Hancock v. Tri-State Insurance

Melvin Mayfield, Judge, dissenting. I dissent from the majority opinion in this case. I agree with Judge Cooper’s dissent which states that the insurance, policy involved is ambiguous. However, we must construe the policy against the insurer who wrote it and in favor of the insured. Countryside Casualty Co. v. Grant, 269 Ark. 526, 530 , 601 S.W.2d 875, 878 (1980). When that is done I believe the matters submitted by the parties on the motion for summary judgment mandate an interpretation in favor of the appellants in this case.

The policy involved here has a severability of interest clause in Section “V” of the policy. Subsection “D” thereunder is almost exactly like the one involved in Barnette v. The Hartford Ins. Group, 653 P.2d 1375 (Wyo. 1982). That case makes it very clear that the policy in the present case covered Mr. Videll. As that case explains, the reason for this clause is to insure an employee for liability when he would not otherwise be insured under the policy. The majority’s reasoning in this case is backwards. Because the driver in this case was covered by workers’ compensation is the very reason the policy in this case contained the severability clause. Moreover, the citation in the majority opinion to 12 Couch on Insurance 2d § 45:545 does not deal with this type clause. Section 45:549, at pages 949-50, does deal with this type clause. See Barnette, 653 P.2d at 1383 . Also, Barnette and two other cases holding the same way are referred to in the 1992 Supplement to Couch on Insurance at § 45:549. Furthermore, the Arkansas case of Julian Martin, Inc. v. Indiana Refrigeration Lines, Inc., 262 Ark. 671 , 560 S.W.2d 228 (1978), does not deal with this type clause. In fact, no case cited by the majority opinion which deals with this type clause supports the majority opinion.

The Barnette case is not easy to read, but it contains a good analysis, it collects the authorities, and the result it reaches, in my opinion, is right.

I dissent from the majority opinion.