Truck Insurance Exchange v. Transamerica Insurance

Opinion

WHELAN, Acting P. J .

Truck Insurance Exchange (Exchange), a reciprocal insurance exchange, and Anthony E. Sampo, plaintiffs, have appealed from a judgment adverse to their contentions and holding that defendant Transamerica Insurance Company (Transamerica), a corporation, is liable only for excess insurance on a policy written in favor of

[789]

V. R. Dennis Construction Company (Dennis), which with its employee Barney Whitfield,

1

is also a defendant.

Sampo was the owner of a dump truck which was being uséd by Dennis on June 20, 1968, under an agreement by which Dennis hired the truck for a period which included that date. Whitfield, an employee of Dennis, was driving the truck on that date in the course of his employment.

A policy of automobile liability insurance written by Exchange in favor of Sampo covering the truck was in force on that date.

Transamerica had in force on that date a policy of insurance in favor of Dennis which afforded coverage for hired automobiles under comprehensive automobile liability provisions, and hired mobile equipment under comprehensive general liability provisions.

The comprehensive general liability sections of the Transamerica policy contained this provision: “Each of the following is an insured under this insurance to the extent set forth below:

“(5) with respect to the operation, for the purpose of locomotion upon a public highway, of mobile equipment registered under any motor vehicle registration law,

“(i) an employee of the named insured while operating any such equipment in the course of his employment , . . .”

The Transamerica policy in its comprehensive automobile liability sections provided coverage as to any sums for which the insured might become legally obligated to pay arising out of the use of any automobile.

The comprehensive automobile liability sections contained the following clause: “With respect to a hired automobile or a non-owned automobile, this insurance shall be excess insurance over any other valid and collectible insurance available to the insured.”