*1 868 867 Dabbs. against of default on confirmation ruled court has not
Apparently the district against Dabbs. the alternative demand
on from in this appealed judgment Higgins against judgment was a
case appealed.
alone, Higgins alone from which Dabbs is not before against the demand
As Our
us, to rule on it. powerless we are necessarily plaintiff’s suit dismissing
decree demands limited a dismissal rights Higgins. Plaintiff’s
against way in no timited or Dabbs are decree this case. our
affected
Rehearing denied. So.2d Evelyn PULLEN
Mrs. Vola
v. LIABILITY ASSUR EMPLOYERS’ CORPORATION, Ltd., et al. ANCE Applying J. for Certio re V. MITCHELL
In Review, Parish rari or Writ of Orleans. Evelyn Applying Mrs. Vola PULLEN re Review, or Writ of for Certiorari Orleans. Parish of
Nos. 41920. 7, May 1956. Joseph Gladney, A. Baton Rouge, Amos Rehearing Denied June 1953. Ponder, Jr., L. Simon Wicker, & Warren
M. Simon Thomas Wicker, C. Jr., New Orleans, petitioners.
86'9 870' Barnett,
Montgomery, & Ses- electric Brown sion wire Pullen was electrocuted. Orleans, Sessions, alleged sions New Cicero C. Mitchell was an independ- appellant. ent intervenor and contractor and negligence that his the cause of Pullen’s death. Porteous, Johnson, & Porteous Wm. A.
Jr., Hyland, Parnell & Weiss At the time of Weiss the accident a policy of *2 J. public Orleans, amici Weiss, liability S. Paul Jr., New insurance written Em- the ployers’ Liability curiae. Corporation, Assurance (hereinafter Ltd. Employ- referred Or- Deutsch, Stiles, New Kerrigan & ers’) was in force dragline -affected and leans, defendant-respondent. for (which was included in policy defini- automobile) Southern, tion of and insured- WATKINS, ad hoc. and (under also clause) persons using permission it with the of calls for proceeding, which This such named against injury bodily a provisions of terpretation of certain toa $100,000 maximum of for each insurance, arises cy public liability of (coverage A). compensa- The workmen’s ex- tort, response which in in an action tion insurer of Southern at that time was right ceptions action and no of cause of Maryland Casualty Company (hereinafter Hence, before filed. it is of action were referred to as Maryland), which was fact allegations upon of us the basis of the public liability insurer of accompany- pleadings and the shown applicable policy limit of being $10,000. pertinent documents, disclose the ing hereinafter set out. factual situation widow of Pullen instituted this ac- against tion (the alleged tort Edward a engaged L. Pullen was feasor) Employers’ and (assertedly the Equipment truck driver for Southern public liability insurer Company (hereinafter Tractor referred to clause of its issued to Southern) to Southern) April on and in the damages recover for of hus- her scope employment of course was his band. loading dragline in a helping a onto motor Mitchell denied Mitchell had called in V. traded in the truck. J. codefendant, warranty Employers’, purchase equip- on the of new dragline and, voking the additional insured of from Southern the latter’s ment at mentioned omnibus latter’s of the helping load request, was it onto in which Southern was the named operating drag- was truck. suit, Maryland in intervened loading, insured. the act of when line Employers’ claiming indemnification from high contact ten- came into boom for compensation payments re- automobile in business of * * quired insured. it on account Pullen’s death. of n exceptions filed cause or of no question No by Employers’ raised un- right petition, (a) plaintiff’s action exceptions der the defendant as to (b) Mitchell’s call warranty (c) Mitchell being provi- an insured under the Maryland’s petition of intervention. sions of the omnibus clause of its policy. Hence, purposes excep- Judge
The District sustained the exceptions, he was rejected tions all demands made by Employers’ Employers’. Appeals the Court against liability damages. Circuit, Appeal, in an resulted Orleans judgment. affirmance of the See 72 So.2d Defending under the exceptions 353. action, cause of and directing attention applications plaintiff and the On the admitted fact the decedent Pul- granted Mitchell certiorari to review len was an (and acting with- im- judgment, largely scope because employment of his with) question portant involved is res novo Southern when the accident occurred, Em- jurisprudence ployers’ state. this invokes and relies on certain ex- clusions, *3 interpretation the of which the theory plaintiff, of the demands of point crucial in case, the defined in the Maryland and of of Mitchell as ' policy