*1 644 Indemnity Company v. Lockard &
Hartford Accident 2d. 849 124 So. 1960 No. December appellant. Gulfport, Greaves, P. D. *2 Pascagoula, appellee. Palmer,
Merle F. *3 J.
Kyle, appellee, this suit instituted Lockard, T. The Jacob County against Chancery of Jackson in the Court Company, Indemnity appellant, Accident and Hartford appellee money seeking which the recover sums legally obligated persons pay liad become third damages bodily injuries property damage because of by ownership arising caused accident and out by use erage aof vehicle, motor for which cov- liability policy
was claimed under an automobile by appellant; overruling issued and from a decree complaint awarding demurrer to the bill to the appellee money judgment appellant prosecuted has appeal. complaint bill in this case was filed the said complainant, against Jacob T. Lockard, the said Hart- Indemnity Company, ford Accident and defendant, on January complainant alleged 26, 1959. In bill the his May that on he was the owner 1953 Ford being truck, F-600 which was driven Roosevelt Tan- employee complainant, High- ner, north way Mississippi, 59, about one mile south of Yaneleave, pulling log and was a bobtail trailer the com- owned plainant, when said trailer came loose ran into a 1952 two-ton Chevrolet truck which was owned and was being passenger, Fairley, driven Gaston who had a Manson him Littlefield, with that the loose truck; Fairley damaged trailer struck the truck of Gaston Fairley personal same, and Littlefield sustained *4 injuries aas result of the collision. complainant alleged
The further at the time accident he the defen- carried insurance with Company, Indemnity dant, Hartford Accident and on Policy 117229, said 1953 Ford truck, under No. 20K complainant issued the said that the im- defendant; mediately gave notice of accident Moran’s In- said Agency Springs, Mississippi, surance at Ocean who was general complain- ag’ent the the defendant and herein; Agency ant that he was assured Moran’s Insurance fully under the defendant investigation would take over the and defense of complainant claims result said ac- proceeded investigate the that the defendant cident; Fairley taken accident, and liad the truck Gaston repairs; Mississippi, garage that in for Biloxi, to a Fairley Manson Little- the meantime said Gaston represent employed attorney them in actions field prop- complainant personal injuries against erty for arising damage that the said accident; of said out rep- attorney complainant writing- of his notified the Failey matter; resentation of and Littlefield complainant defendant; said letter to forwarded duly July authorized Corban, C. B. and that 3, 1956, attorney representative defendant, wrote the Fairley which the Littlefield a letter in de- said carry representative Mr. Lock- stated: fendant’s “We your letter was forwarded on ard’s insurance and you my touch with within attention. I will he in you.” days The with this matter next few to discuss complainant alleged B. that the said C. Corbin further Fairley them assured both and Littlefield and contacted that the matter would be settled defendant, complainant, acting that he was the fully under the assurance investigate the claims no effort to made
covered, Fairley negotiate a settle- and Littlefield or said alleged complainant further The ment of said claims. complainant no notice from the defendant liability policy, fully not covered under the he was complainant September received 1956, until when the 26, Agency enclosing a let- Insurance letter from Moran’s In- Moran’s had written to ter which defendant Agency, September in which 24, 1956, dated surance Copies policy. said defendant under denied the bill of com- were attached as exhibits to said letters plaint part and made a thereof. days complainant after that a few further complainant above mentioned letter dat- received the September in which the denied defendant
