Safeco Insurance of America v. Hartford Fire Insurance

DRAPER, P. J. Declaratory judgment determined that the policies of plaintiff and defendant both afforded primary coverage and thus should share pro-rata the bodily injury liability arising from an automobile collision. Defendant-cross-complainant appeals, urging that plaintiff’s coverage is primary, and its own but excess.

Eureka Valley Cooperative is an unincorporated association. It is a water and soil conservation group, whose members are owners of lands in Inyo County. On February 12, 1961, members of the group met in that county with Mr. Kelsey, who was not a member but was acting as manager. In connection with activities of the cooperative, Mr. Roberts, a member, was driving Kelsey to Bishop in Kelsey’s car. They collided with an automobile occupied by Mr. and Mrs. Lunde, who sued Roberts, Kelsey and the cooperative for damages. Kelsey’s car was uninsured. Roberts’ own ear was insured by plaintiff, and the policy also covered Roberts while driving an automobile he did not own. Defendant had insured Eureka Valley Cooperative against liability for bodily injuries inflicted in operation of automobiles.

Plaintiff Safeco concedes that its policy covers this accident. Since the car driven by its insured carried no insurance, the Safeco liability is primary.

Hartford concedes that its policy covers the cooperative ‘ ‘ as the employer of Roberts, ’ ’ but contends that this coverage is only secondary to that of Safeco. The Lundes ’ claims have been settled within the limits of the Safeco policy, and thus the only parties here interested are the two insurers.

We do not have the first, or “declaration,” page of the Hartford policy. Thus we do not know whether it refers to any automobile of the cooperative, nor does the testimony [79]show whether that body owns any automobile. The testimony does establish that the cooperative is the named insured.

The remainder of the Hartford policy is in the record. Paragraph I of the “insuring agreements” extends coverage to liability for “bodily injury” . . . arising out of the ownership, maintenance or use of any automobile.” Hartford, however, points to paragraph III, which defines “insured” to include the named insured and “any person while using an owned automobile or a hired automobile . . . and any executive officer of the named insured with respect to the use of a non-owned automobile in the business of the named insured.” Hartford argues that this clause limits the “any automobile” provision of paragraph I. Since the Kelsey automobile was neither owned nor hired by the cooperative, and because the driver Roberts was not an “executive officer,” Hartford argues that the restrictive language bars coverage here.