Richard J. Carey v. State Farm Mutual Insurance Company
367 F.2d 938
4th Cir.
1966
Check Treatment

him. without a complains company’s appeal cy, Richard As the defendant BRYAN, Circuit fective for the over the paid Carey ed automobile” contained in another standard ered Foster ship of proffered evidence “family surance Court’s conclusion that Before This SOBELOFF, Circuit On $25,000, September Cecil a issued on December amount of collided with judgment under covered under judgment result September accident. Foster as covering litigation grows the declaratory policy, the automobile” defendant interpretation Foster, J. was what under liability jury, SOBELOFF, Chevrolet was covered this insurance Carey, automobile. $45,000. maximum unsatisfied. 13, period the exclusion of certain insurer.1 policy, an entered a named a 1961 Chevrolet Carey insurance challenges 1, Judges. 1961. bearing to Cecil son of action to determine policy in in force at the time the 1961, company leaving of the term Hudson judgment Judge: injured defendant calls It is not made BOREMAN 20, insureds and out of a liability policy. the automobile 2The June on the owner- Court, policy, issued Carey recov- the District Foster liability in- demand $30,000 of Foster defendant insurance plaintiff, disputed 27, 1961 amount against dispute Foster. It also sitting driven “own- by a $15,- poli- ef- a this action for a the policy and therefore under its *2 $30,000 The District Court judgment amended to insurer’s denial let was definition inition “ insureds The (c) By (b) (a) ‘Owned *3 plaintiff,3 Persons “PART [******] (2) (a) (1) endorsement a provided ity policy, a insured ity sured, provided cy, a trailer owned Part III it is described in family policy private passenger, private balance With the named insured mobile, automobile, sion dent of use thereof which “owned automobile” within automobile described in under provide Automobile’ I —LIABILITY Insured. “owned of the named other respect the is passenger, * * * Cecil Foster. Part still acquired liability Carey declaratory “family as follows: same provides person gave judgment provided is to the owned ownership of automobile” I: due him with with means policy, household, policy period, following are farm or the automobile” insured;” using that: respect the named named judgment. the actual coverage. Upon any brought the def- Chevro- permis- auto- resi- poli- such util- util- the in- company pri- company for the amount insurance insures all policy, automobiles, this passenger satisfaction of the further vate farm liability $25,- F.Supp. (E.D.Va.1965). family policy 1. 247 under 000.00 and under tlie Chevrolet Insur- Each contained “Other Recovery $15,000.00. clause, ance” was therefore total 2%0ths covering had other insured insurance e., $25,000.00. $40,000.00, i. compa- loss described ny propor- pursuant would be liable for that This amendment equal tion loss the ratio Admin. No. the State Cor- Order 6536 of poration Virginia, maximum over effective Commission the total amount of valid insurance March The maximum force on the automobile. agree the District automo- We with insured in its the Chevrolet biles owned acquisition and was insured under on the date of such automobile. The insurer the named insured notifies following express of its bound terms con within 30 ” terms, tract insurance. When those such date ordinary sense, convey taken in their plaintiff maintains that when unambiguous meaning, clear a court gil the Chevrolet indulge ferreting cannot out hidden ' 24,1961 then, on June with- June meanings unexpressed intentions days, gave fact to the notice of this relieve the insurer of liabilities assumed obtaining by applying insurer for and ad- ambiguities arise, When vehicle, ditional controlling; the intent of the *4 became an under the “owned automobile” any would, but if doubt remained it family policy definition and was rule, the familiar be resolved in favor of policy thus insured that on the date the insured since the formulated insurer of the accident.4 The insurance com- language policy. Imperial in the See pany that an examination of answers the Casualty Indemnity Relder, Co. v. facts did not in- reveals (8th 1962); Appleman, F.2d 761 Cir. tend to insure Chrevolet under Insurance and Law Practice § family policy. position Its is that purchased spe- Foster additional cific insurance on the he there- Chevrolet However, ambiguity. find no only spe- elected to insure it under the defendant, (c) (2), express in clause policy any cific to insurance and waive ly after-acquired undertook to insure all (c) available under clause of the private passenger insured, vehicles of the family policy. The insurer also contends provided acquisition notice the automatic insurance clause con- given gave days. Virgil within 30 Foster merely stituted an irrevocable offer to requisite requested notice when he newly acquired vehicles, insure defendant transfer the insurance required accept insured was Plymouth on his old automobile —a —to thirty days acquisition of a new position the Chevrolet. The defendant’s argues vehicle. Foster’s operated this notice either as a waiv application notification in