Decided February 28, 1944.
Insurance — Automobile indemnity — Policy covering use of truck, including loading and unloading — Unloading insulating material by means of blower — Insured may settle claim without relieving insurer, when.
1. An automobile indemnity insurance policy which insures against loss by accident arising out of the ownership, maintenance and use, including the "loading and unloading," of the insured truck, a truck specially designed for transporting rock wool insulation and having a blower machine permanently attached for the purpose of unloading the rock wool and blowing it through a hose into the building being insulated, covers an injury suffered by a pedestrian who tripped over the hose laid across the sidewalk and attached to the truck during the "unloading" or "insulation" operation.
2. If, in such a case, a personal injury claim is made, and the insurer refuses to participate and defend the claim, the insured may, without relieving the insurer of liability, proceed to a settlement, provided such settlement is reasonable and is made in good faith.
APPEAL: Court of Appeals for Hamilton county.
Mr. Leo J. Brumleve, Jr., for appellant.
Messrs. Dolle, O'Donnell Cash, for appellee.
Plaintiff was the insured in two policies of indemnity insurance, one a public liability policy, issued by Liberty Mutual Insurance Company, indemnifying generally any operation in which plaintiff was engaged, the other issued by defendant, being an automobile liability policy indemnifying against bodily injury, etc., for loss sustained by reason of the ownership, maintenance, and use of a certain truck. Each policy contained a proportionate liability clause.
Plaintiff is engaged in the retail and wholesale furnace and stoker business, and, as an incident thereto, purchased an especially designed, built, and equipped truck, having a van body, upon the sides of which appeared in large lettering the name of plaintiff company and certain advertising as to rock wool insulation. The truck was specially designed for transporting rock wool insulation in bats and bags and was equipped with a bolted on or permanently attached blower machine for the purpose of unloading the bags of granulated rock wool insulation by breaking them into the hopper and blowing the contents into place in a particular building by means of a hose extending from the truck attachments into the building.
A pedestrian suffered serious injury occasioned by tripping over the hose extending from the parked truck across the sidewalk into the building, into which the granulated rock wool insulation was being blown.
On notice, defendant denied coverage of the risk. The Liberty Mutual Insurance Company acknowledged liability and loaned plaintiff the money to effect a settlement with the injured party, under a written agreement, whereby plaintiff became obligated to test defendant's proportionate liability, if any, by suit.
At the close of all the evidence, both parties moved for a directed verdict. The trial court granted defendant's motion and this is an appeal on questions of law from the judgment entered on the verdict thus returned.
The prime question in the case is whether by its terms the policy issued by defendant comprehends the risk of the happening under the circumstances here present.
Under the heading "Insuring Agreements," the policy provides:
"To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages, including damages for care and loss of services, because of bodily injury, including death at any time resulting therefrom, sustained by any person or persons, caused by accident and arising out of the ownership, maintenance or use of the automobile."
Item 5, page 1, provides:
"The purposes for which the automobile is to be used are:
"(a) The term `pleasure and business' is defined as personal, pleasure, family and business use.
"(b) The term `commercial' is defined as use principally in the business occupation of the named insured as stated in item 1, including occasional use for personal, pleasure, family and other business purposes.
"(c) Use of the automobile for the purposes statted includes the loading and unloading thereof."
The face of the policy discloses plaintiff's occupation, described as "retail wholesale furnaces stokers," the truck is described generally only, but the actual cost including equipment is shown, and the premium charges are set forth.
The testimony shows the truck was insured on the same day it was acquired by purchase and was specially fitted and adapted as a complete unit for installation of insulation simultaneously with the unloading thereof.
In construing this policy, general rules for the construction and interpretation of written contracts are applicable. It is fundamental that the intent of the parties, when ascertained, will control. If not ambiguous or uncertain, the express terms and plain language as ordinarily understood will be given effect as revealing the intention of the parties. If that intention be clearly revealed, there is no room for the application of rules of construction necessary in searching for the meaning of ambiguous language. No new or changed contract is to be arrived at either by asscribing finely drawn connotations to simple terms or by disregard for the simplicity or plainness of terms used. Counsel for both parties have furnished numerous citations, with which on their facts the court both agrees and disagrees, but none of which is dispositive of the case at bar.
The language of coverage quoted supra is all inclusive and utterly without qualification, loading and unloading are included, the truck is actually employed to house and support the blowing process and this court is of the opinion that the language is simple and clear and reveals the intention of the parties to insure the risk involved herein and incident to the normal use of the specially equipped truck.
The trial court based its decision on its finding of no coverage and while deeming it not essential to a decision went on to approve plaintiff's right to proceed to a settlement of the personal injury claim on defendant's refusal to participate and defend. With this view, this court is in accord. Employers' Liability Assurance Corp. v. Oles, 13 Ohio Law Abs., 436; 29 American Jurisprudence, 808, Section 1077; annotation, 71 A.L.R., 1479. The question of the good faith and reasonableness of the settlement was raised by the pleadings as an issue in the case, with the burden of proof thereof resting upon the plaintiff. Jones, Exrx., v. Southern Surety Co., 210 Iowa 61, 230 N.W. 381. Had the trial court definitely and clearly found the settlement to be a reasonable one, arrived at in good faith, this court would enter final judgment for the plaintiff. However, the record falls short of revealing such a finding with sufficient clarity to justify that action by this court.
The trial court further found no merit in the contention that the agreement between plaintiff and Liberty Mutual Insurance Company was champertous, with which finding this court is in accord, and the question as to the real party in interest has heretofore been disposed of by this court. Thompson Heating Corp. v. Hardware Indemnity Ins. Co. of Minnesota, 72 Ohio App. 55, 50 N.E.2d 671.
The judgment is therefore reversed and the cause remanded for further proceedings according to law.
ROSS, P.J., and MATTHEWS, J., concur.