*2 DUFFY, Before SCHNACKENBERG Judges. Judge. SCHNACKENBERG, Circuit Company, Trinity Universal Insurance corporation, plaintiff, has pealed from a court, by trial with- a amended, jury, complaint, out declaratory judgment by plain- filed for counterclaim, amended, filed tiff and a Insur- Farmers Mutual Automobile Company, ance a Wisconsin defendant.1 Haley, minor, John Donald E. W. brought Haley, father, diversity against suit Potter Service, Inc., corpo- Material an Indiana Metzger ration, Floyd (sic), bodily injuries John, allegedly occa- by the sioned Norbert Jacobs as driver defendants truck-bicycle collision in Indiana. April 1960, plaintiff, insurance carrier defendant, tendered to insur- ance carrier for the defense of Haley applica- suit and demanded the coverage tion of defendant’s insurance to Potter. Both refused defend- ant, which amade similar tender and de- application mand for the January 27, to Medsker. On 1961, plaintiff and defendant herein equally to contribute the total necessary litigation, sum to settle the case was settled. stipulated It has been as to the payments party amounts each litiga- expenses of said hereto settlement. Defendant’s to Medsker covered truck leased to Potter and a Ford driven by Jacobs, at the of the accident time Responsive pleadings plaintiff. filed both defendant bodily ship Potter and which Jacobs bore to $15,000-30,000 for limits of Medsker. The existing between and Jacobs was Potter liability “comprehensive Plaintiff’s excluded the clause $100,000- limits of policy” to Potter *3 quotation policy from which the above bodily 300,000 for by plaintiff in It taken its brief. was According law, there Indiana to subject was that Jacobs was to support to sufficient evidence was direction and control of Potter suffi- findings of of and conclusions legally cient to render Potter liable for employee of an was court that Jacobs negligence. That Jacobs’s In Jones Potter and Medsker. by plaintiff’s policy. was not excluded 279, 293, Furlong, Ind.App. N.E. 97 exclusionary Whether or not the clause (1951), court said: 2d effectively plain- excluded Jacobs from “It is inconsistent not coverage, tiff’s as insofar Jacobs was an person employeeof act as an same to employee Medsker, of is material not aspects person one in certain of pol- here. There was no exclusion of the employee an of and as transaction icy’s respect Potter with of to part 'of the in a different another Jacobs, of whom court [1933], Case business. McDermott’s employee found to be an of as 74, 77, 186 and 283 Mass. N.E. aswell Medsker. cases cited.” Truck- Jackson is same effect right To the claims a of 2. Plaintiff Freight Sys- Motor Interstate Co. v. rights subrogation of indem- to Potter’s N.E.2d Ind.App. 546, tem, 122 again against Jacobs, relying on nity (1952). to the Su- A transfer 575, 580 was excluded and that Jacobs contention was denied. Indiana preme policy. Plain- insured Furthermore, plaintiff and defendant provides policy : tiff’s at court stipulated in district Definition Insured. “III. The occurrence, tort place and the time unqualified ‘insured’ includes word being driven Jacobs truck and also includes named insured permission under and Medsker’s using an au- while owned subject lease, and Jacobs oral such automobile and 'a hired tomobile Ma- of Potter and control direction organization legally any person or materi- as to what at least Service terial thereof, pro- responsible use for the and as when and delivered als the actual use the automo- vided they were delivered where sufficient by is the named insured or with bile legally liable to Potter Materials render permission any negligence plaintiff language Jacobs an ad- embraces supplied.) (Italics Jacobs.” plaintiff’s policy under ditional insured argues compre- that its Plaintiff now operating Jacobs a hired because liability policy Potter as covered hensive permission. with Potter’s automobile apply did “not but named insured therefore, We, hold Jacobs was an automobile, hired plaintiff’s pol- additional any employee of owner thereof or icy. reject that we follows points Plaintiff out that owner.” such subrogation plaintiff’s claim was a hired automobile as de- the truck because right against and fined in its Medsker was its no such is an insured owner, undisputed- and that plaintiff’s policy. under ly proved that Jacobs driver was an objects Finally, plaintiff to the ac- “employee of such owner.” apportioning in of the court settlement, attorneys’ costs fees Unfortunately con plaintiff expenses ignored tention, incidental it has the dual relation- may employee same individual act as an a manner which and defendant in employer. than one more tiff describes as follows: unambiguous. provision losses The the tort “Medsker’s of% “any employee” all of excludes of the own- and of the tort court expenses er of a hired The automobile. fees opinion, effect, lan- restricts broad the tort defense of guage of the in the exclusion to the narrow con- be cept solely person $4,473.95; refers to a amount of of the owner of the hired and Potter’s “Jacobs’ % % automobile who stands no re- the tort tort losses *4 lationship to named insured which fees and ex- and the would make the latter for such liable pro- defenses’, penses ‘in their person’s acts. insurers, rated between the 15/115 by defendant, or to be $966.98 $6,446.52 or and 100/115 tiff.” having pay- concluded The court totaling $5,- made
ments 937.37, sum of exceeded $496.44
$5,440.93 which defendant should have
contributed, judgment entered against plaintiff and for defendant America, UNITED STATES costs, from which this $496.44 Appellee, peal was taken. up- This action of the court was based TOLUB, Irving Appellant. parties stipulation establish- No. Docket 27603. the tort claims had been settled for $8750. States Court of United Second Circuit. approve apportionment We Argued loss Oct. insurance the two carriers Decided Oct. case. this
For these reasons the
district court affirmed.
Judgment affirmed. Judge (dissenting).
I reverse. The issued
plaintiff provided: “ * The insurance with re- organization the named than insured does
other * * * apply:
“(d) any hired au- tomobile, to the owner thereof or of such owner See, also, D.C., F.Supp. my opinion Jacobs could have been an additional employee. he if were not Medsker’s was,
But Indiana cases relied recognize upon