*1 justice presiding erroneously find that the We denied judgment notwithstanding motion for verdict di- entry judgment rect the for the defendant.

Appeal sustained. judgment Entry directed. for defendant Fidelity American Co.

vs. George Mahoney, F. Insurance Commissioner Opinion,

Kennebec. October 1961. *2 Hinckley Thompson, Linnell, Perkins, & Thaxter Cowan, By Casper plaintiff. F. for Atty. Gen., Ranger, T. Asst. defendant. Orville J., Webber, Sitting: Williamson, Tapley, C. Sullivan JJ. Siddall, Dubord, had notified Defendant for stated reasons J.

Sullivan, operator’s liability insurance plaintiff individual that an therefor both policy insured endorsement and an additional proposed did meet with plaintiff had to use of which plaintiff thereupon approval. The official the defendant’s appeal a determina- Superior from such Court filed controversy reported has been by and the the defendant tion 42; 72, L., 1957, c. Rule P. § this court. Procedure, 155 Me. 573. of Civil Maine Rules disapprobation had his summarized The defendant in two strictures: endorsement coverage misleading that the afforded “(1) beyond the reason- to be limited it is so average policy- comprehension able through who, years, has edu- holder, been broadening coverages lia- under to a cated insuring automobile. policies his bility which is unfair of a construction (2) It is as- public because the assured normally expect to exist would sured therefore, public, not, and the it does where many unprotected in instances. be left would groups Furthermore, over various studies changes comprehensive years indicate agency, liability, in the laws of vicarious responsibility financial must be made before an form of insure-the-driver could operate fairly.” Subsequently additionally the defendant had communi- plaintiff particularized cated to the these 20 details which reproval had motivated the defendant’s endorsement:

“(1) There is no named being operated by insured while car is his anyone permission, else with without passenger. when he is not a anyone There is no who drives the car the named insured with permission, pas- or without his unless he is a *3 senger. (3) liability coverage There no is for the named spouse, insured when his a member of his family, employee agent driving or his or is (1) above. under coverage (4) liability spouse There no is insured, of the named or a member of his fam- ily, under employee above. agent driving or or who is (2) (5) liability coverage There no is for the named

insured owner of ing as insured. car when his son is driv- permission the car with his with his wife passenger, though even the wife is a named (6) coverage liability There is no for the son un- (5) der above. coverage (7) liability There is no for the wife un- (5) der above. (8) coverage liability There is no for the named anyone or insured else under condition damage negligent for caused mainte- nance of the insured’s car. oper- anyone

(9) no There is for ating even For pany by a car owned named not insured though passenger. the named insured" is car, car, example, a rented leased a com- car, or car. a borrowed for the named (10) no There is riding passenger in a non-owned insured automobile. explana- not defined. (11) ‘Motor vehicle’ is not the term ‘motor vehicle’ need nation that already well- defined because be begs meaning Maine law defined policyholder ex- question, pected cannot be since to read the Maine law in order coverage is. what his understand attempt provide apparent made to ad- is An part coverage in the ‘Exclusions’ ditional Coverage example, policy. Part A For company pay certain dam- will states operation arising ages an auto- out of the Part 1 define The ‘Definitions’ under mobile. private passenger, farm, aas an automobile utility or trailer. The ‘Exclu- automobile or does Part 1 under state sions’ any operation aas apply under Part 1 to conveyance, livery ex- but this public or respect apply bodily in- does not clusion damage property jury which results to (of) occupancy a non- named insured’s operator other than as automobile owned provided thereof, no which certainly meaning of anyway. The this *4 obscure. the named insured does not cover

(13) The passenger a non-owned automobile as causing an whether negligence accident automobile, directing operation of the by driver, distracting as the result of joint venture. in Part 1 of the not used defined but

(14) ‘War’ is policy. ‘Operation’ (15) the new definition of (2) Part entirely clear. The reference to ‘his’ not is any to mean automobile would seem owned automobile, owned but under insured’s persons provision, other ‘Persons Insured’ only have than the named insured with respect owned to the automobile named insured. ‘Operation’

(16) The definition of is still unsatis- operation, factory. only it cover or does Does regulation physical tenance, use, main- control include ownership? payments (17) There no medical occupying the named a motor insured while vehicle not his own.

