*1 95.450 subject matter contained KRS 16-149 of the differs from that of Section is, therefore, There
Covington City Code. discipli-
no conflict. 16-149 is not a Section legislative It is a directive
nary regulation. evaluation of a
setting up process Department
potential member of the Police City Covington. Covington City
Section 16-149 legal ordinance.
Code a valid and Kenton Circuit Court is
Judgment of the
AFFIRMED.
All concur. UNDERWRIT-
NATIONAL INSURANCE and National Aviation
ERS
Underwriters, Appellants,
v. CLUB, INC.; Deb- FLYING
LEXINGTON Baker, Administratrix orah Hardin Hardin and the Estates of Barbara J. Hardin, Hardin;
William T. Deborah L.
Administratrix of the Estate of Steven Hardin; Joseph Robert Morsink and Hardin, Polsgrove; Indi- Deborah L.
S.
vidually, Appellees. CLUB, INC.; Deb- FLYING
LEXINGTON Baker, Administratrix
orah Hardin Estates of Barbara J. Hardin Hardin; Morsink, Jo-
William T. Robert Cross-Appellants,
seph Polsgrove, S. UNDERWRIT-
NATIONAL INSURANCE and National Aviation Underwrit-
ERS ers, Cross-Appellees. Appeals
Court 9,
Nov. 1979. Feb. 1980.
Rehearing Denied Sept. Review Denied
Discretionary
* J., MARTIN, REYN C. and Before WILHOIT, JJ. and OLDS MARTIN, Judge. Chief Insur- National The court held that Aviation National ance Underwriters and poli- its owed a defense under Underwriters by action the Estate cy of insurance to the Lexington Hardin versus The of Steven T. par- both judgment From this Flying Club. ties have appealed. Hardin, 1, 1973, William T.
On December Hardin, Hardin and Steven T. J. Barbara near airplane crash James- were killed in an crash, of the town, the time Tennessee. At plane piloting was William Hardin T. was Mr. Hardin Club. Flying owned Flying Club an individual Hardin, wife, J. Barbara along with his Hardin, son, resided Steven Lexington, household maintained their Fayette County, time of the crash and sometime At the thereto, National Insurance Under- prior writers and National Aviation Underwriters an insurance had issued to the Club agreement all sums pay to legally obligated become the insured should >- pay. crash, an action Subsequent estates of deceased instituted seeking defendants persons against several alleged wrongful deaths. for the damages individual offi- and some The Club were Club cers and members of defendants, as a result allegedly named as and carelessness negligence of their airplane in maintaining caring for the question. Ishmael, Jr., Brown, D. & James Sledd
McCann, P.S.C., Lexington, appel- for arising between dispute Because of the lants/cross-appellees. hereto, de- sought a appellants parties pursuant Chapter claratory judgment Jr., Harbison, Kessing- Kessinger,
Ben L. Kentucky Revised Statutes 418 of the Enlow, er, Bush, Murphy, Lisle David T. & nor a coverage available Dunn, there was neither Lexington, appel- King, Enlow & or its individu- defense due the Club cross-appellants. lees/ * prior Judge Mar- This was reached decision resignation tin’s which was effective October Next, Flying
al the provisions argues members under that the severability clause policies underlying aforementioned contract. negate plain language would trial court’s decision was based severability clause in exclusion. The following construction of the exclusion- policy provides that Club’s ary language contained in the policy: Policy *3 afforded under “[T]he not policy apply does to . “[T]his separately Part 1 insured applies to each death of who any person is a named insured against claim is or suit is whom made or who is a member of the named insured’s brought, but the inclusion of more herein Notwithstanding household.” that the lan- one in operate than insured shall not to of guage the exclusion at here plainly issue crease the of the Company’s limits liabili excludes coverage from “. . . death of ty.” any person insured,” who is a named in light Liberty fail of argument This must Mrs. B. was J. Hardin a named insured v. State Farm Mutual Mutual Insurance Co. (defined in the as . policy “any member Co., 522 Ky., Automobile Insurance S.W.2d and the spouse of such individual if a resi- (1975). it was held that: “The 184 There dent of the individual member’s house- guarantee is to the purpose of clause this hold”), Flying Club contends that the Com- persons named as protection to all same pany owes it a defense. out of insureds to take exclusions and not position upon The Flying Club’s is based severability policy.” purpose the of The arguments (i) the policy that the exclu- limits protection, clauses is to to the spread sions drafted fail to reflect the intent of the of named in- coverage, among all the Club, Flying (ii) that certain bases negate not bar- purpose sureds. is The the underlying “severability so-called plainly are gained-for exclusions which exclusion, clause” so as to modify the Bank and worded. See American National and, vein, (iii) in a similar that where the Indemni- Trust Co. Hartford Accident & term “a named insured” is used in the ex- Co., (6th Cir., 1971), 442 ty F.2d 995 which clusions, applied meaning only as it the unambiguous clearly held that drafted brought. insured whom suit is against the exclusions are not which unreasonable public are against enforceable. regard The Club’s contention argument which third Flying Club’s ing its in purchasing intention the contract “the insured” is also without defines upon by-laws insurance is based certain argu The this authority merit. and minutes of a of the meeting only omnibus claus ment discusses based However, Club. the sections cited es, conditions, general. exclusions in only Club show that it intended to argument be may logic While purchase liability public insurance and that exclusion where the persuasive in a case pre it was about in concerned the increase exist, does presented not the exclusion does miums sure that seemed to follow in ignore exist in the case. We cannot present sought. crease in Those coverage records we so that the exclusion existence of are devoid of evidence that regarding may adopt general more rule a intended purchase intra-member acci As policies. of insurance the construction insurance; indeed, dent had such this by Flying for the Club on cases cited expense been its attendant and nov sought, issue, the same they distinguishable are on elty merited mention. As would have some basis. there of an intention was no such mention Finally, provide, coverage against in addition