David Kern, a Minor, by Arthur Kern, His Next Friend, Appellant, v. Liberty Mutual Insurance Company, Appellee, 398 F.2d 958 (8th Cir. 1968)

`* * * It it true that where the terms of a policy are of doubtful meaning, that construction most favorable to the insured will be adopted. (Citations.) This canon of construction is both reasonable and just, since the words of the policy are chosen by the insurance company; but it furnishes no warrant for avoiding hard consequences by importing into a contract an ambiguity which otherwise would not exist, or, under the guise of construction, by forcing from plain words unusual and unnatural meanings.'

`Contracts of insurance, like other contracts, must be construed according to the terms which the parties have used, to be taken and understood, in the absence of ambiguity, in their plain, ordinary, and popular sense. (Citation.) * * *'

"The Supreme Court of Missouri has stated the rule as follows:

`* * * The policy is a contract. Plain and unambiguous language must be given its plain meaning. The contract should be construed as a whole; but, in so far as open to different constructions, that most favorable to the insured must be adopted. (Citation.) However, as said in 14 R.C.L., § 103, p. 931, the rule "does not authorize a perversion of language, or the exercise of inventive powers for the purpose of creating an ambiguity where none exists."

"Wendorff v. Missouri State Life Ins. Co., 318 Mo. 363, 1 S.W.2d 99, 101, 57 A.L.R. 615, 619; Aetna Life Insurance Company of Hartford, Connecticut v. Durwood, Mo., 278 S.W.2d 782, 786."

Also see: McMichael et al. v. American Insurance Company, 351 F.2d 665, 669 (8 Cir. 1965); Looney et al. v. Allstate Insurance Company, 392 F.2d 401, 405 (8 Cir. 1968); and Giokaris v. Kincaid, 331 S.W.2d 633, 86 A.L.R.2d 925 (Mo. 1960).

It is our opinion that an interpretation such as that suggested by the appellant violates many of the cardinal rules of interpretation of insurance contracts. Under Missouri law, and applicable principles generally, it is our duty, where possible, to give every clause of the insurance policy some meaning. Central Surety Insurance Corporation v. New Amsterdam Casualty Co., et al., 359 Mo. 430, 222 S.W.2d 76, 80 (1949). If the policy applied to all vehicles, both owned and non-owned, there would be no reason or purpose in defining such vehicles; such an interpretation would render meaningless this defining clause of the contract. It would, in effect, judicially strike the "non-owned automobile" definition from the policy. The phrase "owned and non-owned" automobiles appearing in the Insuring Agreement would have no significance and would be superfluous for the same reason. Further, such an interpretation, in our opinion, is strained and unreasonable, and requires "the exercise of inventive powers for the purpose of creating an ambiguity where none exists." Wendorff v. Missouri State Life Insurance Co., 318 Mo. 363, 1 S.W.2d 99, 101, 57 A.L.R. 615 (1927). A recognized basic rule applicable to the interpretation of contracts requires that the instrument under consideration be construed as a whole. Giokaris, supra. The interpretation urged by appellant is based on and limited to the disjunctive word "or," and would require us to disregard all other associated parts of the policy.

It would also be contrary to and require the disregard of the judicially recognized and obvious underwriting purpose of such policy provisions, which is to protect the insurer from a situation where the insured could purchase one policy for a described vehicle and be covered by the same policy without qualification while operating any and all other automobiles under his control or available for his use. Lincombe v. State Farm Mutual Automobile Insurance Co., et al., La.App., 166 So. 2d 920, 924; Rodenkirk for Use of Deitenbach v. State Farm Mutual Automobile Insurance Co., 325 Ill.App. 421, 60 N.E.2d 269, 274; and Glisson v. State Farm Mutual Automobile Insurance Co., 246 S.C. 76, 142 S.E.2d 447, 451.

On this issue of alleged ambiguity in the definition of a non-owned automobile, as contained in the policy, we find in favor of the appellee and hold that the policy excludes from coverage a non-owned automobile that was "furnished or available for the regular use * * * of the named insured." For a detailed analysis of several cases involving the interpretation and construction of similar standard automobile liability provisions, see Quesenberry v. Nichols, 208 Va. 667, 159 S.E.2d 636 (1968).

The trial court determined that the Volkswagen vehicle involved in the accident did not come within the policy definition of "non-owned automobiles" because it was "furnished or available for the regular use of the insured." Appellant contends that this finding on a factual issue is error in that it "was not supported by substantial evidence, or alternatively was against the clear weight of the evidence." Brief reference to the pertinent stipulated facts will necessarily be made.

At the time of the accident the insured (Appleby) was an assistant to the pastor of the Ferguson Church of the Nazarene. The church operated a parochial school in conjunction with its other functions. In connection with its operation of the parochial school, the church provided school bus transportation for those children who requested it, on either a monthly fee or donation basis. For this purpose the church owned and maintained two Volkswagen vehicles which were driven by hired chauffeurs over scheduled routes. The vehicle here involved was so used to transport school children and occasionally for other church functions. The church had regulations that the vehicles could not be used for other purposes. Appleby was a licensed chauffeur and as one of his duties of employment drove one of these vehicles, on a temporary or fill-in basis, in the absence of the regular driver. Such substitute driving occurred quite frequently — sometimes two or three days a week. Appleby had never used the vehicle for personal or private purposes, or for any purpose other than stated. On the day involved, and at the time of the accident, he was driving the vehicle over a regular route, returning to the church after completing delivery of the children to their homes from the school session. On that particular route the vehicle ran three times a day, and Appleby had driven it over that route "very, very often" prior to that day.