as follows: Mitchell, tortfeasor, Employers’ is that an additional insured under the “This does not apply: liability policy, as coverage of the follows: “Definition of ‘Insured’. “(c) under Coverages A and B * * * any obligation to for which “The word ‘insured’ in- company insured as his the named insured and cludes insurer be held liable * * * * * * any per- (2) cludes compensation workmen’s law; using while an owned automobile son “(d) A, under Coverage bodily to any person or a hired automobile and injury sickness, to or disease or death responsible organization legally . any employee , the insured while thereof, provided use the actual use * * * engaged employment by automobile of the * * of the insured permission, with sured or officer of the named executive such plaintiff, To defense the respect to Maryland the use of a non-owned respond that the exclusions (cid:127) as' Mitchell only ploy of Mitchell and that coverage is denied simply that “mean com- employee was not liable for death of an injury -as benefits, pensation re- the exclusions against whom the insured applica- upon by appellee lied imposed”, have no to be therefor coverage tion and the omnibus afforded Pullen the decedent that since thereby. omnibus Mitchell is unaffected employment whom from feasor tort “An examination of the leads herein, exclu- damages are demanded open to the conclusion that it is not inapplicable. sions are appellants such construction as by the question raised specifi- tend for. The contract states interpretation exceptions involves cally and unambiguously that ‘the un- question That the exclusion clause. qualified word "insured” inchides the “the whether the defendant named insured.’ appel- To hold for insured” referred to would necessitate striking lants out coverage, insured who excluded quoted such language of the whom precisely, or, put it more insuring agreements.' ours.) (Italics withdrawn, by the coverage is “Such definition of the ‘insured’ thereof. the omnibus clause the effect of has delineating certainty in the sake of For persons placing covered resolved, we problem refer to be exactly clause in po- the same court, which appellate judgment of the sition insured, as the named and sub- issue, well as accurately states the ject all of conditions of So.2d parties, 72 position and that of cy to the named as follows: subject to all the limita- upon whereas tions “Appellants set contend forth in the ” * * * fault of arose virtue of the claim construed, insured, properly an omnibus It will be observed court made it where occurs ‘insured’ language reference as re- be treated should the exclusions construing omnibus clause in the meaning whom om- ferring to the import of the word “insured” in the *4 applies and not coverage clause nibus exclusion clause. insured, it therefore and named to liability policy, solely to to refer be taken should omnibus consequently, and the exclusion -clause They argue, clearly were de- Mitchell. . express purposes. signed- for not in the em- certain They that since Pullen 87S “insured” nature, indi- in the clause very used that by purposes evince such their cates, suggests, even reference pro- offer intended' to viz.: —the is de- to named other insured. insured or clause to coverage, tective the omnibus ’ clause, clause The in the sense in extent, omnibus scribe the exclusion its and “insured”, unqualified it each should uses word its to define limitations. And potential insured, objects every makes light and reference to of its construed purposes. purpose and thus its and intent to evidences protective every coverage offer to The omnibus clause with unmis- states provisions. insured defined in its that certainty unqualified “the takable word unqualified all omnibus insured”, ‘insured’ includes named but word “insured” used can therein be held to equal certainty it it also states mean. Since illogical suppose it to includes omnibus or additional insured. designed it was duty do the' double word “insured” relates not describing both the inclusions exclu- insured, to the named but also to the omni- policy coverage, sions of it reasonable to Indeed, bus insured. it can be said conclude that it intended to extend cover, comprehend, include and refer- to coverage only. Hence, the omnibus clause every character of insured covered in- extend, limit, intended by policy, tended to be covered whether coverage. insured, insured, the omnibus hand, additional On the other very other insured. nature of the term and title of the exclusion clause clause, by term and own suggests that it intended to delimit and “includes”, title