we note that Club admit- airplane its trial brief liability claims non-member ted both its answer coverage for passengers, coverage “[Ejxclusion prohibits for the claim contem C that Club, plated by we must assume To this extent B. J. Hardin.” not should cross-appeal that was to what matters purchase intention it raised on See received. have been before this Court. contested 493 gives rise to a Rice, agree that the clause at issue Ky. 479 Bennett v. S.W. However, rule in (1925). arguments because these we feel that the ambiguity, technical we appeal Company, also bear on the construc judicial precludes the Burke case have considered them. ambiguous to not which is tion of a clause ordinary under usual and persons with Company presents appeal The ordinary method usual and standing. The more The exclu- complex question. through back go be to would of construction provides sion which is at issue here that if “Named Insured” to see the sentence coverage is to one who is unavailable used; case, [any] as “a in this it was used In- “. . . a member of the named Further, page on named insured.” court noted sured’s household.” ap the exclusion upon which “the” made the clause sus- the article mean “Named defined to pears, Insured” is ceptible meanings, to two as he stated that spouse . and the “any becomes whether the exclu- . . question “[T]he *4 if sion was intended to to the death of a a resident such individual member (emphasis the household of named member of household” individual member’s definition, only the insured within added). person doubt that a of We cannot particular a member of the household of a con understanding would have average Thus, named insured.” the clause was held thusly. insured” Cf. strued “the named to be ambiguous judicial and construction United, Waits, Ky., 512 S.W.2d Cook Inc. v. was indicated. Op of (1974), International Union 493 and Co., Ky., v. Jones erating Engineers Const. exclusion, In construing the the trial (1951) (contract to be con 49 240 S.W.2d purpose court looked to the of the house- instrument sidered as a whole and entire 'protect hold exclusion which is to the insur- meaning of to determine the considered er from collusive lawsuits. Because there part). each kinship were no ties of between Steven Club, possibility there seemed little supported by the evi holding is
of a collusive suit between Flying Club pro intended dence that the Club Further, the Estate of Steven Hardin. for the bene insurance public liability vide since are strict- ambiguities to be construed Club, members, employ fit of the and its insurer, ly against the the held that court was, evidence adduced again, no ees. There the “to a claim only apply exclusion should that the Club members which indicated a mem- any person the death of who is intra-family accident purchase wanted to ber of the household a insured intention, in the Their as shown insurance. policy.” who is the claiming coverage under coverage record, liability only to extend Thus, it of law that was held as a matter in accidents named insureds to the various Company owed the Club a de- non-Club, persons. non-family involving fense, summary judgment and a was en- not, strictly speaking, Although this tered to that effect. Based several Club because exclusion “household” provisions rules of construction other household, plainly an it cannot have a insurance, disagree the same we pos avoid the which also seeks to exclusion with this construction. suits between collusive sibility of
Admittedly Mutual, the article “the” caus Liberty Cf. and its members. the clause of the problem construing es a must An insurance contract supra at 186. However, it present policy. insurance according its true character be construed automatically construed should not be with the in accordance purpose, is to be against the insurer. A contract interests and expectation intentions with and ordi persons construed as usual v. Co. Kentucky Water Service parties. them. nary understanding would construe Co., 385 406 Ky., S.W.2d Ins. Selective 436 Ky., Sturgeon, v. (1966); Furlow v. Washington National Insurance Co. Wilcox, Ky., Wilcox v. (1968); Burke, (1953). While 485 Ky., 258 709 S.W.2d S.W.2d (1966). analysis and 152 respect we the trial court’s 406 S.W.2d 494 insured, a named
Although the court held that household of is, best, ambiguous at and should holding this would substitute the article exclusion exclusion, against compa- the article in the construed “any” for “the” be I, follow the frankly, unable to ny. affirm the trial court would be to substi am interpreting logic majority tute the words who is that claiming “the insured interprets Kelly as it is written somehow coverage policy.” under Cf. v. recovery Association, by “the permit State Automobile the exclusion to Insurance (6th Cir., 1961). claiming who is under Accept F.2d 737 insured 288 policy.” ing plain of the clause as an meaning it, the
ordinary person would construe evi
dence of intention in the record and the policy, in the
policy, language and other obligations changing
affirm would be to make. parties
which the have seen fit O. Wright, Ky., Link Handle Co.
P. v. (1968). While we are aware S.W.2d 842 SMITH, Faye Prather and Ruth Ada strictly are ambiguities to be construed Baird, Appellants, insured, only in favor of the this rule comes
into when both play constructions are Louisville Gas language reasonable. RIHERD, Appellee. Trilma Co., and Electric Co. v. American Ins. *5 Appeals Court (6th Cir., F.2d 1969). The evidence as shows construe the so 28, 1980. March provide for more than was antici Review Denied Discretionary pated bargained by party either at Sept. contracting the time of is not reasonable. Accordingly, summary judgment en
tered in favor of the Club must be
REVERSED. J.,
REYNOLDS, concurs.
WILHOIT, J., dissents.
WILHOIT, Judge, dissenting. majori- portion
I dissent from that
ty Exclusion C of opinion holds that to a policy applies house- a named It is obvious to
hold of insured. reading the
me from entire the terms
“the insured” “a named in- interchangeably not used to de-
sured” are example,
scribe named insured. For quite as to what specific unqualified
meant word “insured” term Part Policy
whenever that is used in 1. “named defining section in- recognizes “insured”
sured” and also
difference between “a named insured” and
“the named insured.”
Although I believe Exclusion C does
plain wording not to member