Dairyland Insurance v. Esterling

290 N.W.2d 209, 205 Neb. 750, 1980 Neb. LEXIS 784
CourtNebraska Supreme Court
DecidedMarch 18, 1980
Docket42669
StatusPublished
Cited by15 cases

This text of 290 N.W.2d 209 (Dairyland Insurance v. Esterling) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dairyland Insurance v. Esterling, 290 N.W.2d 209, 205 Neb. 750, 1980 Neb. LEXIS 784 (Neb. 1980).

Opinions

Brodkey, J.

Plaintiff below, Dairyland Insurance Company, has filed an appeal to this court, seeking to reverse an order of the District Court for Holt County which sustained a motion for summary judgment filed by the defendant, Karla Denay Hearon, by and through her father, William Hearon, and by William Hearon on his own behalf. In its order, entered on January 3, 1979, the trial court ordered, adjudged, and decreed that the defendants’ motion for summary judgment be granted and that Dairyland Insurance Com[751]*751pany (Dairyland) be required to defend the defendant, Eileen Esterling, and to provide coverage to said defendant in a pending action against her. In its appeal to this court, Dairyland assigns as error the failure of the trial court to grant judgment in its favor on defendants’ motion for summary judgment, and also in allowing and granting attorney’s fees and costs to Eileen Esterling. We reverse and remand.

The action in which the motion for summary judgment was filed was a declaratory judgment action brought by Dairyland to determine the rights of the various parties to an action for damages under a “Family Combination Automobile Policy” issued by Dairyland to Robert Esterling, husband of Eileen Esterling, on November 11, 1975. That policy provided, in part, that Dairyland would “pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of * * * bodily injury, sickness or disease, including death resulting therefrom, * * * sustained by any person; [and also for any property damage] arising out of the ownership, maintenance or use of the owned automobile or any nonowned automobile, and the company shall defend any suit alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; but the company may make such investigation and settlement of any claim or suit as it deems expedient.”

Dairyland attached to its petition for declaratory judgment, as an exhibit, the petition in a case filed in the District Court for Holt County entitled Karla Denay Hearon, by and through her Father and Next Friend, William Hearon, Plaintiff v. Eileen Ester-ling, Defendant, Case No. 17133, which petition sets out and summarizes the salient facts giving rise to this litigation. It appears that on December 4, 1975, the mother of Karla Denay Hearon left her minor [752]*752daughter in the care, custody, and control of Eileen Esterling, the wife of the named insured, engaging her to babysit with Karla for a monetary consideration. It further appears that Eileen Esterling then took their pickup truck, the insured vehicle, and drove from O’Neill, Nebraska, to Neligh, Nebraska, taking with her her sister, her 4-year-old son Bradley Esterling, and Karla Hearon. Upon arriving in Neligh, Eileen Esterling and her sister got out of the parked pickup truck, the insured vehicle, leaving Bradley and Karla by themselves in the pickup. The petition alleges that Bradley “did take a cigarette lighter and set the plaintiff’s coat on fire,” resulting in injuries to the plaintiff. The source of the cigarette lighter is neither alleged in the petition nor shown in the record. Karla sustained severe injuries as a result of the fire. The grounds of negligence alleged against the defendant, Eileen Ester-ling, were that she failed to properly supervise the plaintiff, failed to protect the plaintiff from the acts of her 4-year-old son, and failed to provide safe premises for the plaintiff. Dairyland then filed its declaratory judgment action, asking the court to declare that the policy provision referred to above provided no coverage for this incident.

The principal issue presented in this appeal is whether or not coverage exists under the policy in question, particularly under the policy provisions quoted above. As a general rule, an insurance policy should be considered as any other contract, and should be given effect according to the ordinary sense of the terms used; and if those terms are clear, they will be applied according to their plain and ordinary meaning. Preferred Risk Mut. Ins. Co. v. Continental Ins. Co., 172 Neb. 179, 109 N. W. 2d 126 (1961). However, it is also a well-established rule that an insurance contract will be interpreted in accordance with the reasonable expectations of the insured at the time of the contract, and in case of [753]*753doubt, the policy will be liberally construed in favor of the insured. Neal v. St. Paul Fire & Marine Ins. Co., 197 Neb. 718, 250 N. W. 2d 648 (1977).