(18) (i) from Exclusion has been omitted amendatory endorsement.

(19) policy provides for automatic cessation upon the date of death of the named insured. provision public certainly Such

interest, of the named insured of deprive family because would protection during time when matters such automobile insur- likely given thought. ance are not to be scope The result of the narrow clarity afforded and the lack of provide of its terms is to with less protection might reasonably expect. than it The fact the cost of this is less than that of standard forms is not a valid approval provide for its when it does not basis adequate protection public.” Ostensibly ruling the defendant rested his administrative subjoined statutory language, resolving policy and endorsement are: “ - - - - misleading of a construction -- - -” public,

which is unfair to the assured or the 60, 6, as amended. § *5 512 compulsory

It be noted that motor vehicle must pro- in insurance obtain Maine save limited does through Re- of R. the Financial visions §§ Law, sponsibility which are of no moment here. Nor Legislature adopted prescribed form standard liability policy. motor vehicle specimen plaintiff policy for the

The submitted defendant red bore in letters consideration following premonition: cover the

“INDIVIDUAL OPERATOR’S

LIABILITY POLICY LIMITATION Policy. not a Automobile It can- This is Standard persons application not be written for who on the required date are Responsibility. to file Financial Certificates of protects individuals, policy, named in It operation against due to their of an auto- general operation in does not cover mobile but the by others. insureds’ automobiles

PLEASE READ THIS POLICY” subject premium The would be less than the liability policy cost of a more conventional because of cur- assured, Any tailed risks and of fewer insured losses. therefore, fairly chargeable prac- with to the would be heed proportion only tical axiom that one receives pays. amount he is calculated to accommodate group, parents in the less endowed financial holders whose juris general persons become swi who children have not, to, who find rare occasion lend their cars. None do obligated pur- potential normally of these customers is any liability understandable that the chase insurance. might augment availability serve to It is foreseeable number of the assured. likewise *6 the extensive from more effect a diversion policy could more their own present policyholders for who of the weal protection from for and concern adequate insurance. prone to retain the broader might otherwise be empirical speculations attend an answer. must Such duty statutory of court to: it the this case In this becomes “ - - - - the as- not reasons determine whether or signed by valid----” the commissioner are 6, S., 60, as amended. § authority defendant an ex- the The administrative of finding requisite fact ecutive officer is restricted to regulation policy, delimited standard within needful guidance by affirmatively for established and rule Legislature. authority than the is no nor more

“----Its less legislative given body has it----” - Board,---Me. -, Licensing Kovack v. continuously operative

“The Constitution as char- government impossible ter does not demand the impracticable. require It that Con- does gress every upon find which de- for itself fact it legislative it for sires to base itself detailed action or make which has declared determinations legisla- prerequisite application to be particular tive impossible facts and circumstances Congress properly for itself to investi- gate. legislative function are essentials legislative policy the formulation and determination of and its promulgation as a defined and binding preserved conditions of fact of conduct-----The are rule essentials Congress specified when the basic existence occur- whose rence, desig- ascertained from relevant data agency, nated statutory its administrative it directs shall It command be effective. is no ob- jection that the determination facts and the light inferences to be drawn from them in the statutory standards declaration of call judgment, exercise of subsidiary formulation of within the administrative prescribed statutory framework----” Yakus v. U. 321 U. 424. S. has been consistent tradition our decided cases that one who by writing enters a relation evidenced bound very exceptional terms absence of cir- voiding equitable of a cumstances nature. The of con- law sales, tracts, parol rule, evidence etc. attest to that Stahl, truth. Watkins 191; Medical Co. v. Me. *7 Peterson Parrott, 381, 382; Co. v. 129 Me. Gamage, Dutch v. 305, 308; 120 Me. Spaulding Realty Co., v. American 121 493, 497; Me. Auburn, (“caveat Lavoie v. 128 Me. 413 emptor”). day legislation Latter social has done much as in labor laws security and in investment equalize acts to trading position persons advantaged otherwise less negotiate length at arms’ positioned with their better fel- However, lows. the law not characteristically has been paternalistic. Legislature The praiseworthy in its measure protect policyholders misleading and the from lia- policies bility and from those aof construction which quantified is unfair censorship. intended Yet the Legislature expressedly has assumed require no mission to liability coverage any. broad or Purchasers in- surance are left judgment uninhibited in their selective Legislature amount and kind of insurance. available The police power prevent exercised its the use in this any perceptibly guileful. illusory State of or delusive or any policy logically and of demonstrably suscep- and interpretation tive to an inequitably construction thwart- ing frustrating public. the assured or the Legislature policyholders

