Seaboard Fire & Marine Insurance Company v. Daniel Gibbs

392 F.2d 793, 1968 U.S. App. LEXIS 7915
CourtCourt of Appeals for the Fourth Circuit
DecidedFebruary 28, 1968
Docket11433_1
StatusPublished
Cited by14 cases

This text of 392 F.2d 793 (Seaboard Fire & Marine Insurance Company v. Daniel Gibbs) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Seaboard Fire & Marine Insurance Company v. Daniel Gibbs, 392 F.2d 793, 1968 U.S. App. LEXIS 7915 (4th Cir. 1968).

Opinions

BUTZNER, Circuit Judge:

Seaboard Fire & Marine Insurance Company appeals a declaration that it is required to defend and respond in damages that its insured may suffer under provisions relating to a non-owned automobile found in a liability insurance policy issued Daniel Gibbs.1 We believe the policy did not afford coverage, and reverse.

Gibbs, a farm hand driving his employer’s truck, injured Thaddeus Brisbane. Seaboard insured Gibbs against liability arising out of use of his own pickup truck (not here involved) and some, but not all, non-owned automobiles. Seaboard refused to defend Brisbane’s suit against Gibbs, and, invoking the diversity jurisdiction of the district court, brought this action for a declaratory judgment.2

I.

On the threshold question, we agree with the district judge that the truck driven by Gibbs met the policy definition of an automobile — “ * * * a four wheel land motor vehicle designed for use principally upon public roads * * *.” Seaboard recognizes that the definition of an automobile includes a truck. This concession is inescapable because the policy was written to cover Gibbs’ pickup truck. Gibbs’ employer’s truck is not within the definition, Seaboard claims, because it had six wheels— two on the front axle and four on the rear axle — instead of four wheels as specified in the policy definition. The literalness of this contention is attractive, but it is not in accord with well settled principles of South Carolina law. The terms of an insurance policy must be construed liberally in favor of the insured, and where the words of the policy are capable of two reasonable interpretations, the construction more favorable to the insured should be adopted. See Myers v. Calvert Fire Ins. Co., 246 S.C. 46, 142 S.E.2d 704, 705 (1965). The policy’s definition of an automobile is designed to exclude vehicles such as motorcycles, golf carts, and heavy equipment with treads.3 “Four wheels” is simply a generic term. The truck Gibbs drove could have been used with four wheels. The evidence discloses no significant change in function by the optional use of dual wheels on the rear axle.

II.

Seaboard insured Gibbs when he was using a non-owned automobile within the scope of permission granted by its owners. The policy defines a non-owned automobile as “ * * * an ‘automobile not owned by or furnished or available for the regular use of * * * the named insured * * * ’.” When the [795]*795accident occurred, Gibbs, acting within the scope of the permission granted to him, was driving his employer’s truck. The principal issue is whether the truck was “furnished or available for the regular use of” Gibbs. The district judge accurately summarized the evidence in his opinion, Seaboard Fire &Marine Ins. Co. v. Gibbs, 265 F.Supp. 623, 626 (D.S.C.1967):

“The named insured Daniel Gibbs was a forty-eight year old resident of Wadmalaw Island who worked for Messrs. A. W. Leland and K. W. Leland as a farmhand on their farm. He had worked for them for more than fifteen years, and he was in their employ at the time of the accident. For the last seven or eight years Gibbs had been driving trucks for the Le-lands in connection with their agricultural operations. Gibbs was the only hand on the Leland farm that was qualified to drive the truck, and it was one of his duties to take the truck home at night and to return with it in the morning and to transport other farmhands to and from the Leland farms. The evidence shows that this involved no deviation from Gibbs’ route to and from his place of employment. On some occasions Gibbs was driven home by his employers, and on those occasions the truck was not left with him. On occasions Gibbs was allowed to keep the truck at his home over the weekend.
“Of the three trucks operated by the Lelands, Gibbs was authorized from time to time to drive them all, but he regularly drove the Chevrolet which was involved in the accident. That truck was a two axle truck with tandem rear wheels. It could be operated with four wheels, but in the normal course of operation, and without exception so far as the record shows, it was operated with six wheels.
“The Leland farms employed only some five regular hands but at times— such as setting crops or gathering crops — other workers would be hired. It was customary for those workers who wanted the additional jobs at setting time or harvest time to wait on the road in the early morning for Gibbs to come by on his way to the farm. Gibbs would pick them up as a matter of course and take them with him to the Leland farm where they would be hired if needed by the Le-lands. Gibbs worked regularly, and he was paid weekly for the days he had worked. If he worked less than a week, he was paid for only the number of days that he actually worked. The additional laborers employed at times were, presumably, employed by the day.
“During this cabbage setting season the Lelands employed a work force of approximately twenty-five to thirty workers. Only a portion of these would wait for the coming of the truck on the road for transportation to the farms. Whether all of these workers were employed every time they reported is not apparent from the record. Some regular workers were transported to work on the truck, depending on the fields to be worked that day, but the Lelands maintained that they did not consider anyone on the job until they had reported for work and had received assignments. The transportation of the laborers was admittedly to the benefit of the Le-lands. The Lelands considered that the bringing of the farmhands to work was on their business. According to Aaron W. Leland the truck was not assigned to Gibbs. The principal duty of Gibbs, as his employer considered it, was to drive tractors for production and not, simply, to transport the workers. The transportation duties were on occasion taken by Mr. Aaron Leland himself.”

The clause, “furnished for regular use,” has been interpreted by the Supreme Court of South Carolina in two recent cases. Grantham v. United States Fidelity & Guar. Co., 245 S.C. 144, 139 S.E.2d 744 (1964), denied coverage to a deputy sheriff who used an automobile furnished by Beaufort County on a [796]*796full time basis in the performance of his duties and for personal purposes in the county. At the time of the accident, the officer had obtained special permission to drive the automobile on a personal trip outside the county. The court said (139 S.E.2d at 746):

“Insofar as it affects this case, the policy in question extends coverage to the insured if the injury is sustained while occupying an automobile other than the one defined in the policy, if the other automobile is not ‘furnished for the regular use’ of the insured or her husband. The purpose of such policy provisions is to afford coverage for the infrequent and casual use of vehicles other than the one described in the policy, but not to cover the insured with respect to his use of another vehicle which he frequently uses or has the opportunity to use. The intent is clear to protect the insurer from a situation whereby an insured could purchase a policy covering one automobile and be covered without qualification as to all automobiles available for his use.” 4

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Bluebook (online)
392 F.2d 793, 1968 U.S. App. LEXIS 7915, Counsel Stack Legal Research, https://law.counselstack.com/opinion/seaboard-fire-marine-insurance-company-v-daniel-gibbs-ca4-1968.