The phrase “arising out of the ownership, maintenance, or use of the owned automobile” has frequently been examined and interpreted by the courts to determine whether insurance coverage exists. In an annotation entitled “Automobile liability insurance: what are accidents or injuries ‘arising out of the ownership, maintenance, or use’ of insured vehicle,” 89 A. L. R. 2d 150, it is stated: “A frequent question confronting the courts in determining whether a particular injury or accident is within the coverage provided by the ‘ownership, maintenance or use’ clause of an automobile liability insurance policy is the one of causal connection or relationship of the accident or injury to the ownership, maintenance, or use of a vehicle. All the cases agree that a causal relation or connection must exist between an accident or injury and the ownership, maintenance, or use of a vehicle in order for the accident or injury to come within the meaning of the clause ‘arising out of the ownership, maintenance or use’ of a vehicle, and where such causal connection or relation is absent coverage will be denied. The difficulty therefore relates mainly to the determination whether or not there was under the facts of the particular case the required causal relationship.” See, also, 6B Appleman Insurance Law and Practice, §§ 4311 to 4330 (Buckley Ed., 1979).

One of the leading and frequently quoted cases dealing with this problem is National Union Fire Ins. Co. v. Bruecks, 179 Neb. 642, 139 N. W. 2d 821 (1966), where we held that the accidental discharge of a loaded gun in an automobile being used to transport a minor home after a hunting trip was not an accident within the contemplation of the term “arising out of the use” of an automobile, under the facts of that case. In Bruecks we stated: “The policy is [754]*754intended to cover any injury caused by an accident arising out of the use of an automobile and a reasonably liberal construction should be in order if we are to effectuate the purpose of the contract. * * *

“The words ‘arising out of the use’ are very broad, general, and comprehensive terms, and are ordinarily understood to mean originating from, growing out of, or flowing from.”

In that case we also stated: “It would seem that the obligation to defend a suit for an insured should be determined on the basis of whether the petition filed against him attempts to allege a liability within the terms of the policy. In the tort action, which is the basis for this declaratory judgment action, there is no allegation set out in the petition which would indicate that the action was brought as one arising out of the use of a motor vehicle. * * * [T]he allegations of negligence * * * may be summarized as failing to unload the gun previous to entering the automobile and in attempting to unload the gun in a moving automobile. These allegations in no way predicate recovery on the use of the automobile as such.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Taurus Holdings v. US Fidelity
913 So. 2d 528 (Supreme Court of Florida, 2005)
Bisgard v. Johnson
525 N.W.2d 225 (Nebraska Court of Appeals, 1994)
Nelson v. Becton
929 F.2d 1287 (Eighth Circuit, 1991)
Willard v. Kelley
1990 OK 127 (Supreme Court of Oklahoma, 1990)
Wagenman v. State Farm Insurance
726 F. Supp. 1239 (D. Utah, 1989)
STATE FARM MUT. AUTO. INS. v. Royal Ins. Co.
382 N.W.2d 2 (Nebraska Supreme Court, 1986)
Hemenway v. MFA Life Insurance
318 N.W.2d 70 (Nebraska Supreme Court, 1982)
Auto-Owners Insurance Company v. Wayne Jensen
667 F.2d 714 (Eighth Circuit, 1981)
Auto-Owners Insurance v. Jensen
667 F.2d 714 (Eighth Circuit, 1981)
Rodriguez v. Government Employees Insurance
313 N.W.2d 642 (Nebraska Supreme Court, 1981)
Dairyland Insurance v. Esterling
290 N.W.2d 209 (Nebraska Supreme Court, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
290 N.W.2d 209, 205 Neb. 750, 1980 Neb. LEXIS 784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dairyland-insurance-v-esterling-neb-1980.