The has not relieved from the pains consequences reading choosing and pol- reprehensibly misleading icies are not as or amenable to un- policyholders fair construction. Such must continue to be presumed by ordinary contents rules of law to know the policies policies of their whether the are read or not. Wat Stahl, kins Medical quite Co. v. 191. It true Me. Legislature that the many must have been aware that all too policies insurance easy are not read and are not to read intelligibly. Legislature only The concerned itself with the specific monitoring compre which it evils listed. was forthright policies any breadth, depth hensible multiplicity coverage beyond expressed what the meet ing freely contracting of the minds of the insured and in might negotiate. surer plaintiff rulings in its contest of the and 20 detailed

specifications of the defendant set forth earlier in this opinion readily proposed policy affirms with the en- designedly dorsement restricted in and directs cautionary attention imprinted limitation in red plaintiff policy. on the obverse cover of the generally Plaintiff concedes that

policy is defendant describes it. Plaintiff comments protected that broader personnel as to and as to may risk be had the insured as desired for an enhanced premium. specification Defendant’s statement 5 is ob- jectively plaintiff’s disagreement true with it is incor- *8 protected expressed rect. The insured is exceptions with operating while a nonowned negligent automobile and for operation of a motor vehicle. Insured does not receive the against coverage negligent broader maintenance of car against negligence apart and operation. certain from Medi- payments coverage plain cal plenary. if not scope The policy of the afforded is comparatively nar- Legislature row. The any greater has not ordained cover- age any at all.

In the prescribe instant case this court to policy.. judge validity We of the reasons which the defendant

assigned disapproval policy The for his in issue. .dis- dis- approval be an exercise of sound defendant must cretion. response objections to

In to defendant’s 6th and 7th acknowledges policy plaintiff at tech- there is least justification Plain- censure. nical Commissioner’s despite persisting element tiff’s assurance nebulous recognize joint ownership and honor a in in- sort of would commendable not con- and husband is but does sured wife legal policy requires commitment. The a firm stitute conclusively presuming confirmatory non- clarification owning spouse an of an owner to be owner. and insured term, vehicle”, “motor as the defend-

A definition of the preferable specification at least 11 is ant insists facile. definition of the defendant as to the

Dissatisfaction specifically specification “operation” 16 and regulate” physically control is warranted phrase, “to dispelled. ambiguity be should warning upon part runs in as- external red The follows: individuals, protects policy, named in the

“It operation their an auto- against due to ----” bile (Italics ours.) internally exclusions,. contains

But alia: inter bodily injury spouse any

“(g) insured,----” daughter parent, son or coverage against bodily in- (g) withholds The exclusion emancipated daughter or adult at the juries son or 1355.) A. L. (Anno. 122 accident. time of an individuals, fully protect “the named in obviously does not *9 policy, against operation of an their due to implied notably automobile conspicuously “as so warning red caution which hints of no reservation. The becoming language requires square modification in to coverage. reality with the of the The defendant in comprehensive disapprobation of the his more principle shortcoming. protested in such opinion assigned by defend is our the reasons S., part. accordingly part ant are valid in and invalid in R. P., amended; B, 155 Me. Sec. Rule M. R. C. Policy disapproval applicable warning 592. specifications disapproval 6, 7, numbered 11 and 16 are determined be valid and are sustained.

