where coverage of the injured party was directly excluded by a provision excluding obligations arising among fellow employees
How later courts described this case
- where coverage of the injured party was directly excluded by a provision excluding obligations arising among fellow employees
Written by the judges who cited it.
The opinion
James R. Cooper, Judge, dissenting. I dissent because the insurance policy at issue contains conflicting clauses which render the question of coverage ambiguous, requiring us to resolve the issue against the drafter.
As noted by the majority, the policy excludes coverage for injury to “any fellow employee of the insured.” The effect of this cross-employee exclusionary clause, by its terms, depends upon the definition of “insured.” However, the definition of “insured” contained in the policy incorporates a severability of interest clause which provides that the “coverage applies separately to. each insured who is seeking coverage or against whom a claim or ‘suit’ is brought.
The relationship between the cross-employee exclusionary clause and the severability of interest clause was the subject of an exhaustive analysis by the Wyoming Supreme Court in Barnette v. Hartford Insurance Group, 653 P.2d 1375 (Wyo. 1982). The Barnette Court held that the effect of combining these clauses was to permit coverage where the injured person is not the employee of the specific insured who seeks protection under the policy. There is extensive authority for the proposition that the employee exclusion clause is not effective unless the employee in question is an employee of the particular person against whom he is asserting his claim. See, e.g., 12 Couch on Insurance 2d § 45:581 (rev. ed. 1981).
As the Arkansas Supreme Court has note$, an insurance policy is to be construed strictly against the insurer. Employers Mutual Liability Insurance Co. v. Farm Bureau Mutual Insurance Co., 261 Ark. 362 , 549 S.W.2d 267 (1977). The Employers Mutual Court further noted that conflicting judicial interpretations place insurance companies on notice that terms subject to such contradictory interpretations are ambiguous. Id. at 365 . In light of the many cases holding that the employee exclusion is effective only when the employee in question is asserting a claim against his own employer, see 12 Couch on Insurance 2d § 45:581 (rev.ed. 1981), I submit that an ambiguity arises in the case at bar which should have been resolved against the insurer.
I respectfully dissent.