123 S.E.2d 108 (1961) 256 N.C. 91

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
v.
EMPLOYERS' FIRE INSURANCE COMPANY; Andy Foppe, Inc.; Anthony F. Byrnes and Francis Ryck.

No. 239.

Supreme Court of North Carolina.

December 13, 1961.

*110 John H. Small, Charlotte, Deal, Hutchins & Minor, by Roy L. Deal, Winston-Salem, for plaintiff, appellant.

Francis O. Clarkson, Jr., Charlotte, for defendant John Francis Ryck, appellant.

Carpenter, Webb & Golding, by William B. Webb, Charlotte, for defendant The Employers' Fire Ins. Co., appellee.

HIGGINS, Justice.

The plaintiff admits its policy covers Ryck's liability for the accident which occurred while Ryck was operating the 1959 Nash with the consent of its owner, Foppe, Inc. It contends, however, its coverage is excess insurance and the defendant Employers' garage policy provides the primary coverage which should be exhausted before claim is asserted against the plaintiff. The plaintiff further contends (1) that Ryck, while driving Foppe's Nash with Foppe's consent, was "an additional insured" under the garage policy and hence within its coverage; (2) that the exclusion clauses in the garage policy remove from the coverage only the employees of Ryck and those whom Ryck pays workmen's compensation; (3) under the severability of interests clause in the garage policy, Ryck is afforded separate, complete coverage for injury except to his own employees.

On the other hand, Employers' insists its garage policy does not cover Ryck's liability to Foppe's employee, Anthony F. Byrnes, who at the time of the injury was Foppe's employee, acting within the scope of his employment. In addition, Foppe and his industrial insurance carrier paid workmen's compensation to Byrnes for the injury. Hence, Foppe and Employers' contend the garage policy specifically and in plain terms *111 excludes Foppe's employees (of whom Byrnes is one) from all coverage under the policy.

The controversy presents to this Court for the first time the legal question whether the exclusion clauses in Employers' garage policy refer to and exclude from coverage Ryck's employees or Foppe's employees. On this question appellate courts in other jurisdictions are in disagreement. The contentions pro and con, with supporting authorities, are reviewed in the well-written opinion of Judge Weick in Kelly v. State Automobile Insurance Association, decided on April 13, 1961 by the Court of Appeals for the Sixth Circuit and reported in 288 F.2d 734. Also, many cases dealing with the question are cited and analyzed in 50 A.L.R. 78, et seq. The decisions cited by the plaintiff hold the term "insured" as used in insurance policies means the named insured and any additional insured included in the coverage. However, a substantial number of the decisions go one step further and hold the term "employee of the insured" means the employee of the insured who invokes the protection of the coverage, and unless the injured is the employee of the person who causes the injury the exclusionary clause does not prevent recovery against the insured and the insurer. Some of the cases supporting this view are: Pullen v. Employers' Assurance Corp., 230 La. 867, 89 So.2d 373; Motor Vehicle Casualty Co. v. Smith, 247 Minn. 151, 76 N.W.2d 486; Cimarron Ins. Co. v. Travelers Ins. Co. (Or.) 355 P.2d 742; Kaifer v. Georgia Casualty Co., 9 Cir., 67 F.2d 309 (Oth Ct.); Sandstrom v. Clausen's Estate, 258 Wis. 534, 46 N.W.2d 831. In considering the Wisconsin cases it should be noted the state statute requires the inclusion of a clause extending protection to all persons (with certain exceptions) who operate an insured's vehicle with the owner's consent.

When Employers' and Foppe entered into the garage insurance contract we are certain the employees they intended to exclude were Foppe's employees. Without support is the argument that some other employees and not Foppe's were within the contemplation of the parties when they made the contract. We are certain that not within the contemplation of the parties were the employees of Ryck who was under the wheel of Foppe's vehicle for a few minutes and by his carelessness injured one of Foppe's employees who at the moment of injury was about his employer's business. To arrive at the conclusion Ryck's employees and not Foppe's are excluded requires complicated, circuitous and involved reasoning.

The Supreme Court of South Dakota, in Birrenkott v. McManamay, 65 S.D. 581, 276 N.W. 725, 726, succinctly states the defendant's side of the controversy: "Appellant contends upon this appeal that the exemption clause relating to `employees of the assured' should be limited to employees of the person for whom the policy is invoked, * * *. This court cannot agree with the contention of appellant. * * *"

In the case of Lumbermen's Mutual Casualty Co. v. Stukes, 4 Cir., 164 F.2d 571, 574, Judge Parker stated the rule: "* * * this clause (excluding employees) * * * [used] in the policy shows clear intention that coverage shall extend only to liability to the public and that there shall be no coverage in the case of employees of an insured." To like effect is Webb v. American Fire & Casualty Co., 148 Fla. 714, 5 So.2d 252; Travelers Insurance Co. v. Ohio Farmers Indemnity Co., 6 Cir., 262 F.2d 132; Standard Oil Co. of Texas v. Transport Ins. Co., Tex.Civ.App., 324 S.W.2d 331; Pearson v. Johnson, 215 Minn. 480, 10 N.W.2d 357; Associated Indemnity Co. v. Wachsmith, 2 Wash.2d 679, 99 P.2d 420, 127 A.L.R. 531.

In this case Foppe bought an insurance policy to protect it in the operation of its garage business. Its employees, while in the discharge of their duties, were exempt from coverage. These employees had separate coverage under workmen's compensation. The premium paid to Employers' for the coverage furnished in the garage policy was based on the risk involved, *112 expressly excluding the insured's employees. According to plain, direct, and simple reasoning, Byrnes, as one of Foppe's employees, is excluded from the coverage and neither Foppe nor Foppe's insurer is liable.

Judge Patton gave effect to the plain language of the policy by holding Foppe and Employers' are not liable for Byrnes' injury. Notwithstanding the plaintiff's excellent brief, earnest argument, and the recognized rule of construction in favor of the insured and against the insurer, we think the sounder view and the better reasoned cases support the judgment entered in the court below.

Affirmed.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. EMPLOYERS' FIRE INSURANCE COMPANY; Andy Foppe, Inc.; Anthony F. Byrnes and Francis Ryck.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
v.
EMPLOYERS' FIRE INSURANCE COMPANY; Andy Foppe, Inc.; Anthony F. Byrnes and Francis Ryck.