We have no hesitancy in expressing complete agreement with the trial court that such non-owned vehicle was excluded from coverage under the policy because it was "furnished or available for the regular use of the insured." This apparently is a common provision of standard automobile liability insurance contracts, from which has arisen a substantial amount of litigation, not because of any ambiguity in the provision itself, but because each case necessarily depends upon the facts of the situation, and there is obviously no single or exclusive criteria or test which will conclusively determine the issue.

In Hartford Accident & Indemnity Company v. Hiland et al., 349 F.2d 376 (7 Cir. 1965), a declaratory judgment action involving an exclusionary provision almost identical to that involved herein, the court stated, at page 377:

"It is true that the term `regular use' may be used in the sense of time, for example, steady as opposed to occasional; or in the sense of type of use, usual as against unusual. But the courts have found no great difficulty in reasonably interpreting the term in applying it to differing facts in various cases."

In Voelker v. Travelers Indemnity Company, 260 F.2d 275 (7 Cir. 1958), the plaintiff was a national guardsman on annual active duty when he was involved in an accident while driving a National Guard truck. He brought a declaratory judgment action against the liability insurer of his personal automobile under a policy with an insuring agreement extending coverage "to any other automobile," but with an exclusionary provision similar to that before us. In arriving at the conclusion that the defendant-insurer was free from liability under the exclusion clause, that court stated, at page 278:

"What constitutes `regular use' depends upon the circumstances of the case. Certainly the truck driven by plaintiff at the time of the collision was in the `regular use' of the National Guard. The National Guard was only capable of acting through its members. Some of its members, including plaintiff, were specially trained to drive its trucks and vehicles. They did so on numerous occasions and were subject to do so at any time upon request. The fact that plaintiff had not previously driven this particular truck is immaterial. He was driving it in his line of duty for a period of three days. It seems reasonable to think that the truck was furnished him for his `regular use' while acting in the performance of his duties as a member of the National Guard."

General Leasing Corporation v. Anderson, 197 Kan. 327, 416 P.2d 302, at page 307 (1966), was a case involving the application of a similar exclusionary provision and the court therein, after referring to other decisions, stated:

"It has been generally held in other jurisdictions that a casual and occasional use of another car for which special permission has to be secured each time the car is driven is not to be considered `furnished for regular use' under the exclusionary provision of the `drive other car' clause of an insurance policy. (Citations.)"

Also see: Quesenberry, supra.

In Giokaris, supra, a comparable exclusionary provision was before the Supreme Court of Missouri. While the primary question in that case was whether the insured's grandmother, who was residing only temporarily with the insured, was a "member of the same household," the issue of whether the vehicle was "furnished for regular use" was also present. Because of the circumstances there present, the court found it unnecessary to discuss the import of the exclusionary clause in detail. However, it appears that the court did emphasize infrequency of use, and the necessity of seeking permission each time the vehicle was used, as a basis for concluding that it was not "furnished for regular use."

The case of Farm Bureau Mutual Automobile Insurance Company v. Marr et al., 128 F. Supp. 67 (D.C.N.J.1955), was also a declaratory judgment action to determine liability under an automobile liability policy containing an almost identical exclusionary provision. After reviewing several decisions involving the same question, that court stated, at page 70:

"The signposts that are indicated to this Court from the foregoing are:

1. Was the use of the car in question made available most of the time to the insured?

2. Did the insured make more than mere occasional use of the car?

3. Did the insured need to obtain permission to use the car or had that been granted by blanket authority?

4. Was there a purpose for the use of the car in the permission granted or by the blanket authority and was it being used for such purpose?

5. Was it being used in the area where such car would be expected to be used?"

That court thereupon based its decision upon the application of the stated "signposts" to the facts of the case. While not adopting such "signposts" as the sole, or even the proper test, or inferring that they include all the essential criteria, they obviously refer to several of the major factors which merit consideration.

In considering this question, we emphasize and place major importance upon the following facts: The involved vehicle was owned by the insured's employer, and was furnished and always made available to its employed licensed drivers for a specified use or uses in the business of the employer, and one of those licensed drivers was the named insured. While the driving of such vehicle constituted only one of the duties of employment of the insured, and required only a portion of his time, such driving was a part of those duties. The vehicle was furnished and made available to the named insured under blanket authority whenever the use thereof by him was required in the performance of this aspect of his duties. Such use was not casual, but was frequent, and without exception was always and uniformly used in conformity with the rules and policy prescribed by the employer and in accordance with his duties as an employee. Such use was not merely incidental to but was essential to the performance by the insured of those duties. The vehicle was always available to the named insured for the prescribed purpose whenever its use was required for the performance of those duties. At the time of the accident the use of said vehicle was in the course of Appleby's regular duties of employment and he was driving the vehicle on the prescribed route and for the prescribed purpose. We are satisfied that even though the insured drove this vehicle as a fill-in or substitute driver, on a part-time basis, the vehicle was furnished and made available to him by his employer under broad and blanket authority for his regular use in the course of his employment. Accordingly, we hold that the Volkswagen vehicle involved in this litigation is excluded from the insuring clause of the policy issued to Appleby by Liberty.

Because of the dispositive effect of the foregoing, we find it unnecessary to consider the "private passenger automobile" clause of the insurance contract.

Judgment in favor of the appellee is

Affirmed.