Maryland American General Insurance Co. v. Ramsay

OPINION BISSETT, Justice. This is a summary judgment case. Rotha Ramsay, the widow of Scott Ramsay, brought suit against Maryland American General Insurance Company to recover death benefits under a policy of insurance which named her husband as the insured. Plaintiff and defendant each filed a motion for summary judgment. After a hearing [139] on the motions, the trial court granted plaintiff’s motion. Defendant’s motion was denied. Judgment was rendered for plaintiff. Maryland American General Insurance Company, the insurer, has appealed. The parties will henceforth be referred to as “plaintiff” and “defendant”, as they appeared in the trial court. The facts are undisputed. On June 26, 1973, Scott Ramsay (Ramsay), while driving a utility pickup truck which was owned by the United States Navy, collided with an automobile. He sustained serious injury in the accident and died the same day. The collision occurred upon a public highway in Bee County, Texas. Ramsay, at all times pertinent to this appeal, was a civil service employee of the United States at Chase Field Naval Air Station, in Bee County, Texas. He was classified as an air-conditioning mechanic. On the day of the accident made the basis of this suit, he, along with Rosendo Gonzales, a co-worker, left Chase Field in the pickup truck (pickup) and proceeded to Capehart, a government-owned housing project for Navy personnel stationed at Chase Field, where they installed a compressor on an air-conditioning unit in one of the houses. The housing project is located in the City of Beeville, Texas, some distance from Chase Field. They were returning to Chase Field to pick up another such compressor, which was also to be installed on an air-conditioning unit in Capehart, when the accident occurred. The pickup was used solely for transporting crew, tools, equipment and supplies (pertaining to air-conditioning and heating installation, repairs and maintenance) from Chase Field to Capehart, and for work at Capehart. It was a one-half ton vehicle, and had a utility bed with three or four cabinets on each side which contained parts, tools, equipment and supplies used to service and work on refrigeration, air-conditioning and heating units. It was licensed by the United States Navy. The main policy in this ease is denominated “Family Combination Automobile Policy”. It contained the usual coverages relating to damages arising out of the ownership and use of the automobiles specified therein, a 1967 Ford Thunderbird and a 1968 Ford Pickup. The policy provided for $50.00 deductible; liability was limited to $10,000 for each person and $20,000 for each occurrence for bodily injury, $1,000 for each person for medical, and $10,000 for each person and $20,000 for each accident for bodily injury under the uninsured motorist provision. The premium for the main policy and the five' endorsements thereto was $344.00 for the period commencing November 10,1972 and ending November 10,1973. The policy was in force on the day of the accident. Attached to the policy was an endorsement (157P), entitled “Automobile Death Indemnity, Total Disability and Specific Disability Benefits”, which, among other provisions, insured Ramsay for $10,000 in the event he was killed in an accident and his death occurred “directly and independently of all other causes from bodily injury caused by accident and sustained by the insured while in or upon, or while entering into or alighting from, or through being struck by, an automobile . . . ” The premium for the indemnity coverage to Ramsay was $4.00. However, the endorsement also contained the following exclusion, which reads as follows: “This insurance does not apply: (a) to bodily injury or death sustained in the course of his occupation by any person while engaged (1) in duties incident to the operation, loading or unloading of, or as an assistant on, a public or livery conveyance or commercial automobile . . . ” Unquestionably, Ramsay died “in the course of his occupation”. The sole question presented by this appeal is whether or not a United States Navy-owned pickup truck is a “commercial automobile” within the meaning of the quoted exclusion. [140] Defendant, in its first point of error, contends that the trial court erred in granting plaintiff’s motion and in denying defendant’s motion because, as a matter of law, plaintiff’s husband was, while in the course of his occupation at the time of his death, driving a commercial automobile, and, therefore, was not covered by the terms of the policy since his activities at the time of his death were specifically excluded from coverage. Plaintiff’s position is that Ramsay was not engaged in duties incident to the operation of a “commercial vehicle” at the time he was killed in the accident. She argues: the pickup, a “United States Navy-owned, federally-licensed vehicle, driven by a Navy civilian employee with a federal driver’s license, was not a ‘commercial vehicle’; it was a ‘government vehicle’ or ‘military vehicle’, and the policy made the basis of this suit did not exclude government or military vehicles”. Defendant waived its second point of error during oral argument. Consequently, we do not consider that point. The purpose of the main policy was to protect the insured from financial loss and liability in the use of the Ford Thunderbird and the Ford Pickup. The purpose of endorsement 157P to the main policy was to provide indemnity for bodily injury or death of Ramsay resulting from accidental injury sustained in an automobile accident. An “automobile” is defined in the endorsement as “a land motor vehicle, trailer, or semi-trailer not operated on rails or crawler-treads”. The term “commercial automobile” was not defined in either the main policy or in endorsement 157P thereto. In connection with policies of insurance, the courts of this State which have considered the question have consistently held that the term “automobile” is “a generic term which includes the motor vehicle commonly known as a ‘truck’ ”. Noland v. Allstate Insurance Company, 459 S.W.2d 702 (Tex.Civ.App.