and its use of the word restrict It is necessarily exclu- comprehensive- dicates extensiveness inclusive, sive instead of restrictive rather purpose ness and an evident and intent to comprehensive. than quite It clearly every person refer to entitled designed identify point out such protection policy. It draws persons who are not pro- entitled to the except as shown distinctions self- coverage policy. tective evident that the named fact insured and the separate While the insured are distinct “insured” used persons. relationship It omnibus clause refers every defines policy, insured covered that the than named insured and omni- it does not follow that the use bus insured are included under the same word in both ' exclusion clause of the same makes same inclusive every particular reference to describes and identifies no insured. It is obvious import nothing because there the word that such meaning into the exclu- *5 §77 878’ gives., to to the clause only as it that do violence clause would clause sion meaning word, word coverage, but and that purpose has a meaning only ab- in which implication of in the sense destroy suicidal it its Hence, it particular is used in exclusion. a comprehensive clause. nullity by solute apart word has meaning omni- under the distinct inclusion Comprehensive used, comprehensive ex- that of the clause in which it is clause followed bus be and it must be clause would read and in the exclusion considered clusion light contemplating adjunctive descriptive eviction lan- lease equivalent occupancy. guage of clause, that as simultaneously with well as in view before purpose its intent, par- thoroughly and and must purpose are so thus use and Such to, take of the with, utterly repugnant meaning of itself. and the clause consistent coverage, in the protective omnibus clause the word has- policy intent of comprehensive inter- in the meaning thereof that clause that consideration in accordance exclusion purpose and with its language, pretation the omnibus design, not and use such while clause exclusion is intolerable. clauses it it bears but purpose, stamp import par- and only in with of that conflict ticular clause and has a and mean- restrictive purposes variance at ing. analysis, the final thus it is the mean- It clauses. respective designs of the ing of clause, rather than meaning that of a given that evident becomes word, single requires that interpretation. .omni- in the word “insured” in,- necessarily clause bus does Since the omnibus clause extends cover- to, exclusion- hardly extend can and only age points and exclusions, out no attempt construe clause, that identity of the insured intended be ex- by refer- clause in one the word use of cluded or withdrawn from the benefits of obscures ence to the policy coverage cannot be found in the meaning of clarifies, the fuses, than rather clause, but must be with- the clause. word both perimeter and in the language of the exclusion clause. In the absence of other therefore, that apparent, the true (and related none have been meaning unquali- proper use and pointed except out the unwarranted refer- directly “insured” is related to fied the omnibus clause), only ence to it is the it incor- particular clause in which policy defining area of the the terms and merged becomes the word porated, conditions of exclusion. in, submerged the context of with, or flavor, necessarily exclusion clause it must of its savors and thus interpreted light gives meaning examined much the word not so 880' intent, foregoing provisions, well Under the design own workmen’s, purposes may who objects and liable view of the extended, compensation suffer- has been whose Once injury or purpose engaged clearly the death while em- quite as it here, ployment, it is excluded has been done policy to do when exclusion exclusion is of an basis the existence be withdrawn should *6 certainty. because employer-employee relationship with between is established injured, the insured comprehensive is violative of and the exclusion and the insured' policy coverage, ex- must be identified employer intent be purpose and subject not necessarily be exclusion. In the of an clusion must absence distinguished specific, as employer-employee relationship general. between particularly insured and comprehensive, injured, when it exclusion not does intended or insureds to the insured and the identifies the remains latter clause, as protective The exclusion coverage be excluded. traits, cy. char- implies, forth name sets mark an circumstances acteristics brings This question us to the initially insured And the exclusion.