the form of an er or counter-offer is untenable. Fre specific for additional insurance cover- quently, automobile owners are unaware ing operated the Chevrolet as a counter- of the extent of offer, accepted by upon which was is- it long, policies. their Policies are policy suance of the June detailed, printed type and small as so taining terms conditions different discourage reading by close ordi policy.5 those in the In- nary policy precisely holder to determine general voking principles contract of of- coverage provided. un It would be acceptance, company says fer and an to ascribe to reasonable original rejected its “offer” was protec intention to waive additional subsequent “counter-offer” and the specific reject policy issuance tion to which entitled or to Chevrolet. applying specific it for insurance 5. The limits of the quisition named insured on the 000.00 to each ger $ [*] automobiles it did not insure “all [*] ft [of person has made no contention family policy date of such private passen- $50,000.00 were vehicle] $25,- ac- inated towing damage. $5,000.00 each accident Coverage $5,000.00 respectively. were and labor costs was the Chevrolet The limits for death and only $15,000.00, $30,000.00, each accident for personal disability injuries; entirely Chevrolet property elim- language If intend- held the Chevrolet.6 the defendant The court given during required newly acquired insure ed to that, long specific no insurance was the life of conse- coverage. them, quently, dis- out have there was taken to cover it could cussing If, provi- expressly. stated the “owned automobile” language suggests, sion, however, it is anomalous to have two the court used automobile, policies covering highly pertinent present case: same specific language obviating this could reading of the from a “It is manifest family policy. have been included in the pur- provisions Indeed, simple pro- omission of the pose all risks insure was to vision would avoided all arising operation of the out question. provision what means and, in the described says. addition, provide at the possible after- moment of earliest Moreover, of a fur inclusion automobile, a re- adjustment provision for a ther auto- placement additional in the event mobile, provided insured notified acquisition additional change company of such strongly coverage.7 implies While no period prescribed within the premium adjustment policy.” at 314. 133 S.E.2d *5 family policy, sequence of events the given was that notice Here it conceded acquisition of the from the Chevrolet required policy.8 only took several the the accident date may well have weeks. The defendant ours, strikingly case similar In a contemplated premium adjustment in a 9 up- favorably relied in Celina arid cited future, delay billing for the but case,10 by the District Court might be en additional Eighth insured the held the Circuit it from titled to claim would not relieve provision. the under “owned automobile” obligation Alter the of its contract. company There natively, poli premium on the a 1956 issued a may cy computed reflect have been containing an “owned auto- Oldsmobile possible acquisition of an additional auto later, months mobile” clause. Several mobile. purchased the insured a 1959 Oldsmobile Supreme Appeals of The another on it with took out insurance ginia given company. construed “owned automobile” then No was notice provision Subsequently, in Celina Mutual Ins. Co. v. Olds- defendant. 1959 Cohen, 204 133 Va. S.E.2d 311 mobile was involved in defendant, question gave there insured to the notice given expiration during period, policy after the ac- notice both coverage policy quisition to afford effective 1959 Oldsmobile under the “owned clause. automobile” 1959 Olds- accident. Court, opinion upon request, shall, 6. fur- of the District See insured 384; Imperial F.Supp. proof at see also of the number of reasonable nish * ** Casualty Relder, descrip- Indemnity Co. and a & such F.2d at 763. thereof.” tion acquires Odham, 7. “If the named owner- insured Insurance Co. v. But see Reserve (hold ship private passen- of an additional 125 S.E.2d 874 203 ing ger, no on construction turned op company thirty relating Virginia within he shall inform statutes to the delivery. days following engaged transport date of vehicles eration adjustment Any premium necessary passengers compensation.) ing shall change of such be date at 314. 133 S.E.2d acquisition in accordance with the by company. F.Supp. manuals use- 384-386. family- supplied money payments mobile was covered for installment impair finding the court stated: would not owner; was an may insured “It well be ownership. does not rest on sole See pur that he had fact unaware Paul-Mereury Indemnity Co., Davis v. St. ‘other insurance’ chased additional (4th 1961). 