ed coverage Fairley policy, Man- Gaston said *5 of Jackson Littlefield filed suits Circuit Court son County against injuries complainant personal property damage, process and was on the served complainant in each of 5, 1956, said cases October returnable to the November 1956 term court; of said protection that both suits came within the of the complainant by of insurance issued to defendant, duty that was the of the defendant defend complainant in both cases or make settlement of duty notwithstanding that same; such to defend said leaving complainant position after suits, security in a false period of almost four months, the defen- complainant although dant advised the that, the defen- coverage dant insurance on the there truck, coverage no was on the and since the trailer, trailer damage injuries complained had caused the complainant duty defendant owed no to settle or complainant alleged defend said suits. The further that by Fairley amount demanded in the declaration filed him $13,609 was and the amount demanded Little- in his suit was $15,248.70; field as result complainant defendant’s refusal to defend said suits, employe attorney an was forced to to defend said suits, employed attorney Pascagoula that he to de- paid fend said suits and him a fee for his ser- $500 injuries ; vices because of the serious involved complainant preju- the suits filed and the position placed dicial in which he had been result notify failing of the defendant’s action in the com- plainant promptly there was no on the trailer suits, defendant would not defend said compelled complainant settle the two cases Fairley paying $1,617.50 the sum to Little- $2,208.70. the sum of field complainant further that “at the time question here was issued he was through acting and advised the defendant,
assured its duly agent, his authorized said trail- that would be to the ers attached trucks under the ’’ policy, Agency and that Moran’s the letter of Insurance *6 September notice that he was the first 26, 1956,
dated denying- coverage- that of the ac- the defendant was had policy; complainant the had made cident the investigate accident, contact witnesses, no effort to period reports during the medical four month secure since the and accident; which had intervened date during actions four month defendant’s said period, greatly prejudiced the above, set forth as estop- position complainant; the defendant was of and complainant ped deny coverage The of said accident. complaint copies of the declara- attached to his- bill of suits .as exhibits tions filed in the two mentioned above complaint. . . bill of said hearing complainant prayed of The that on the final the de- the cause the court decree that fendant, actions of estop the as above, set forth were such as denying of accident under defendant from said liability policy, that the court or in alternative said neg- constituted decree that ligence, actions of defendant complainant damages be awarded to might by the be evidence amount as shown such money expended complainant for be him for due Fairley Littlefield, of said claims the settlement grant the court such other relief as that the court proper. might deem general the bill demurrer to filed a
The defendant assigned complaint, ground for demurrer equity The chancel- the face of the .bill. was no on there then filed the demurrer. The defendant lor overruled copy to which there was attached its answer but the answer was on, sued plead defendant declined and the later withdrawn overruling final was then entered A decree further. awarding judgment general demurrer defendant’s complainant $4,326.20, for the sum of in favor of together with all costs. plaintiff’s upon which the- insurance, part been made a based, which has
action appeal, provided agreed record that the insurer with the payment insured, “in consideration of the premium upon and in reliance the statements in the *7 subject liability, declarations and to the limits of exclu- policy,” conditions and sions, other terms of this as follows:
“INSURING AGREEMENTS Coverage Bodily Injury Liability: pay “I. To on A— of behalf the insured all sums which the shall insured legally obligated pay damages become bodily injury, as because of including disease,
sickness or death any any resulting by per- time therefrom, sustained by arising caused accident and son, out of the owner- ship, maintenance or use the automobile.
behalf “Coverage J J [*] [*] [*] the insured all C— Property sums Damage which Liability: To the insured shall pay on legally obligated pay damages become because of injury property, including to or destruction of the loss by arising of ownership, thereof, use caused accident out of the maintenance use automobile. the. Supplementary Payments: “II. Defense, Settlement, respect by With to such as is this afforded bodily property injury liability dam- and for liability, age company shall: any
“(a) alleging defend suit the insured injury, seeking such or destruction and sickness, disease ground damages thereof, if suit account even such is company may false or but the make less, fraudulent; any investigation, negotiation such and settlement *# expedient; claim it *.” or suit as deems heading policy ex- “EXCLUSIONS”, Under the provided pressly as follows: apply.
