Opinion
No. 4477.
Argued April 3, 1956.
Decided May 31, 1956.
The words used in a policy of insurance are to be given the meaning that a reasonable person in the position of the insured would give to them.
In construing a policy of motor vehicle liability insurance which provided that the "use of other automobiles" coverage shall not apply "to any automobile while used in the business or occupation of the named insured," the words "business or occupation" are not limited in application to the precise type of work in which the insured is regularly or usually engaged but include all acts which are essential to the proper and full performance of the duty owed to the employer in his occupation whether the need for that performance arises regularly or only occasionally.
Hence, where the insured at the time of the accident was driving an army truck in the course of his duties as a civilian employee at an army reservation in compliance with an authorized order of his superior which he had the duty to obey and was receiving his regular pay for so doing, such act was deemed part of his "business or occupation" notwithstanding the fact that he was classified as a general mechanic and drove vehicles on the public highway only occasionally and in the absence of regular truck drivers.
The statutory motor vehicle policy endorsement providing coverage for use of other vehicles without regard to whether the use was in the business or occupation of the named insured afforded coverage in such case within the statutory limits; and the exclusionary provision (RSA 268:26) relating to military duty was held inapplicable.
PETITION, for a declaratory judgment, seeking a determination of the plaintiff's obligation under its automobile liability policy insuring the Buick automobile of the defendants Michael A. Capobianco and Lucina H. Capobianco in connection with tort actions brought against Michael by the other defendant, Edna B. Warren, individually and as administratrix of the estate of Alan E. Warren.
From the Trial Court's findings of fact, it appears that the accident out of which the pending tort actions arose occurred in Concord on August 31, 1954, while the defendant Michael A. Capobianco, employed at the State military reservation by the United States Property and Finance Office in a civilian capacity as a general mechanic, was operating a truck owned by the United States Government which collided with an automobile owned by the defendant Edna B. Warren and operated by her husband Alan E. Warren. "On the day of the accident there had been a power failure at the Concord Hospital because of a hurricane, and as all truck drivers were at summer camp with the National Guard, Mr. Capobianco was directed by his superior officer, Captain Murphy, to transport a generator to the hospital. He was on the way to the hospital when the accident occurred."
In its original petition filed February 3, 1955, the plaintiff conceded that coverage within the statutory amounts was provided by the "New Hampshire Statutory Motor Vehicle Liability Policy Endorsement" attached to the policy. It alleged, however, that no coverage was afforded beyond those limits by insuring agreement V of the policy itself because the truck, at the time of the accident, was "furnished for regular use to the named insured" and was being used by him in his "business or occupation," under which circumstances subsections (1) and (2) of paragraph (b), of insuring agreement V of the policy provide that that agreement, affording coverage in the use of other automobiles, shall not apply. On April 28, 1955, the plaintiff moved to amend its petition to deny coverage under the endorsement as well as under the policy because "the said truck . . . was owned by or under lease to the United States Government" and because Capobianco was "a member of the National Guard . . . engaged in military duty pursuant to orders from proper authority." RSA 268:26.
On the basis of the facts found by it, the Court below concluded that at the time of the accident the truck had not been furnished to Capobianco for his regular use and was not being used by him in his business or occupation within the meaning of insuring agreement V, paragraph (b), subsections (1) and (2): that the coverage afforded by the policy for use of other automobiles applied in this case; and that it was unnecessary to consider or rule upon the question of whether coverage was provided by the statutory endorsement.
The plaintiff's exceptions to findings and rulings, to the failure to make requested findings and rulings and to the decree were reserved and transferred by Wescott, J. Other facts appear in the opinion.
George P. Cofran and Paul A. Rinden (Mr. Rinden orally), for the plaintiff.
Sulloway, Jones, Hollis Godfrey and Irving H. Soden (Mr. Soden orally), for the defendant Warren.
Upton, Sanders Upton for the defendants Capobianco, furnished no brief.
The principal claim of the plaintiff involves subsection (b) (2) of insuring agreement V of the policy in question which provides that "use of other automobiles" coverage shall not apply "to any automobile while used in the business or occupation of the named insured." By its exceptions, the plaintiff raises the issue of whether the Trial Court correctly interpreted this policy provision in reaching its conclusion that Capobianco, the named insured in this case, was not using the government truck in his business or occupation at the time of the accident.
The basis for the Trial Court's conclusion on this question is stated in its findings and rulings as follows: "The operation by insured of the government truck in an emergency to furnish power to the Concord Hospital when no regular truck driver was available . . . was not work in which the insured was regularly or usually engaged." From this language it is apparent that the Court interpreted the policy as being applicable only as to "work in which the insured was regularly or usually engaged." With this interpretation we cannot agree.