—Houston (1st Dist.) 1970, no writ); Combined American Insurance Company v. Ganzer, 350 S.W.2d 211 (Tex.Civ.App.—Waco 1961, no writ); Nichols v. State, 156 Tex.Cr.R. 364, 242 S.W.2d 396 (1951). No reason exists why a pickup truck should be considered differently. The term “automobile” also includes a motor vehicle commonly known as a “pickup truck”. Neither plaintiff nor defendant have cited a Texas case that bears directly on the question presented by this appeal. We have not found such a case. However, Ferguson v. State Farm Mutual Automobile Insurance Company, 281 Ala. 295, 202 So.2d 81 (1967), is analogous to the case at bar. In that ease, Ferguson, while operating a caterpillar road machine in the course of his employment as an operator of such machine for Calhoun County, Alabama, was killed when the machine turned over on top of him. Ferguson was insured under a policy which contained the exact exclusion involved in this appeal. The Court said: “ . . . We think clearly under the facts here that the county-owned caterpillar road machine being operated by the decedent in the course of his employment was a ‘commercial automobile’ within the clear meaning of the exclusion . . ” The Tex.Ins.Code Ann. (1963) does not define the term “commercial automobile”. The term “Commercial motor vehicle” is, however, defined in Tex.Rev.Civ.Stat.Ann. art. 6701d-ll § 1, as: “Any motor vehicle other than a motorcycle, designed or used for the transportation of property, including every vehicle used for delivery purposes”. That definition, while not controlling, is persuasive. The term “commercial automobile” is not an ambiguous term. It has a meaning which is readily ascertainable in the plain, ordinary, and popular sense of the words themselves. Hardee v. Southern Farm Bureau Casualty Ins. Co., 127 So.2d 220 (La.App.1961); Peterick v. Mutual of Enumclaw Ins. Co., 9 Wash.App. 721, 514 P.2d 188 (1973); Farmers Insurance Ex [141] change v. Loesche, 17 Ariz.App. 421, 498 P.2d 495 (1972); Molzahn v. State Farm Mutual Automobile Ins. Co., 308 F.Supp. 1144 (D.C.Kan.1968); 15A C.J.S. Commercial, pp. 1-3. In the instant case, Ramsay’s employer was not engaged in business or commerce. That fact, however, is immaterial to the question to be resolved in this appeal. The policy of insurance was a contract between defendant, the insurer, and Ramsay, the insured. It did not concern Ramsay’s employer, and the exclusion can only apply to Ramsay and his activities. Ramsay was engaged in a commercial activity for profit. It was his business to install, repair and service refrigeration, air-conditioning and heating equipment for the Navy. He was paid for his services. His occupation was commercial in nature, scope and fact. The work that he was doing was not for pleasure purposes, but was for business purposes. His services, if performed for the Navy in the capacity of a sole entrepreneur, or as an employee of a private business concern, undoubtedly would be considered commercial. Ramsay, on the date in question, was not engaged in the service of the military; instead, he was a civilian who was hired by the Civil Service Commission, and was performing services for the military (Navy). A pickup truck, by its. very nature, is a functioning tool of commerce. It is designed primarily for the transportation and delivery of items of personal property. The fact that the pickup involved herein was also used to house and store tools, equipment and supplies and to serve as a workshop does not detract from its being in use (and used) as a commercial automobile. The pickup was not a military vehicle in the sense that it was designed or being used for military purposes in the ordinary meaning of the word “military”. Ownership of the pickup is unimportant in this case. In summary, the pickup in which Ramsay was riding at the time of his death was by intention, use, and construction, a commercial automobile, despite the fact that it was a government-owned vehicle in use by the military. This case is strikingly similar to Ferguson v. State Farm Mutual Automobile Insurance Company, supra. There, the vehicle (a road grading machine) was owned by Calhoun County, a political subdivision of the State of Alabama. The County was not engaged in business or in any type of a commercial enterprise. The same is true of this case. The pickup was owned by the Navy, a department of the federal government. The Navy was not engaged in business or occupied with commerce. In each instance, the respective employees were engaged in business in that each was performing services for profit; each was using a vehicle that enabled him to do work for which he was paid; and each vehicle was commercial in nature, design and use. Moreover, the exclusionary provision in each policy related solely to the employee and an accident that occurred during the course of his occupation while he was engaged in duties (among others) incident to his occupation of a commercial automobile. It did not relate to the employer or whether or not such employer (who owned the automobile) was engaged in business for profit at the time in question. We hold that the pickup in question was a “commercial automobile” within the clear meaning of the exclusion. Since Ramsay sustained death in the course of his occupation while operating a commercial automobile, liability under the death indemnity provision is excluded by the exclusionary clause contained in endorsement 157P to the policy. The trial court erred in granting plaintiff’s motion for summary judgment and in denying defendant’s motion therefor. Defendant’s first point is sustained. The judgment of the trial court is reversed and judgment is here rendered that plaintiff take nothing by her suit against defendant. Reversed and rendered.