“This does not [*] # # “(c) coverages C, A the automobile and while towing any owned hired is used for the trailer and not insured like insurance covered any company; or while trailer this covered by the in- is nsed with automobile owned or hired company; sured and not covered like insurance in the On i Í [*] the Declarations [*] [*] ? J page of the policy, descrip- tion of the automobile is as follows: “53 Ford CA-4.” F600 Cab & Chas. Classification F60R-3M16375, ‘‘Pulp- occupation The insured listed as named is hauling.” purpose the automobile wood which heading to be is “Commercial.” Under the used policy provided as follows: “CONDITIONS”, acceptance By “19. this Declarations. agrees in the declara-
named that the statements insured representations, agreements are tions his *8 rep- policy upon is in reliance the truth of such issued agreements policy all and embodies resentations existing any company of its himself and the or between ’’ relating agents this insurance. ' point argued only appellant assigned one and has ground court, the lower for reversal of the decree of overruling in the defen- that the court erred and policy general that the It is contended demurrer. dant’s appellee the seeks to recover of insurance under which appellee’s was involved the trailer which not insure did complaint, the bill to in in the accident referred being used to the while the vehicle described specifically pull a excluded trailer, instead, but being manner the was the while vehicle used being purpose the which it was time of used the says appellant’s attorney that un- the accident; the complaint, there is in the bill the facts der application the of waiver doctrine no room for estoppel. equitable appellee that on behalf of the It is first contended were under the and the trailer covered both truck liability policy, trailer and that referred designed policy meant a trailer exclusion clause private passenger for use with a automobile, and had no purposes only. reference to trailer used for commercial appellant’s agent, It general is next contended that the Agency, Moran’s Insurance knew that truck was pulpwood appellant hauling, be used for and that the estopped deny was therefore that the pleaded, both truck and that, from the trailer; facts clearly appears parties, that the intention at the time the contract of insurance was entered was that into, the contract should cover vehicle therein described finally, and the trailer attached thereto. And it is ar- gued appellee on behalf of the if the court that, should hold was not entitled to recover on appellant the insurance contract itself, since the complete investigation taken over control of the negotiations for settlement of the claims and demands being appellee, appellant made was un- duty estopped ader to continue with the defense was deny liability under the four months after the date the accident. overruling think the
We chancellor erred in appellant’s general demurrer. The contract of insurance unambiguous. is clear and The motor vehicle covered particularly policy. in policy; described The trailer was expressly pro not mentioned in the and it was apply coverages that the vided did not A being while C, the automobile was used for the tow ing trailer owned or hired not insured *9 by company. like in covered insurance the opinion, by in case, This our is controlled the decision by Maryland Casualty Company in rendered the Court 159 544, v. Miss. 131 in So. which the Court Adams, by growing that a waiver held the insurer out of an agent’s demnity cannot be on acts relied so as to extend the in- an a
of insurance contract to cover not vehicle specifically by policy. policy covered the 'The involved express in case contained an condition no ve- thereby towing pro- hicle covered should be used for or 654 any any a and
pelling trailer, as trailer or vehicle nsed provided expressly cover that the did not further being while nsed a vehicle therein described motor any any towing propelling vehicle nsed trailer or or overruling the that case as a trailer. In demurrer a the the court held that there was waiver of lower provisions policy forbidding of a the the use trailer by the truck and described connection with appeal judg- policy. this Court reversed the On opinion court, in its said: ment of lower particularly here “The contract sued thereby, con- the motor vehicle covered described express that no automobile covered condition tained any thereby towing propelling be used for or should any expressly vehicle used as trailer, trailer provided not cover of insurance did being while for tow- therein described used automobile any ing propelling vehicle trailer or used by it at- and means an asserted waiver is now trailer, tempted parties a new to write contract between indemnity cover a vehicle of the contract to extend by original There is here contract. not not covered provision merely a forfeiture condition or involved sought it rea- contract, which avoid agent company the insurance son of acts sought constituting a waiver but here thereof, make, parties they never for the which waiver, contract to extend contract waiver made themselves, thereby, in- and which the vehicles not covered cover expressly company this insure, refused surance accomplished any alleged means of cannot be result agent growing acts of of the com- out of the waiver Fidelity Washington pany. National Massie v. Insurance 125.” Miss. So. Co., it'ap- opinion rendered Adams Case, From pears complaint in case, that the bill of as in agent that the who issued case, a general agent, agent” general knew and that “said
655 protect was called for and issued to against damages per- injuries the insured to third operation sons in the appears of his truck It also and trailer. complaint that the hill of case (the that “said was issued and delivered to him insured) opportunity giving as aforesaid without him an upon by to read it, to him the assurance said agent protect damage him would loss and growing injuries persons, out or accident to third ** *.” whatever
The decision rendered this Court the Adams case was reaffirmed the Court in al. Adams et v. Maryland Casualty Company, 162 Miss. 139 So. 237, 453. discussing estop-
In the matters as to which waiver or pel may be asserted in cases of kind, the text-writer p. par. says: C.J.S., in 45 Insurance, 674a, general estop- “As a waiver doctrines of or rule, pel operation only can have a field of sub- when the ject they matter is within the terms of the contract, and operate radically pol- change cannot the terms of the icy subject so as to cover additional matter. Accord- ingly, weight authority it has been held estoppel waiver or cannot create contract of insurance apply bring or so within
property, risk, or loss or which terms of expressly excepted or otherwise excluded. As has sometimes been said, doctrines of waiver estoppel successfully pri- cannot be invoked create liability, mary aor for a benefit not contracted supply proof a failure of that a all, loss was policy.” by the applied by The rule thus has been stated the courts varying circumstances and situa- different factual following tions in the cases: Lumber Underwriters York v. Rife, 1915, New U. 35 S. S. Ct. 717, Employers’ Liability L. 1140; Ed. C. E. Carnes & Co. v. Corporation (C.C.A. 1939), Assurance 2d 5th, 101 F. *11 656 (C.C.A. 8th, Accident Ins. Co. v. Roberts
739; Standard 1942), Pac. v. Northwestern 794; 132 F. 2d United Ins. Co. (C.C.A. 1950), Patterson F. 443; 185 2d Nat. Ins. Co. 10th, (Ala. of the Life Ins. Soc., v . Woodmen World 1955), Ins. 2d v. Union Automobile 127; 84 So. Conner (Cal. 1932), v. Fire Ins. Co. 863; 9 P. 2d Hartford Co. Smith, 1940,