Appeal denied. J., Concurring Dubord, denying appeal,

I my finding would concur in but base grounds specified much broader than those the ma- jority opinion. 6, Chapter 60, part

Section 1954 reads in as fol- lows : notify any “If the commissioner shall insurance company doing any pol- in the state that business

icy form proposed or form of endorsement used or company to the be used such does not meet with approval commissioner, for the reason comply it does not with the statutes of this illegal misleading state or is otherwise or is a construction which is to the as- unfair public, (emphasis sured supplied) pol- such icy form or form of endorsement shall not there- company after be used in the state.” authority commissioner, Pursuant vested in the he disapproved question principal two rea- sons, viz.:

(1) policy misleading coverage That the is in that the by beyond it afforded is so limited as to be the reasonable comprehension average policyholder; the the is construction which is unfair normally assured or the because the assured would coverage expect not; public, to exist where it does and the therefore, unprotected many be would left in instances. principal disapproval

These two en- were statements larged twenty detailed reasons which are set forth majority opinion. my twenty intention is to discuss in detail all of the specified by However, I

reasons the commissioner. make to a reference few them. specification (3), (1), (2), (4),

Under it is indicated there is no the named for insured being anyone operated by while his car else with is or with- permission, passenger. when he not a in- out his is This spouse insured, the of the named cludes member of agent. employee family, or his or specification (5), pointed Under is out there is no the named for insured owner when his daughter driving permission the car with his son is with though passenger, the his wife as even wife is named insured. consider, specification, in relation to

When we this the 156, Chapter 22, provisions of Section which causing knowingly an of a vehicle makes owner motor age years operate permitting minor under of 18 upon highway, jointly severally vehicle liable such damages negligence caused such minor with easy great minor, it to visualize one of is weak- policy. of this nesses pointed specifications, (19), it pol- out that

Under upon icy provides automatic cessation the date of death dangerous to a clause most of the named insured. This is majority public and is not commented policy, opinion. ordinary liability Under in force and of the insured afforded remains the estate protection.

Moreover, many the terms of the are veiled in obscurity and nebulousness. (cid:127) describing insured, example, the named

For provides as follows: *11 following (a) Part The “The are insured under 1: insured, respect operation (1) named with to his any except vehicle, af- motor that no is operation forded vehicle hereunder (as hereunder) other than an defined automobile by regularly if fre- and vehicle is owned or quently occupation used in a or business insured, (2) insured’.” operation named an and auto- by ‘person

mobile a defining meaning “operation” In of the word there is policy a clause in the which reads as follows: “ regu- ‘Operation’ physically control and means driver; late; charge as and in- to have of it legal Bodily liability In- cludes the insured’s jury automobile whether Damage Property (1) caused or while the owned non-owned unattended, insured leaves it caused his owned in the care cus- automobile while it is station, repair shop, tody garage, of a service storage garage public parking place; provided or respect to . . however that with this . .” Ability war- to read and understand these two clauses defiance, just many rants and there are other clauses comprehension. difficult of company

Conceding honesty in of the motives of drafting which can be sold a contract restricted unscrupulous premium, what about the acts of a low at agents selling explaining policy in this either with without liability? intention carelessness how restricted or Granting persons right that a contracts have enter into illegal, or no which are not clouded with fraud otherwise average argument point ordinary, is needed to out that person, policy does not his insurance and if he does read great understanding many so, difficulty clauses suppose prospective therein. If we can contained policy purchaser were told there was no of this agent family, employee spouse, his an his a member of or driving permission without unless the insured car with or death; passenger; policy ceases he is a daughter year he his 17 or 18 old son or that if allows coverage; if a friend to there he sends car is no use his neighborhood an errand there is with his car to run store purchased coverage; policy then if the with full no legal understanding of its contents there would be no clear objection to such contract.

However, a matter of involved here. there is undoubtedly lead to unsatisfied sale of this will litigation and the judgments and between the owner interpretation involving and construc- company matters of *12 tion. legislature opinion my that when the en-

It is considered praise- Chapter it was imbued with acted 6 of Section affording protection public and had worthy desire of contemplation now before a situation as is within its us. power properly exercised the

The commissioner using reposed him. He is to be commended for discretion I prerogative in the interests of welfare. findings appeal. deny all of his sustain would

Appeal denied.