insured stated: whether must bear excluded “the insured” insureds be or who is marked and cir- provi- identified traits, conform with or marks sions of the exclusion particularized cumstances, as the insured described subject to exclusion from for exclu- the basis clause as exclusion pleadings describe Mitchell independ-. as an sion. contractor, ent from which implication no language pertinent the exclusion can be drawn showing any other kind of hereinabove is shown follows: relationship between him and Southern. apply: “This Both pleadings does show Mitchell and Southern to be separate and * * * any “(c) obligation distinct individuals, and the pleadings dis- * * * may insured be close that separate have and distinct any held liable com- interests. There can hardly be dispute law; pensation as to whether Mitchell sought insured * * * bodily injury to be excluded from “(d) coverage by the ex- * * * ceptions, death of because he is the only insured ágainst enaged liability while whom in the em- sought and * * * through Employers’, whom ployment the insured exceptor, [*] *» sought to be held.- Insofar the pleadings (cid:127)881 ployer concerned, employee, qua sine no non for
-are there is proceeding. even if exclusion. is no But there basis for ex- volved in this n other insured cluding number of insureds and he remains under the protective directly indirectly liability were involved . whether or sought, their must identification for exclusion test of Accordingly, for the assigned, reasons specifically and all applied not to to each judgment Appeal, Court of Or- collectively, shown, and the as heretofore Circuit, leans judgment of the dis- exclusionor any insured non-exclusion reversed, trict court are annulled and set or relevance to that of reference has ordered, aside. It is now adjudged and de- there .any where other insured creed that there be judgment herein over- relationship between them. nection or ruling exception action; of no cause case, sep- and Southern are this and that cause be this remanded to the dis- arate, individuals and unrelated distinct trict court for proceedings in accordance interests, and separate and distinct with with law and not inconsistent with the us Mitchell is pleadings before -under the expressed. herein views insured from whom demandedand excluded. who is DUPONT, ad hoc rele- Therefore, unquestionably the he is concurs *7 written ex- reasons. here, and the test of vant insured de- applied him to be clusion must whose an insured he is termine whether HAMITER, J., dissents with written identity him for exclusion marks reasons.
n HAWTHORNE, J., dissents, and con- (supra) for exclusion basis opinion dissenting curs of HAMI- existence relation- employer-employee anof TER, J. injured, ship insured between em- the insured as of .and identification McCALEB, J., dissents with written for presented rea- undisputed
ployer. The facts consideration sons. exceptions show under relationship whatsoever there was SIMON, J., Pullen, recused. between Mitchell and decedent emphasizes lack total which circumstance of DUPONT, ad hoc any them as em- relationship between (concurring). Justice interpreted mean, at could directed herein
The cause action covered the definition Employers’ (2) (1) Mitchéll and V. J. policy, protected Ltd., in said not be Corporation,
Liability Assurance liability negligence due to in. Pul- his Mrs. insurer, liability solido. injuring or causing death of a husband’s len contends that her employed by not him to Mitchell, inde- or whom he an negligence of due to the obligated compensa- contractor, that when pendent words, tion law. providing cov- ex- law he became liable under the exceptions liability under clusions insur- protected against ered contracts, ance clearly must' be set forth policy issued an insurance policy which was and cannot rules- Corporation under Liability Assurance equity be'supplied by lawof and effect. court in full force then and there supplement enlarge provi- the exclusion meet- dispute to Mitchell There sions of said un- specified coverage requirements ing Insured” “Definition of heading der appears, therefore, Pullen: “since disagree- policy. There in said contained employ was not in the Mitchell and that ment, however, only whether or toas as Mitchell was not work- liable thesaid exclusion exclusions, said compensation benefits, men’s Plain- Mitchell and deprive the upon by appellee application: relied have no tortfeasor protection and Pullen 'Mrs. and the omnibus coverage afforded tiff insurance. said thereby.” unaffected benefits pertinent provi- An examination of HAMITER, (dissenting). that an insured of said reveals sions named and including both the (obviously holding untenable the contention insured) is not entitled the omnibus the claimants (plaintiff, herein and insurance benefits protection Maryland), af- and in sustaining de- cases policy only in those said Employers’, fense of Appeal Court of forded person negligently injured or where made reference to the definition- particu- by him is killed contained in the omnibus' clause under held liable on who lar which Mitchell became an additional insur- compensa- the workmen’s obligation that, ed and it concluded in view of the- *8 law. tion definition, he (Mitchell) subject was to the- words, same conditions and Certainly, are no contained there limitations respecting recite, policy’s policy, in said which was mywhere named in- .885 886 named (cid:127)sured, quote insured' through negligence to its Southern. on n opinion 355, part responsible had tribunal, been So.2d Pullen’s of that death.” it observed: “An examination of not cy it is leads conclusion that With such I and observation conclusion