294 F.2d Cir. appellant’s as it is referred to the fact obviate That does not Affirmed. ** paid for purchased and after-acquired extended Judge BOREMAN, (dissent- Circuit thereof no notice automobiles and ing) : given to be ex to the needed my respectfully disagree- I must note policy period cepting only * * * » ment with reached result the ma- Casualty Imperial In jority. “Ownership” of the 1961 Chev- Relder, supra, demnity F.2d Co. v. my rolet which think brothers cov- at 766. “family” ered issued to between differences notable 20, 1960, by on December State first, Imperial there our ease and Farm, raises a of fact to be given at time could determined trier of fact. second, in- policy period; Looking to the evidence note that surance on the Virgil’s son; Cecil Foster was Cecil was company. Neither issued another working away Pittsburgh, home in significant decision distinction is Pennsylvania, and needed a car for travel case notice was of this case. In each place employment; and from given policy; prescribed also Plymouth owned a which was cov- “other in- there is indication separate policy ered of insurance is- issued surance” limited to Farm; Plymouth sued State company. a different *6 (purchased traded in on the Chevrolet on II 1961) part perhaps June as of all payment the down and the balance was Finally, turn to the being through G.M.A.C.; financed Cecil assigned by appellant to the District minor, eighteen years awas old, and testimony, on exclusion of elicited Court’s responsible cosigner needed a to com- Virgil Foster, that cross-examination of plete financing arrangements; Virgil payments Chevrolet, all with the on the signed financing son; papers with his immediately exception fol of last one monthly payments Cecil made all the as lowing accident, his were made they except came due the last one which son, Appellant Cecil Foster.11 deems injured fell due after he was in the acci- testimony this on the relevant Virgil it; dent paid Virgil and Virgil actually “owned” obligation sidered it an of as Cecil’s policy provi the Chevrolet. Under by Virgil’s shown testimony “Yes, sir, — only after-acquired sions I obligation over”; took his the State “owned” are the insured covered. agent merely Farm instructed Granting of relevance the source separate policy transfer Plym- on the payments, prejudicial er we find outh to the Chevrolet and this was done. ruling. ror The record shows “family policy” provided that title to the Chevrolet was taken in acquired passenger car, the names of well as In as Cecil. owned addition, although on specifically testified cross-exami named insured not “standing good nation for he was described in the could be covered * * payments upon the named insured within may thirty paid The fact following that Cecil the date of such Record, pp. 51-54. Id. necessity acquisition. State because of notice which name or convenience agent minority require- had that Cecil due to Cecil’s Farm’s unpaid Virgil, acquired purchase price gil, had a Chevrolet ment be Virgil’s objection, separate policy Upon secured. and that a court ex- Plymouth, tending separate prove evidence for which a cluded actually paid, had to Chevrolet was been was to be transferred Cecil upon apparent theory the Chevrolet. this was impermissible part effort The Chevrolet involved “go beyond State Farm to the mere term shown on the certificate as title ‘ownership’ applies it title joint names of Cecil Fos- * * * show that in fact R. Cecil may is ter. understandable how this Foster was the true In other owner.” have occurred since obvious- both words, the excluded all evi- ly signed papers at the the car time dence which would conflict with such ques- and financed. Two ownership supplied evidence of naturally tions arise which not satis- title certificate. Why factorily (1) answered. would Mutual Auto. Cecil be included in Farm such evidence own- State Scott Co., ership the title certificate Ins. Virgil, (1961), ownership a motor vehicle insured in the George acquiring E. Bower his the car for himself ? One involved. years Why pay Robert, son, would his ? was nineteen father’s car who father, pur- age The endorsement and resided with provides used car qualifying from a chased automobile owned, pur- cash. Of automatic must be dealer $250.00 paid price father the named insured: $50.00 chase paid balance of $200.00. Robert “(c) private passenger, A in the father’s titled automobile was ownership minority. The son’s name because acquired by named in- held: court policy period, pro- sured * * cer- title vided “While it true George E. Bower to showed tificate ownership persuaded true am automobile, was not the owner of the Chevrolet was a most relevant issue only prima facie evi- conclusive but in the case. ownership. United States dence The certificate title to the Chevrolet *7 Bain, 191 Va. Cas. Co. v. names of 814-815.” was introduced evidence and foregoing Bain case cited stituted direct evidence of own- cer- quotation held that the title it was below, ership judge vehicle. ownership in conclusive of not tificate Chevrolet, referring titling Virginia, “was non-titleholder during the that “I assume observed trial consequently the title- owner” sole put one both names because ownership the vehicle. had no holder boy.” eighteen year old Counsel show, Since, opinion, my in cross- State Farm wished it was examining Virgil son, Foster, that his evidence show exclude Cecil, Chevrolet, car and was the sole owner of the the true owner of the partly the title was in the father’s ordered. trial think new should