200 Ark.
haul could not bind butane coverage policy to such as to insurer so extend opinion court in that case the the truck. In its use of said: going to the cover-
“It that conditions is well settled distinguished scope age a of insurance as may ground furnishing not forfeiture, from those by implication or action. from conduct be waived may estopped con- be its that while an insurer rule is insisting upon knowledge a forfeiture its from duct or coverage policy, coverage on the or restrictions of cannot The substance estoppel. of waiver or be the doctrine extended applied of waiver as of the doctrine with know- that if the insurer law of insurance is primary existing lia- ledge bility recognizes bar of facts which would liability by treating primary such be allowed force, he will not thereafter as in liability. primary plead facts to avoid his such coverage sought be is a case where “This cannot be invoked The doctrine of waiver extended. liability, primary bring within the create
657 contemplated by its not risks included or Guy Estoppel through knowledge White, L. terms. company, operate agent could of the insurance only Company, to re of the Carnes & favor insured, consequences of violation of lieve as coverage. H. not to extend D. terms al. Fire & Inc., Lumber et Life Ins. Co., Foote v. Svea 22; Annotation, La. 113 A.L.R. So. Co., *12 857-871.” Casualty Waddey Maryland Co., v.
In the case of
(1937),
the
654,
109 A.L.R.
In its letter dated cov- erage policy copy the sued on in a case, of appellee’s, which an was attached as exhibit to the hill complaint, appellant investigation of the stated: “Our log discloses that Mr. Lockard at least three owned and that trailers he no time elected had to insure any of them.” After a careful examination the hill of. complaint of and the exhibits thereto, it seems attached estoppel that clear to the of us doctrine waiver or can- coverage not be liability policy invoked this case the to extend of to a sued on vehicle in- which was not policy, bring coverage the cluded in or to within the of policy expressly the risk which was excluded the policy. terms of the also think there We is no merit appellee’s provisions para- in the that contention the graphic) ap- of the exclusions section of the are plicable only in cases where the insured motor vehicle designed towing use for is for the “a trailer used private passenger automobile.” with alleg- opinion the also of the that under facts We are estop- complaint appellant was not ed the bill the ped deny coverage the of the to under because appellant’s having agent in claim action repairs Fairley garage truck taken to a before the investigation completing the The mere his accident. appellant’s agent beginning of claim at the fact that the Fairley investigation taken the his truck of Gaston repairs, garage the mistaken belief to under pol- damage to truck the the icy, was covered appellee prejudice rights under the did not estop appellant right asserting from its or investigation deny liability after its to had been completed. Conner v. Union Automobile Ins. (Cal. 1932), 2d 9 P. 863. Co. appellee
Finally, argued it on behalf of appellant investigation of over the since the had taken giving notice a reservation of without accident, right permitted deny coverage, and had four its pass notifying before months to Fairley un- not covered and Littlefield were
claims of appellant policy, court should hold der deny policy. estopped under the appellee’s we think the facts stated But estoppel complaint insufficient create bill of were liable to the which would render insurer conduct, the suits. “In order to insured for its refusal defend pais estoppel party pleading it must create an party pleading injury, his or the have been must misled * * * prejudice, hurt been misled to his have representations which of another on *14 conduct to he and induced and which was influenced he relied position; acting, change or to his or to refrain from act, must have suffered loss of substantial is, he position to his alter character or have been induced respect.” 31 in material C.J.S., the worse some par. Estoppel, general 74. The that an insurer rule is of an action estopped who withdraws from the defense is deny liability nnder the if its conduct results prejudice estopped in to-the but it not to do insured; any prejudice if so its action not in does result Casualty insured. Farm Southern Bureau Insurance Company (Miss. Logan 1960), v. 2d 268. So. alleged appellee’s
No facts were of com- bill plaint appellee to show that the was misled or harmed by any appellant act or that he was induced to act in a manner different from that other- in which he wise would have acted. No facts in were appellee’s any prejudice bill to show resulted appellee appellant’s delay notify- the ing because appellee coverage that there nowas of the claims. by Fairley No suit had been filed Littlefield given time notice was to the that there was no policy; appel- of the claims under the and the receiving appellant lee, after notice that the denied cov- erage policy, ample employ under the time attorney, investigation make his own of the claims and negotiate a settlement the claims before conven- ing of the November 1956 term of the circuit court. opinion
The chancellor our should have sustained general appellant. demurrer filed The decree appellant’s overruling general lower court de- entering judgment appel- murrer and final lant is therefore reversed cause remanded.
