# Federal Insurance Company v. Prestemon > Supreme Court of Minnesota · October 6, 1967 · 278 Minn. 218 URL: https://www.frixlaw.com/law-library/cases/9665631 ## Case - **Full name:** Federal Insurance Company and Another v. Dennis Prestemon and Others. Schmelz Brothers, Inc., and Another, Appellants - **Court:** Supreme Court of Minnesota - **Decided:** October 6, 1967 - **Citations:** 278 Minn. 218; 153 N.W.2d 429; 1967 Minn. LEXIS 858 - **Precedential status:** Published - **Opinion:** Dissent by Otis - **Judges:** Murphy, Peterson, Otis - **Cited by:** 54 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9665631 ## Opinion text Otis, Justice (dissenting). I cannot agree that there is any ambiguity or uncertainty in the terms of the liability policy written by Guaranty to cover Schmelz Brothers, Inc., the garage which owned the Chevrolet loaned to its customer, Donald Judkins, for his temporary use during the time Judkins’ Thunderbird was being repaired. If, as seems clear to me, the Guaranty policy excluded such use by Judkins, it is incumbent on Federal, which is Judkins’ own liability carrier, to defend and assume any liability imposed on Judkins. There can be no question but that the garage and its carrier, *233 Guaranty, contracted for only limited coverage of automobiles- owned by the garage in its business operations. The record discloses that the garage carrier substantially lowered its premium in consideration, of reduced exposure. It seems obvious to me that by its terms the policy contemplated coverage for cars owned and used in the garage business only by partners, executive officers, and other persons and employees specifically connected with the operation of the garage. As I read the policy, it took into account the fact that customers would invariably be insured by their own liability carriers and hence would need no duplicate coverage unless a garage-owned car happened to be driven by someone having no other insurance, in which case the garage insurer assumed liability. The pertinent provisions of Guaranty’s policy covering the garage are as follows: “A. Hazards Defined: “Automobile Hazard: í¡í Ofi s]* “(b) the ownership, maintenance or use of any automobile owned by the named insured in connection with garage operations while furnished for the use of (i) the named insured, a partner therein, an executive officer thereof or, if a resident of the same household, the spouse of any of them, or (ii) any other person or organization to whom the named insured furnishes automobiles for their regular use.” (Italics supplied.) As I construe the policy, the following limitations emerge: Liability coverage applied only to cars owned by the garage and used in connection with its garage operations; except where the driver of a garage car was not otherwise insured by some other carrier, coverage of garage-owned cars was limited to partners, executive officers and their spouses, and other officers, owners, or employees who had access to garage-owned vehicles consistently and continuously while connected with the company, either for their own personal use or for company business. I cannot see how the words “other person or organization to whom the named insured furnishes automobiles for their regular use” *234 can possibly be construed to mean a customer borrowing what is called a “loaner” as a temporary substitute while his own car is being repaired. The definition of “regular” which I believe governs is “steady or uniform in course, practice, or occurrence.” 1 To say that a customer who borrows a garage car for a day or for several days or even a week has been furnished an automobile for his regular use simply flies in the face of what I regard as the plain and ordinary distinction between regular use and temporary use. Equally important, it occurs to me that under the doctrine of ejusdem generis the words “other person or organization” must necessarily be included in the class referred to immediately preceding that phrase in the garage policy, namely, partners and executive officers. In other words, I believe that “other person” was intended to be limited to others identified with the garage such as salesmen, mechanics, and other employees, many of whom are accorded the privilege of retaining for their personal use company vehicles for extended periods of time. In consideration of the reduced premium for this type of coverage, it seems to me that the garage carrier intended to confine its coverage to a group of drivers over whom the garage could exercise some supervision and control without insuring blindly all prospective customers whose identity, driving habits, and numbers were necessarily unknown to the garage and its insurer. The end result I propose seems just to me in that the Federal policy, covering the customer Judkins, assumed the risk of a driver known to it, whether that driver was using his own vehicle or a “temporary substitute.” Since the cause of an accident is almost invariably the driver and not the vehicle, it does not seem unfair to require the driver’s own company to assume responsibility for his negligence rather than arrive at a strained construction to impose liability on the blameless owner of the car involved. Here the exposure of the driver’s own carrier was not in any way increased because it was still only insuring one driver without respect to what car he was using. To hold the garage carrier liable, on the other hand, would impose a burden on the garage *235 and its carrier wholly unrelated to any cause or connection between the car which it furnished and the happening of the accident. It was the driver insured by Federal who caused the accident and not the car furnished by Guaranty’s insured. For the reasons stated I submit that at the time of the accident the “loaner” car furnished by the garage to its customer Judkins was clearly a temporary substitute vehicle and not one assigned for the regular use of someone connected with the operation of the garage as I believe the policy contemplated. For that reason I respectfully dissent and would hold that the garage policy with Guaranty did not aiford Judkins coverage at the time of the accident and therefore his own carrier, Federal, should assume the burden of the defense and any liability imposed on Judkins. Peterson, Justice (dissenting). I join in the dissent of Mr. Justice Otis. Webster’s Third New International Dictionary (1961) p. 1913. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9665631. Public record. Not legal advice.