Gilbreath v. St. Paul Fire & Marine Insurance

685 P.2d 750, 141 Ariz. 113, 1983 Ariz. App. LEXIS 725
CourtCourt of Appeals of Arizona
DecidedMay 17, 1983
DocketNo. 1 CA-CIV 5590
StatusPublished
Cited by1 cases

This text of 685 P.2d 750 (Gilbreath v. St. Paul Fire & Marine Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gilbreath v. St. Paul Fire & Marine Insurance, 685 P.2d 750, 141 Ariz. 113, 1983 Ariz. App. LEXIS 725 (Ark. Ct. App. 1983).

Opinions

OPINION

EUBANK, Judge.

This is an appeal by St. Paul Fire and Marine Insurance Company (Insurer) from a declaratory judgment in favor of Michelle Gilbreath (Michelle) holding the Insurer liable under its policy No. 689NA4386 which insured Paul and Helen Overdorff (Over-dorffs), owners and operators of a business named Young Years Child Care, irrespective of Endorsement Number 2 of the policy.

Two issues are presented in this appeal:

(1) Whether the trial court erred in its interpretation of the Endorsement phrase “care, custody, or control of the insured” and in granting judgment to appellees based on that interpretation?
(2) Whether the trial court erred in denying appellant’s collateral attack upon the portion of the underlying tort judgment in favor of appellee Diana Hassl individually?

The facts underlying this appeal are simple and not in dispute. Paul and Helen Overdorff were the owners of a sole proprietorship business named Young Years Child Care. They hired as an employee Pedro Giron. In December 1976, appellee Michelle Gilbreath, then eight years old, was sexually assaulted by Giron while he was in the course of his employment with Young Years.

Prior to the assault, on September 1, 1976, appellant St. Paul Fire and Marine [114]*114Insurance Company had issued to the Over-dorffs its general policy upon the premises of Young Years for fire, bodily injury liability, property damage liability, and burglary loss. Endorsement Number 2 to the liability portion of the policy consisted of the following provision:

It is understood and agreed that no coverage is provided for bodily injury to persons who are in care, custody, or control of the Insured.

A lawsuit was filed by Michelle’s mother, appellee Diana Hassl (Diana), individually and as representative for Michelle, against the Overdorffs and Giron, alleging negligence, breach of contract and intentional tort. The Overdorffs tendered the defense of the tort action to the Insurer based upon the above policy, but the tender was refused, based upon Endorsement Number 2. The Overdorffs then stipulated to a judgment against them in favor of Michelle for $100,000 and Diana for $45,000. The appel-lees then filed an action seeking a declaratory judgment finding coverage under the policy issued by the Insurer. Both Michelle and the Insurer filed motions for summary judgment. The trial court granted Michelle’s motion and denied the Insurer’s. The Insurer had also requested that the trial court declare void the judgment in favor of Diana based on an alleged error of law. This request was impliedly denied by the summary judgment in favor of Michelle and Diana and the denial of the Insurer’s motion. Appellant timely appealed from the judgment.

The first issue is whether Endorsement Number 2 to the liability policy was correctly interpreted not to exclude coverage for the liability sustained by the Overdorffs in the underlying tort judgment. The Insurer argues that the provision unambiguously excludes liability because Michelle was clearly in the care, custody or control of Paul and Helen Overdorff operating the business known as Young Years Child Care. The Insurer further argues that anyone in the care of Young Years is in the care of the Overdorffs, whether she is in the personal care of the Overdorffs, or. in the care of an agent or employee of the Overdorffs. The Insurer argues appellees’ construction would require the wording “in the personal and physical care, custody or control of the Insured.”

Michelle and Diana argue that the key word in interpreting the exclusionary phrase is the word “insured.” They argue that Giron clearly is not an insured under the policy. They reason that Insurer’s construction would require the wording, “in the care, custody, or control of the Insured and his agents.” At any rate, appellees argue the exclusion is ambiguous, and therefore must be construed against the interpretation argued by the Insurer.

In Cagle v. Home Insurance Co., 14 Ariz.App. 360, 483 P.2d 592 (1971), we quoted the Arizona Supreme Court’s statement regarding the rules of construction applicable to an insurance contract as follows:

“In the absence of a statutory provision which will be read into each policy issued thereunder and cannot be contracted away by either party, United States Fidelity and Guaranty Company v. Hirsch, 94 Ariz. 331, 385 P.2d 211 (1963), the principles to be applied in construing an insurance policy have been stated by this Court, in a series of decisions and may be summarized as follows: The cardinal principle pertaining to the construction and interpretation of insurance contracts is that the intention of the parties should control. An insurance policy is a contract, and in an action based thereon the terms of the policy must govern. * * * [Wjhere the provisions of the contract are plain and unambiguous upon their face, they must be applied as written, and the cc urt will not pervert or do violence to the language used, or expand it beyond its plain and ordinary meaning or add something to the contract which the parties have not put there. [Citation of cases.]” D.M.A.F.B. Federal Credit Union v. Employers Mut. Liability Ins. Co. of Wis., 96 Ariz. 399, 396 P.2d 20 (1964).

14 Ariz.App. at 363, 483 P.2d at 595. See Dairyland Mutual Insurance Co. v. An[115]*115derson, 102 Ariz. 515, 517, 433 P.2d 963, 965 (1967). A.R.S. § 20-1119, involving the construction of insurance policies, provides: “Every insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy and as amplified, extended or modified by any rider, endorsement or application attached to and made a part of the policy.” Regarding endorsements to the contract of insurance, the rules of construction are the same as outlined in Cagle.

The intention of the parties to an insurance contract is controlling, D.M.A.F.B. Fed. Cr. U. v. Employers Mut. L. Ins. Co. of Wis., 96 Ariz. 399, 402, 396 P.2d 20, 22-23 (1964), and all of the policy, including the endorsement must be read as a whole. Droz v. Paul Revere Life Insurance Company, supra [1 Ariz. App. 581, 405 P.2d 833 (1965) ]. “In so far * * * as a rider or indorsement modifies, qualifies, or restricts the terms of the original policy, the rider or indorsement controls.” 1 Couch on Insurance 2d, § 15.30, at 701; and see, to the same effect, Lax v. Fidelity and Casualty Company of New York, 74 N.M. 123, 391 P.2d 411, 413 (1964), and McConnell v. Underwriters at Lloyds of London, 56 Cal.2d 637, 16 Cal.Rptr.

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Related

Gilbreath v. St. Paul Fire & Marine Insurance
685 P.2d 729 (Arizona Supreme Court, 1984)

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Bluebook (online)
685 P.2d 750, 141 Ariz. 113, 1983 Ariz. App. LEXIS 725, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilbreath-v-st-paul-fire-marine-insurance-arizctapp-1983.