Continental Casualty Co. v. Phoenix Construction Co.

CARTER, J.

I dissent.

I agree that the Transport insurance covered Mason and Oilfields but do not agree that the Continental insurance did not cover Oilfields and Mason. The majority opinion holds that Mason and Oilfields are not covered by Continental because of an endorsement on the Continental policy which it says excludes the operation of automobiles.

Oilfields and Phoenix were engaged in a joint venture. Continental issued a policy to Phoenix as the named insured. The policy was mainly concerned with coverage of liability arising out of the operation of automobiles. At the time the policy was issued the endorsements here involved were attached. Both endorsements 202 and 208 were added at the same time, one following the other in attachment to the policy and both were typewritten. They read (202): “It is agreed Oil Fields Trucking Company is added as an additional insured in connection with construction operations conducted as a joint venture with the Phoenix Construction Company, Inc.

“It is further agreed that this policy excludes coverage for all operations of Oil Fields Trucking Company other than construction operations conducted as a joint venture with Phoenix Construction Company.” And 208 read: “It is agreed that this policy does not apply to automobiles owned, maintained or used by the Oil Fields Trucking Company, even though, they might be used in a joint venture operation with other named insureds.” These endorsements must be read together for they deal with the same subject. Inasmuch as they are both typewritten they are on an equal footing and one does not control over the other. Hence the rule, that *442 the typewritten controls over the printed part, relied upon by the majority, is not applicable.

Endorsement 202 expressly makes Oilfields a named insured along with Phoenix insofar as the two are engaged in a joint venture. Hence Oilfields is as fully covered as Phoenix, that is, to the same extent as if it had been named along with Phoenix in the policy, the main purpose of which was to cover automobile operations. Then comes endorsement 208. It is possible to interpret that endorsement to exclude operation of trucks owned by Oilfields and used in the joint venture as is done by the majority. However, it may be interpreted to be in direct conflict with 202 on the basis that 202 extends coverage to Oilfields as an insured and then 208 purports to take that coverage away. So viewed, the rule of construction against the insurer would require that 208 be ignored.

There is another wholly reasonable construction which limits 208 to joint ventures between Oilfields and Phoenix and others who might be insureds. It will be recalled that in making Oilfields an insured, 202 expressly mentions and makes it such an insured in joint venture construction operations between Oilfields and Phoenix by that name. Endorsement 208 then says that, as to automobile operations by Oilfields, the policy does not extend even though they might be used in a joint venture with other insureds. It is reasonable to interpret “even though” as “if” (May v. Missouri Pac. R. Co., 143 Ark. 75 [ 219 S.W. 756, 757 ]; Webster’s New Inter. Dict. (2d ed.), pp. 885, 77) and “other” insured as “different from that which has been specified” (Robinson v. First Nat. Life Ins. Co., (La.App.) 10 So.2d 249, 251 ; In re Nelson’s Estate, 152 Misc. 245 [273 N.Y.Supp. 268]; Webster’s New Inter. Dict. (2d ed.), p. 1729). Endorsement 208 then reads that the policy does not cover automobiles owned by Oilfields if they are used in joint venture operations with different insureds. We already have a joint venture expressly named in 202. A different one then would be a venture between Oilfields and some insured other than Phoenix. Hence where, as here, the liability arose out of the Phoenix-Oilfields joint venture and none other, 208 is not applicable.

Oilfields being a named insured, then Mason, its employee, the driver of the truck is clearly covered because the policy states that the insured includes “any person while using an owned automobile” if the use is by the insured “or with *443 his permission.” An “owned automobile” is one owned by the insured. Here the truck was owned by Oilfields, the insured, and was not hired from anyone.

The rule stated in Pendell v. Westland Life Ins. Co., 95 Cal.App.2d 766, 770 [ 214 P.2d 392 ], is particularly appropriate : “Exceptions in a contract of insurance which purport to limit the risk assumed by the insurer in the general provisions thereof are to be construed most strongly against the insurer and in favor of the insured and if susceptible of two meanings, the one most favorable to the insured is to be adopted. (Mah See v. North American Acc. Ins. Co., 190 Cal. 421, 424 [ 213 P. 42 , 26 A.L.R. 123 ]; Bayley v. Employers’ etc. Corp., 125 Cal. 345, 352 [ 58 P. 7 ].) The insurer is bound to use such language as to make the exceptions and provisions of the contract clear to the ordinary mind; and in case it fails to do so, any uncertainty or reasonable doubt is to be resolved against it. (Pacific etc. Co. v. Williamsburg etc. Co., 158 Cal. 367, 370 [ 111 P. 4 ].)” (Emphasis added.)

In accordance with that rule, endorsement 208, being susceptible of the construction that it does not take away the coverage given by 202, must be so construed.

I therefore agree with the holding of the trial court that since Mason and Oilfields are covered by Continental as well as Transport, the former as well as the latter is liable for the payment of the judgment recovered by Leming against Mason, Oilfields and Phoenix within the limits of their respective policies.

I would therefore affirm the judgment.

The petition of respondents Oilfields Trucking Co., Transport Indemnity Co., and Underwriters at Lloyd’s London for a rehearing was denied May 29, 1956 . Shenk, J., and Carter, J., were of the opinion that the petition should be granted.