In Bowen v. Casualty Co., 99 N.H. 107, in which this same policy provision was considered, the insured was the self-employed proprietor of an ice delivery business. At the time of the accident in which he was involved, he and his brother, who owned and operated a gravel truck, had temporarily exchanged jobs because of the insured's physical inability to make ice deliveries. The issue presented in that case was whether ice delivery or gravel delivery was the "business or occupation" of the insured at the time of the accident. As applicable to a determination of that question, the following statement was made in the opinion: "The words `business' and `occupation' . . . are each commonly used in reference to the work in which one is regularly or usually engaged." This language was not intended as a conclusion that as to work performed by an insured in connection with his employment, the words "business or occupation," as used in this policy provision, should apply only to the precise type of work in which he was regularly or usually engaged. See Merchants c. Cas. Co. v. Tuttle, 98 N.H. 349, in which the truck operated by the insured was "sometimes . . . used `a couple of times in one day or it might be a couple of months before they used it again'" and the same policy provision was held to be applicable.
The policy is to be given the meaning which a reasonable person in the position of the insured would give to it. Farm Bureau Ins. Co. v. Manson, 94 N.H. 389, 392. The duties of an occupation are not ordinarily thought of as being limited to the performance of those acts regularly and usually required by the work but are generally understood to include those additional acts the need for the performance of which arises only infrequently but which are nonetheless a part of the occupation. Acts which are essential to the proper and full performance of the duty owed to the employer are a part of the occupation whether the need for their performance arises regularly or only occasionally.
Capobianco's occupation was that of a general mechanic at the concentration site in the State military reservation. This was the classification in which he was employed, the activity upon which he spent the major portion of his time and out of which he made his living. Bowen v. Casualty Co., 99 N.H. 107, 115. His regular duties, as stated in an office memorandum from the U.S. Property and Disbursing Officer for New Hampshire, made him responsible for "the receipt of material into the concentration site, preparation for storage, storage, in-storage maintenance, operation of battery maintenance room and maintenance records connected with equipment assigned to the concentration site." At this site about five hundred military vehicles of various kinds were normally stored and maintained, subject to requisition for use off the reservation by National Guard units throughout the state. All of these vehicles were in Capobianco's charge for maintenance and storage while on the reservation. As an incidental duty not reduced to: writing, Capobianco drove the vehicles on the reservation for testing and repair purposes. When vehicles were to be driven off the reservation for any purpose, they were regularly operated by truck drivers employed at the reservation for that purpose. Capobianco was not classified as a truck driver and it was not a part of his regular duty to drive these vehicles on the public highway.
In addition to his responsibilities in connection with the storage and maintenance of equipment, however, the Trial Court found that it was "Capobianco's duty in his work to obey the orders of his superior, Captain Murphy." As the Captain testified, "being his superior, he would carry out an order that I gave him . . . He was expected to comply with my order." It was "part of his duty." The Court also found that Capobianco "had a right to drive off the reservation when so ordered by his superiors" and the testimony indicates that he had in fact done so about once a month, during the three years he had been employed at the reservation, the occasion for his doing so being, as he testified, "when there is a shortage of drivers."
On the day of the accident, Capobianco was not engaged in his regular work at the concentration site because of the storm but he was on duty and being paid. All the truck drivers employed at the reservation were at summer camp with the National Guard. When the call was received from the hospital, Captain Murphy, as the Trial Court found he "had a right to" do, ordered "Capobianco to take the generator to the . . . hospital." The emergency nature of the mission is without significance. Emergencies requiring the operation of trucks off the reservation were "infrequent" according to Captain Murphy. Thus, even a classified truck driver operating the truck on the day of the accident would have been performing work other than that in which he was regularly or usually engaged. The important fact is that "at the time of the accident, Capobianco was driving the army truck . . . in compliance with an order of his superior," an authorized order which he had a duty to obey, and was receiving his regular pay for so doing. Under these circumstances no reasonable person in Capobianco's position would consider that such use of the truck was not a part of his occupation. The Trial Court's conclusion of law that he was using it "in another line of endeavor" and not in his occupation cannot be supported.
Attached to the policy was a "New Hampshire Statutory Motor Vehicle Liability Policy Endorsement" by the terms of which coverage for use of other vehicles was provided within the statutory limits, without regard to whether the use was in the business or occupation of the insured. While the plaintiff's responsibilities under this endorsement were not determined by the. Trial Court, the necessary facts are before us and justice and convenience require that this phase of the case be disposed of at this time. Farm Bureau Ins. Co. v. Manson, 94 N.H. 389, 391.
The plaintiff's contention that no coverage is afforded by this endorsement because of the provisions of RSA 268:26 is without merit. As indicated in Milwaukee Insurance Co. v. Morrill, 100 N.H. 239, the fact that the truck which Capobianco was operating was owned by the federal government does not make inapplicable the coverage afforded by the endorsement. While Capobianco was a member of the National Guard it conclusively appears from the evidence that he was not "engaged in military duty pursuant to orders from proper authority" at the time of the accident and the statute does not operate to relieve the plaintiff from its obligations under the endorsement.
A judgment should be entered that the plaintiff is required to furnish coverage under the endorsement up to the required minimum statutory limits, but is under no obligation to do so beyond those limits because of the provisions of agreement V (b) (2) of the policy.
Remanded.
KENISON, C. J., dissented; the others concurred.