Automobile Underwriters, Inc. v. Camp ( 1940 )

On Petition for Rehearing. Appellee, in her application for a rehearing, waives all questions presented in her original brief except one, and, as to that question, appellee very earnestly insists that this court had overlooked some of its former decisions which she contends are almost identical from a factual standpoint with the case at bar. The proposition is thusly stated by appellee.

". . . with the two ``riders', defendant's Exhibits ``A' and ``B' considered as a part of the policy, there is such ambiguity in the policy, considered as a whole, as requires the court to apply the rule it has so often announced and followed, that when the language of an insurance policy is capable of two constructions, that construction must be adopted which is most favorable to the insured, that which affords indemnity rather than that which denies it."

In support of her contention that the policy is ambiguous, she points out that clause "A" of the "rider", designated as defendant's Exhibit "A" purports to afford protection to appellee because, by this clause the appellant agrees:

". . . to pay any loss by reason of liability imposed by law upon the subscriber . . . for damages, on account of bodily injuries including death resulting therefrom, accidently inflicted upon any person or persons as the result of, accident occurring . . . while this policy is in force . . . caused by the use or operation of the automobile described herein . . ."

In her brief on rehearing she says:

"This clause is certainly broad enough to include the appellee Camp since she is clearly a ``person' and her injuries were the result of use and operation of the automobile covered by the policy."

She further states:

"The court must surely attach some importance to the fact that no where in clause ``A' of the ``rider' (defendant's exhibit ``A') is there any language either directly stating, or even susceptible of an inference, that the coverage thereby afforded is limited by language found elsewhere."

She also points to the provisions of condition "J" of the so called "master-sheet". Clause "J" is a general insuring clause. We quote the following from page 7 of appellee's brief.

"The unequivocal statement in two different places in the policy that it indemnifies insured ``against liability imposed by law for damages on account of PERSONAL INJURY TO OTHERS' forbids a limitation entirely cutting off such indemnity for injury to an ``occupant' of insured's car, ``hidden away in small type in another part of the policy,' with nothing whatever to call such limitation to the attention of the insured."

Upon this point she leans heavily upon the case of Hessler v.Federal Casualty Company (1921), 190 Ind. 68, 129 N.E. 325, and argues that the provisions above pointed out bring this case clearly within the law as announced in that case. A reading of the Hessler case reveals the distinction in the two cases. In the Hessler Case the action was upon a policy of accidental insurance for the sum of $500.00. On the back of the policy, in bold letters, it was stated that,

". . . it also covered all bodily injuries caused by accidental means, such as . . . gun shot wounds . . . injuries inflicted by robbers or highwaymen . . . at home, in the office, store, shop," etc.

There was also the provision in the policy that the insurance was subject to all the conditions and limitations therein contained and endorsed thereon. Printed in small print there were three clauses. Each contained conditions or limitations. In clause "M" it was provided that if:

". . . death, disability or loss, was due wholly or in part to, or resulting directly, or indirectly from, injuries intentionally inflicted upon the assured by himself or by any other person, . . . the limit of the company's liability shall be twenty per cent of the amount which would otherwise be payable under this policy."

The admitted facts in that case were that the assured was shot while he was working in the store, by a person who entered the store for the purpose of robbery. It will be noted that the part referred to above as being on the back of the policy, was in fact a part of the body of the policy itself, but the policy was so folded that the quoted part formed one side of the back.

The following excerpt from the last page of the opinion clearly states the court's views on this question:

"There is hardly room for doubt that, when the policy with the quoted statement printed on the back of it was presented to the insured in soliciting his application for insurance and collecting the initial premium, he would understand that he was insured for $500 against death inflicted by a gun in the hands of a robber who might invade his working place, and that the appellee company printed those words below the application on the back of the policy with the intention that the insured should so understand his contract. The construction thus suggested to induce the execution of the contract and the payment of premiums must be adhered to in settling for a loss covered by the policy."

A different situation presents itself in the case at bar.

We must keep in mind that, in determining whether there is ambiguity in the policy here in question, appellee Camp is in the same position as the insured Summers, and that she can 11. take no position different from the position Summers could take had he paid the judgment and instituted this action against appellant on his policy. So, we must consider whether the insured Summers was in any position to say that the protection afforded by the terms of the policy extended to occupants of his car. When considered with this fact in mind, it seems to us the mere statement of the proposition answers itself. It will be remembered that in his (appellee Summers) application for insurance, he was asked the question whether he wanted "occupancy coverage"; to which question he answered, no. On two different occasions in his application for a transfer of his insurance to another automobile he stated on both occasions that "occupancy coverage" was not wanted. How could it be said in view of the above facts that there was ambiguity in the language of the policy, when the policy contained a provision, excluding liability for injury to occupants of the Summers' car in compliance with his own request. Could Mr. Summers be heard to say that there was an ambiguity in the language used, and that the court should so construe the general insuring clause so as to include injuries to occupants, when he, by his own written request, not once, not twice, but three times requested that the policy should contain a provision which would exclude liability for injuries to occupants of his car? He, in substance, said to the appellants herein, I make application for liability insurance, but do not desire protection for injuries suffered by occupants of my car. This risk I will assume myself. He received exactly what he requested. There is not the slightest hint, that the policy was not what he contracted for and just what he paid for, or that Mr. Summers did not fully understand all the terms of the policy.

By the terms of the policy the application was made a part thereof. It cannot be said upon the record in this case that Mr. Summers applied for insurance to protect him from injuries resulting to occupants of his car. It is undisputed that he expressly requested that such protection be not included. The policy issued and accepted by Summers accomplished just that thing. Clause "F" of "rider" "A," marked defendant's "Exhibit A," accomplished the expressed desires of Mr. Summers. He received just what he requested and paid for.

The contract clearly expressed the intention of the contracting parties, and Mr. Summers is making no contention to the contrary. Contracts are made to express the intention of the 12. parties. When contracts are so written as to express the undisputed intention of the parties, courts are without power to change them, even upon application of a third party. The other case relied upon by appellee is Masonic Acc. Ins. Co. v.Jackson (1928), 200 Ind. 472, 164 N.E. 628. We are unable to see how this case could be construed as lending any support to appellee's position in this case. It reiterates the well-settled rule as to construction of an ambiguous clause in an insurance policy. We have no intention to modify the rule by this opinion.

We have read appellee's brief on rehearing carefully, and while we were convinced of our position as expressed in the original opinion, we were induced by the earnestness of counsel for appellee in his brief to reexamine the question and further express our views upon the subject. Upon reconsideration of the question we find no occasion to change or modify what we have heretofore said.

Rehearing denied.

NOTE. — Reported in 28 N.E.2d 68, 128 A.L.R. 1024.