n open appellants a to such construction as fully agree. give be added specifical- The contract states contend for. the exclusions meaning that claimants ly unqualified unambiguously that 'the for, plain contend and thus to overcome named insured.’ word "insured” includes definition contained in the necessitate would appellants ‘To hold for “insured” in- lan- quoted policy such striking out of the cludes the ad- named as well as an (Italics insuring agreements. guage of the insured, ditional be there have to would (cid:127)ours.) written a into such exclusions restrictive phrase “employee such as the “Such definition the ‘insured’ in the n omnibusclause has im- against be whom placing effect of posed” “employee the insured tort persons by the covered feasor”. position (cid:127)exactly same as the named subject all the conditions Furthermore, interpretation an ex- the named policy as (cid:127)the clusions in the manner suggested by claim- insured, subject to all limitations might ants well lead to obviously results upon coverage set forth contemplated by parties to the’ in- Hence, Pullen since example, surance contract. For under that Co., Equipment & Tractor .'Southern interpretation, if Southern had not carried insured, the latter liable to compensation workmen’s insurance it would statutes, compensation widow right have a and a cause of action against was excluded death Pullen’s so :and the tort-feasor Mitchell and person causing coverage whether public liability own insurer (Employers’) to named insured compensation recover all workmen’s applies, omnibus clause even whom obligated pay it is to Pullen’s widow. pro- liable for the latter though See Board of Commissioners of Port of compensation benefits. If a viding of the City Orleans, New Orleans v. New contrary taken, it would were to view 199, 65 La. So.2d 313. The liability policy insurer’s saying that equivalent
'be question under those circumstánces an omni- as to greater ' furnish to Southern' both to would have been than it would bus public liability Co., compensation and & if insurance. Equipment Tractor said .Southern *9 - 887 888- contrary adopting a construction have- tions argued that it is behalf of claimants On ambiguity. Georgia Kaifer v. am found are provisions of the exclusions Co., Casualty Cir., 309; 9 F.2d adoption 67 Sand and, hence, that the biguous Estate, 534, strom v. 258 by Wis. interpretation required Clausen’s 46 suggested 831; N.W.2d Shanahan v. Midland widely recognized rule Coach established and well Lines, 233, 268 Wis. 67 N.W.2d policy provisions are attended 297. that where ambiguity are be construed I respectfully dissent. and in favor strongly against the insurer pro My view is that such of the insured. McCALEB, (dissenting). accords and it ambiguous,
visions are not The language of the insurance is- courts of with the views of numerous precise and unambiguous. Hence, is. there similar jurisdictions construed have necessity interpretation; Lum herein. verbiage I do insurance tract is the law parties between the and. of New Co. Casualty Insurance Mutual ber should be enforced as written. Article- 571; Stukes, Cir., F.2d 164 4 York v. 1901, Civil Code. Co., Casualty Fire & American Webb v. 252; Sure 714, Standard 148 Fla. 5 So.2d (c) (d) Exclusions declare that the- v. New York Company ty Casualty & injuries not cover does em- 446, App.Div. Co., Casualty 281 Maryland ployee “insured” and de- 215 795; Johnson, Pearson v. 119 N.Y.S.2d “insured”, fines the word when used un- 357; Continental 480, N.W.2d Minn. 10 qualifiedly, to include the “named insured’” 67, Pierce, Miss. 170 Company v. Casualty any person using the vehicle with Mutual 279; v. 154 Gibbs So. consent named insured. Wisconsin, 224 Liability Insurance Co. of plaintiff’s since husband employee- was an 377; Mc- Birrenkott v. 462, 31 S.E.2d N.C. the named 725; 581, N.W. 276 Manamay, 65 S.D. was excluded my mind, To Casualty Surety & Standard Vaughn v. simple it is as as that and further com- 556, 671, 184 Tenn.App. S.W.2d Co., 27 superfluous, except ment say that I am- Sup.Ct.; Associated denied
certiorari agreement in full expressed' with the views Wachsmith, 2 Corporation v. Indemnity Appeal, the Court of 353, see 72 So.2d 531; 420, 127 A.L.R. P.2d 99 Wash.2d many authorities support its. Accident Insurance v. Standard Shawcroft opinion. 127 seq. See A.L.R. 531 et P.2d Detroit, 987. Wash. ofCo. respectfully jurisdic- I dissent. of other few tribunals Even