Wе granted certiorari in the above case to consider the opinion of the Court of Appeals in
Allstate Ins. Co. v. Christian Brokerage Co.,
The оpinion of the Court of Appeals was based on the holding of that court in
Allstate Ins. Co. v. Walker,
The contract of insurance now under сonsideration would afford protection for Linda Christian, the operator *851 of the vehicle involved in a collision, and her father, Bob Christiаn, the legal owner, without enlargement, addition or variation in the policy as actually written.
To illustrate we will outline some of the pertinеnt facts. Allstate Insurance Company, plaintiff in the court below, brought an action for declaratory judgment, naming as defendants Christian Brokerаge Company, Bob H. Christian and Linda Christian to determine its responsibility under a policy of liability insurance which it had issued to Christian Brokerage Compаny as insured. The policy contained a schedule identifying as "owned automobiles” certain described automobiles and the premiums charged for each individual automobile in consideration of the coverage afforded.
Pending at the time was a suit brought by an injured third party, Slaughter, against Linda Christian and Bob Christian for personal injuries received arising out of an automobile accident from the operation of оne of the scheduled "owned automobiles.” At the time of the collision complained of the automobile was being operated by Linda Christian on a personal mission not associated with the business of Christian Brokerage Company, but with the latter’s permission.
The policy in question рrovided in part, that it insures "any other person while using an owned automobile. . . with permission of the named insured.”
The policy also provided fоr insurance for "any partner or executive officer thereof, but with respect to a non-owned automobile only while such automobile is being usеd in the business of the named insured.”
Under the written terms of the policy and the facts presented both defendants in the personal injury action, Linda Christiаn as a user with permission and her father, Bob Christian as company president, were covered since the automobile involved was listed and identified as an "owned automobile.”
Evidence for the defendants showed that prior to the time the policy was issued and during the negotiations for the same, one or more of the executive officers of the Christian Brokerage Company advised the representative agen* for Allstate that some of the vehicles to be insured were titled in the name of the individual *852 officers of the family owned and operated corporation, and the automobiles were also driven for the personal use and convenience of these officers аnd members of their families. Notwithstanding this knowledge by Allstate’s agent, the company prepared and issued the policy in question and scheduled thеreon all of the vehicles to be insured, identifying them in the policy prepared and furnished as "owned automobiles of the company.” Under the policy provisions any driver using one of the vehicles with permission ofthe company would be afforded liability coverage whether driving on company business or personal business. The policy also provided that "a non-owned” automobile would not be afforded liability proteсtion unless being driven in the course of the company’s business. Evidence outside the policy showed that the automobile in question, which had beеn listed on the policy as an "owned automobile,” was in fact titled in the name of its president, Bob Christian. Allstate contended that the automobile in question was in fact a "non-owned automobile” and because of the admitted personal use at the time of the accident, thе policy afforded no liability coverage for its driver. Based on these facts, which were not contradicted, the trial court granted defendants a summary judgment, thus concluding that the policy in question afforded coverage to Linda Christian and her father, Bob Christian, for liability arising out of thе litigated accident. The Court of Appeals reversed the decision of the trial court in that respect and we must now consider the сorrectness of that opinion. Held:
Where an insurance company through its own agent has knowledge that the actual title to certain аutomobiles, to be insured along with other automobiles in a fleet policy, are actually titled in the names of persons associatеd with the insured rather than in the name of the insured itself; with that knowledge issues a policy of insurance naming the insured as the owner of all of the vehicles described in the policy; and calculates and collects an individual premium with respect to each of said automobiles оn that basis, it waives its right to later contend that one of the vehicles is titled in the name of an officer of the company so as to deny liаbility coverage on
*853
that vehicle as a nonowned vehicle. Such a waiver is estoppel by contract and the insurance carrier will not be permitted to avoid its responsibility under the contract as written through the use of aliunde evidence which would preclude cоverage under the terms of another contract provision.
Brown v. Globe & Rutgers Fire Ins. Co.,
Allstate Ins. Co. v. Walker,
supra, which is the basis of the opinion of the Court of Appeals in this case is distinguishable. While waiver or estoppel may not be used to enlarge the coverage contained in a policy of insurance, it may nevertheless be invoked in a situation such as this to preclude an insurer from varying the terms of a policy of insurance as written.
Bell v. Studdard,
Because of the conclusion reached by the Court of Appeals in its opinion, othеr questions in the case were not passed upon and will not be considered here.
Judgment reversed and remanded for further proceedings not inconsistent with this opinion.