Andrew L. Roland et al., Appellants, v. Allstate Insurance Company, Appellee, 370 F.2d 289 (5th Cir. 1967)

On July 4, 1963, a car carrying appellant Roland and his family was involved in an accident with two other cars near Canyon, Texas. One of the other cars was owned by John H. Murray and was being driven at the time of the accident by Richard G. Jones, a member of the United States Air Force. Sitting in the front seat with Jones was Charlotte Wells (who later became Mrs. Richard Jones). Murray had given Charlotte permission to use the car for the summer.

As a result of the collision, appellant Roland and his minor daughter, Wanda, suffered injuries, and his wife, Bobbie, was fatally injured. Roland brought suit in a Texas court against Jones, Charlotte, and the driver of the third vehicle. Jones requested Allstate Insurance Company, Murray's liability insurer, to represent him in the state court action.

Subsequently, Allstate brought this declaratory judgment action under the Declaratory Judgment Act¹  and Rule 57, Fed. R. Civ. P., 28 U.S.C., for the purpose of establishing that Murray's policy obligated it in no way with regard to the accident in question. Allstate's position was based upon two provisions of the policy — a "Military Personnel Restrictive Endorsement" and the policy omnibus clause.

The district court granted a motion by Allstate for summary judgment, concluding that the military endorsement "defeats any liability of the plaintiff to the defendants * * *."²  For the reasons discussed below, we REVERSE.

Allstate contends that appellant Roland has no standing to appeal from the ruling of the district court that Charlotte Wells Jones was not covered by Murray's insurance policy with respect to the accident here involved. Such a contention deserves little more than passing mention. The record shows that on December 4, 1963, Roland's state suit resulted in a finding that Richard Jones and Charlotte Wells were jointly and severally liable to Roland in the amount of $50,000. It is settled law that an injured party who acquires a judgment against a tort-feasor may sue the tort-feasor's insurer directly to enforce the judgment up to the limits of the policy. See Seguros Tepeyac, S.A. v. Bostrom, 5th Cir. 1965, 347 F.2d 168, 172; Womack v. Allstate Ins. Co., 1956, 156 Tex. 467, 296 S.W.2d 233; Klein v. Century Lloyds, 1955, 154 Tex. 160, 275 S.W.2d 95. Surely, if an injured party can seek enforcement of a judgment directly against the insurer, he can appeal from a verdict holding the insurer free from liability in a declaratory judgment action brought by the insurer.

The Military Personnel Restrictive Endorsement contained in Murray's insurance policy reads:³ 

1. In consideration of the premium at which this policy is written, it is agreed that no insurance is afforded under this policy to any member of the Armed Forces of the United States, other than the individual named below and the named insured.

It is undisputed that Richard Jones was driving Murray's car at the time of the accident and that Jones was a member of the armed forces. The district court felt that these facts compelled a finding as a matter of law that no coverage was available under the policy. With this conclusion we cannot agree. It is clear, and admitted by appellant, that Richard Jones is not afforded protection under the policy. Appellant contends, however, that the military endorsement does not affect any possible coverage due Charlotte under the policy. The plain language of the provision supports this argument. It states that no member of the military, other than the named insured, is covered. It does not say that, when the car is being driven by a member of the armed forces other than the named insured, coverage is unavailable to all persons, regardless of whether they might be covered under other provisions of the policy.

Furthermore, Allstate has tendered no judicial authority which contradicts our conclusion that the language of the endorsement clearly and unambiguously supports appellants' contention. The district court apparently based its decision upon Western Alliance Ins. Co. v. Albarez, 380 S.W.2d 710 (Tex.Civ.App. — Austin 1964, writ ref'd n. r. e.). The exclusionary clause in the insurance policy there involved, however, differed significantly from the military endorsement in the instant case. The policy in Albarez provided:

[T]he insurance afforded by this policy shall not apply with respect to any claim arising from accidents which occur while any automobile is being operated by Miles Collins.

380 S.W.2d at 712 (emphasis added). The plain meaning of the words of the two exclusionary provisions are quite different. In the instant case only the excluded persons — i. e., servicemen other than the named insured — are without coverage. In Albarez, the entire coverage of the policy is avoided if the vehicle is operated by a specifically named individual.

Appellees argue that to give the words of the military endorsement their plain meaning would "circumvent the plain intention of the parties." Yet, it is left purely to conjecture from what source we are to glean this allegedly "plain intention" of the parties which would contradict the clear wording of the endorsement.⁴  We are not inclined to rewrite a contract of adhesion where the party responsible for its drafting pleads that it imperfectly expressed the parties' true intent.

Even if the proper interpretation of the endorsement were not clear and could be said to contain ambiguity, we would still be inclined to reversal. As this Court has recently said:

We are also mindful of the desirability, as a matter of public policy, to protect the injured party and to construe the policy in such a manner so that those who are injured are not abandoned without compensation. * * * " [I]t is settled doctrine that an insurance contract is to be liberally construed for the protection, not only of the named insured and those within its omnibus clause, but also the innocent plaintiff who was injured by the negligent use of the insured automobile."

Float-Away Door Co. v. Continental Casualty Co., 5th Cir., December 1, 1966, 372 F.2d 701.

What we have said above does not dispose of this litigation. It still must be determined if Charlotte was covered by the omnibus clause of the policy. This determination, however, is a task for the district court upon remand. Whether Charlotte was an "insured" under the policy is a question of Texas law. An interpretation of that law and its application in this case may not be ascertained in the abstract, but only in the context of a precise factual situation. The record before this Court does not even contain the factual affidavits filed in connection with the motion for summary judgment. Thus, any discussion by this Court as to the local law defining and applying such critical terms as "use," "actual use," and "permission," as well as any attempt to determine the place in Texas law for concepts of "implied permission," and "major or minor deviation," would be ill-advised. Indeed, such an investigation of the local law in the present posture and factual development of this case would amount to an advisory opinion, the rendition of which, of course, is beyond the scope of our proper functions. Therefore we reverse and remand to the district court for further proceedings not inconsistent with this opinion.