Reversed and remanded. Ethridge
McGehee, Lee, C.J., Holmes, Gilles- pie, JJ., concur. J., dissenting:
Hall, myself bring majori- I am unable to with accord ty opinion in this case. The involved herein shows that there was insured 1956 600 Cab and Chasis purposes only. question be used for commercial *15 may immediately asked, be in the world could “What person a cab and which contains no a do with chasis hanling than the other mechanism for other attachment for a trailer?”
The case was written Moran Insurance Springs, Mississippi, agency Agency of and that Ocean Indemnity general agent & of Accident was Hartford May Company. on The accident of this vehicle occurred immediately gave to and Mr. Lockard notice 28, Moran’s Insurance Agency. It undenied that he was fully Agency that he Moran’s Insurance was assured and that carrier covered investigation, negotiation de- would take and over ag-ainst of acci- of him as a result fense claims question miles about 18 The accident occurred dent. Mississippi, company insurance Biloxi, north of and the damaged in the accident carried the truck which was had repairs. garage fact, for In selected Biloxi, it, nego- company took matter over the and the insurance arising out of of all claims tiated toward settlement appellee. notified the the accident and so Fairley Little- and Manson meantime, In the Gaston attorney employed represent them in causes an field damage property injuries personal for and of action notify- appellee him. forwarded letter attorney appellant’s employment ing him the Fairley attorney appellee agent notified Mr. B. who Corban, This notice was to O. and Littlefield. appellant, representative unquestionably on scope acting* payroll appellant, within the the his dispose authority investigate, negotiate, settle and Fairley attorney Mr. Corban notified of claims. himto matter been referred that the had Littlefield fully were claims shortly adjust matter. he see them would through May 28, accident From date July August and succeeding June, months of the up September day no the 26th until *16 appellant fully notice from the other than he was under, completely covered the insurance issued appellant. part ap- Because this action on the pellant appellee fully was lulled into belief that he was protected negotiate investigate, and he no made effort to acting upon and settle the he claims because as- appellant fully surance of that he was policy. September appellee On 24, 1956, after the had been security, company into lulled this sense of a insurance Agency addressed letter to the Moran Insurance days coverage denied under the two later the Agency appellee copy Moran Insurance mailed to the September Throughout period of the letter of 24th. fully had been led to believe he was company covered, had been assured the insurance adjust would the matter he contends that the now appellant conclusively estop appellant actions denying question. ap- from in the case in pellee assuredly placed great has most been disad vantage company. conduct See v. Izard 173 Mikell, 770, 498; Miss. 163 Martin v. So. Hartley, 208 Miss. 43 In 2d Re 112, 875; So. Stoball’s 211 Will, 15, Miss. 50 So. 2d 635; Stokes v. American Central Ins. Co., 584, 211 Miss. 52 358; 2d Crooker So. Hollingsworth, v. 210 Miss. 46 So. 2d 541, 50 So. 2d 355.
Arrington McElroy, join JJ., in this dissent. Ellzey v. Gin &
Collins Feed Inc. Company, 41605 No. December 2d 76 So.