Rullman v. State Farm Mutual Automobile Insurance

[608]

Opinion

FRIEDMAN, J.

A widow sues for the death indemnity provided by her husband’s automobile insurance policy. The trial court sustained her claim and the insurer appeals.

Four clauses of the policy are significant in determining coverage. The death indemnity clause provided for payment “ ... in event of the death of each insured which shall result directly and independently of all other causes from bodily injury caused by accident and sustained by the insured while occupying or through being struck by an automobile, provided the death shall occur within 90 days from the date of such accident.”

Another section of the policy set forth a series of definitions, including: “Occupying—means in or upon or entering into or alighting from.”

The policy contained another significant definition: “Automobile—means a land motor vehicle, trailer, or semitrailer not operated on rails or crawler-treads, but does not mean: (1) a farm type tractor or other equipment designed for use principally off public roads, except while actually upon public roads, or (2) a land motor vehicle or trailer while located for use as a residence or premises and not as a vehicle.”

Finally, the policy contained the following exclusion applicable to the death indemnity coverage: “Insuring Agreement IV does not apply: (a) to bodily injury 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, commercial automobile, ambulance, fire truck, police car or other emergency vehicle, or (2) in duties incident to the repair or servicing of automobiles;”

The husband was killed while working for the United States Bureau of Reclamation as a member of a crew operating a mobile earth drill. The drilling machinery and tower, the latter a skeletal steel structure, were mounted in semipermanent fashion upon the bed of a flatbed International truck. The drill engine occupied the front portion of the truck bed; a cable drum and tower base occupied the rear. When not in operating position, the 3 3-foot long tower extended horizontally toward the front of the truck, its upper portion extending forward over the cab roof and resting upon a steel frame welded, bolted or riveted to the front bumper. The tower would pivot upward in response to controls. The controls consisted of a set of levers located at the left rear of the truck bed and extending out to its edge. Because it was used in terrain away from the highway, the truck was equipped with special flotation tires.