Allstate Insurance v. Roberts

WOOD (Fred B.), J.

Plaintiff brought this action against defendants Raymond and Catherine Roberts to determine its obligations, if any, under a policy of public liability insurance it had issued to Raymond; i.e., with reference particularly to coverage of Raymond’s liability toward persons injured in an accident which occurred while he was driving his wife Catherine’s Ford instead of his own car, a Mercury specified in the policy as the “owned automobile.”

By the terms of the policy plaintiff agreed to pay for

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damages which Raymond should be legally obligated to pay because of injury to person or property “arising out of the ownership, maintenance or use, including loading and unloading, of the owned automobile, a substitute automobile or a non-owned automobile,” and to defend any suit for such damages and to pay costs in any such suit and certain medical expenses.

The policy defined “substitute automobile” as meaning “an automobile not owned by the named insured but temporarily used as the substitute for the owned automobile while withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.”

The trial court found that Catherine’s Ford was at the time of the accident being used by Raymond as a “substitute automobile,” as defined in the policy.

Plaintiff appeals from the judgment in Raymond’s favor and poses two questions: (1) Was the Mercury withdrawn from its “normal use” ? (2) Was the Mercury withdrawn from normal use “because of its breakdown”?

Raymond used the Mercury in going to and from his place of work in Oakland and elsewhere in the vicinity. Catherine did not use it at any time after she acquired the Ford in early November, 1953.

For some time prior to the accident (March 8, 1954) the Mercury was not running properly. The brakes were repaired in January, 1954, at a cost of $84. A new overdrive was installed in February at a charge of $93. And still the car did not function well. Raymond thought the trouble might be with the new overdrive. He took the Mercury back to the repair place for a check-up and the report was that the trouble was with something other than the overdrive. When driven slowly (20 to 30 miles per hour) it would seem to be all right but at a higher speed, when trying to pass a car, the motor would cut out. He considered that a hazard and felt that he should not have driven it to the extent that he did.