into a gasoline service station and ordered gasoline. While the attendant was pumping gasoline into the tank of the car, the assured, intending to examine the dial on a gasoline gauge on the side of the tank, approached the automobile with a lighted cigarette in his mouth and a lighted match in his hand. The gasoline fumes from the tank became ignited, either from the cigarette or the match, causing an explosion, injuring the attendant.
In American Auto. Ins. Co. v. Amer. Fid. & Cas. Co., 1951, 106 Cal.App.2d 630, 235 P.2d 645, 647, an action in which the court was interpreting the 'loading and unloading' provisions of insurance policies, one excluding and the other including coverage for damage done in loading and unloading, the court stated, 'Under defendant's policy it is liable for damages because of injury to property caused by accident and arising out of the use of the motor vehicle. Such a policy does not require that the injury be a direct and proximate result, in any strict legal sense of that term, of the use of the motor vehicle covered by the policy.' 106 Cal.App.2d at page 637, 235 P.2d at page 649.
In some of the above mentioned cases the insurance policies covered loading and unloading of the truck or automobile. However, in all the cases the emphasis by the court was upon the fact that the operation and use of the motor vehicle was the principal contributing factor in the particular accident.
Thus the word 'automobile' in both policies included the compressor. Interstate's policy thereby provided coverage for damage done by the compressor. The Lloyds policy thereby provided exclusion of the damage done by the compressor on the highway.
Respondents take the position that the accident in our case may have been caused by the compressor having been negligently attached to the truck at the assured's premises and therefore Lloyds' policy attached, as it provided a general liability coverage including use of automobiles on the assured's premises. But, as said in Quality Dairy Co. v. Ft. Dearborn Cas. Underwriters, supra, 16 S.W.2d 613, concerning the wagon there, it is not important why the compressor became detached from the truck; it was the use or employment of the truck as a propelling power which put the Respondents contend that endorsement #8 on the Lloyds policy controls here. Section 1(A) of that endorsement provides coverage for work and operations undertaken by the assured applicable to its business, the ownership or maintenance of equipment used by the assured in, or in connection with, the assured's trade or business, the liability which is assumed by the assured by reason of any written agreement applicable to the business of the assured, and the ownership, maintenance or use of automobiles. Were it not for endorsement #9, placed on the policy at the same time, this endorsement would extend coverage under the circumstances of this case. (This is true also of other provisions of the policy.) However, to apply endorsement #8 as controlling would require that endorsement #9, which states that it is agreed that coverage does not apply to claims arising by reason of the 'operation maintenance or control of any automobile,' be entirely ignored. This we cannot do. It clearly appears from an examination of the policy as a whole that it was intended to, and did, cover the assured's liability as to all claims of damage which might arise save those resulting from the operation and use of automobiles and trucks off the premises. The policy as a whole, like the policy in Employers Mutual Liability Ins. Co. of Wisconsin v. Pac. Indem. Co., 167 Cal.App.2d 369, 334 P.2d 658, is a comprehensive liability one, and like the one in that case would have covered the accident, were it not for the exclusionary clause. That limited the comprehensiveness of the policy. (The word 'control' is used in the Lloyds policy instead of the word 'use' as in most policies. We see no difference in these words as related to the question at bar.)
Mr. Strom, Passetti's agent who procured the insurance in both companies, testified that he intended to obtain for Passetti automobile coverage from Interstate, and other liability coverage from Lloyds. Strom knew that Lloyds Underwriters are not licensed to issue automobile liability insurance policies covering use of motor vehicles on the highways of this state. While, of course, if Lloyds did issue such forbidden coverage, Lloyds could not escape liability by claiming that it was illegal, it is clear here that neither Lloyds or Strom intended that the Insurance Code be violated.
If there is any ambiguity in an insurance policy it must be resolved against the insurer. Continental Casualty Co. v. Phoenix Const. Co., 1956, 46 Cal.2d 423, 431, 296 P.2d 801, 57 A.L.R.2d 914. Nevertheless if there is a conflict in meaning between an endorsement and the body of the policy, the endorsement controls. Idem, 46 Cal.2d at page 431, 296 P.2d at page 805. Here there are two endorsements; endorsement #8 is on a printed form, while endorsement #9 is typewritten and appears to be specially prepared. As said in Continental, '* * * under the provisions of section 1651 of the Civil Code * * * the written or specially prepared portions of a contract control over those which are printed or taken from a form.' 46 Cal.2d at page 431, 296 P.2d at page 805. The clear import of the policy with its endorsements is that it gives general coverage and excludes automobile coverage. As stated above, this was the intent of Passetti's agent Strom.
The court properly found that the Lloyds policy is not ambiguous and does not require reformation, and hence properly rendered judgment against Lloyds on its cross-complaint for reformation.
In view of our decision it is unnecessary for us to consider the other contentions made by the parties.
The judgment is reversed, except that portion denying Lloyds relief on its cross-complaint for reformation. The trial court is directed to enter judgment to the effect that the Interstate policy supplies liability
TOBRINER and DUNIWAY, JJ., concur.