United States Fidelity & Guaranty Co. v. American Interinsurance Exchange

718 S.W.2d 955, 1986 Ky. App. LEXIS 1468
CourtCourt of Appeals of Kentucky
DecidedOctober 24, 1986
StatusPublished
Cited by3 cases

This text of 718 S.W.2d 955 (United States Fidelity & Guaranty Co. v. American Interinsurance Exchange) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States Fidelity & Guaranty Co. v. American Interinsurance Exchange, 718 S.W.2d 955, 1986 Ky. App. LEXIS 1468 (Ky. Ct. App. 1986).

Opinion

CLAYTON, Judge.

This appeal arises from a declaratory judgment action between two insurers to determine which must provide automobile liability coverage to an insured sued as a result of an automobile accident involving a pedestrian. The circuit court below entered a judgment for the appellee, American Interinsurance Exchange (AIE), holding that the “public or livery conveyance exclusion” of its policy applied to exclude coverage to the insured, Verna Mouser. The appellant, United States Fidelity and Guaranty Company (USF & G), was determined by the same judgment to have primary and sole liability coverage and duty to defend. We disagree with this conclusion and accordingly reverse the judgment of the Nelson Circuit Court.

On Monday, January 3, 1983, Verna Mouser was returning several elderly women to their homes in Nelson County, Kentucky, after having taken them to apply for federal fuel bill assistance. While driving toward New Hope, Kentucky, Mouser stopped her car to drop off one of the passengers, Imelda Ratliff, at her home. In the process of turning the car around, Mouser allegedly backed into Ratliff causing her serious physical injury.

At the time of the accident, Mouser was driving her personal automobile, which was covered by a garage liability insurance policy issued by AIE to her husband, a used car dealer. Under the terms of that policy, no coverage applied while the automobile [956]*956was being used as a “public or livery conveyance.” In addition to the policy issued by AIE, a separate automobile liability policy had been issued to Mouser’s employer, the Community Action Agency (Agency). The Agency is a nonprofit social service agency funded by federal and state government. Included within its organization is the Aging Office directed by Lois Glas-scock, Mouser’s immediate supervisor. As Glasscock by deposition explains, the aging program extends services to senior citizens in the eight Lincoln Trail Counties, including home meal delivery, transportation, outreach, information, and referral services. As part of the transportation services, persons over sixty years of age or their spouses, could request transportation to nutrition centers, doctors, shopping, the social security office, the local Department for Human Relations office, and in some counties, the bank. Although no direct fee was demanded of passengers, a 25 cent donation was requested. No one was to be denied services, however, if they chose not to contribute and records showed that only approximately half of the passengers chose to do so. In the course of providing these services, the Agency had established certain driving routes on predetermined days, with exceptions being made in the case of emergency medical services. According to Glasscock, most of the senior citizen transportation provided was route transportation.

While the Agency did have approximately 17 of its own federally purchased vehicles to provide these aging services, employees such as Mouser, an outreach driver since 1982, did use their personal vehicles on certain days for which they were reimbursed 18.5 cents per mile. Ordinarily Mouser would drive her own car on Tuesdays and Wednesdays to deliver meals to the homebound and look in on elderly service recipients. Agency records kept during the month of January in 1988 reveal that Mouser was reimbursed $164.08 for having driven 886 miles in the course of delivering 102 meals and carrying 784 passengers. Although the federally-funded Agency vehicles (mostly passenger vans) were required by federal regulation to transport the paying public at $1.50 a trip should any seats be empty, private vehicles such as Mouser’s were not required to comply with this regulation. Mouser, in her deposition, denied ever having transported the general public, stating “I am not for hire, I am no taxi.” That Monday, the day of Ratliff’s injury, Mouser would not normally have been driving for the Agency except that application for federally-funded fuel assistance for the elderly was required to be made that day.

Based upon these facts, the Nelson Circuit Court determined that on January 3, 1983, Mouser was using her personal vehicle as a “substitute vehicle” for the vans owned by the Agency. Citing Concord General Mutual Insurance Co. v. Home Indemnity Co., 368 A.2d 596, 597 (Maine 1977), the trial court found the Agency vans to be similar to the school buses discussed in Concord and thus a “livery conveyance.”

For several reasons, we cannot accept Concord as being dispositive. In Concord, an employee of the public works department of Biddeford, Maine, was struck and killed by a school bus. The bus driver’s private insurance company, Concord, brought an action under Maine’s Uniform Declaratory Judgment Act to determine its duty to defend. By agreement, Concord and Home Indemnity, Biddeford’s insurer, submitted the action to a referee. After a hearing, the referee found that the bus driver’s private insuror had no duty to defend as the school bus involved was, at the time, a livery conveyance excluded from coverage under Concord’s policy. No timely objections were filed to this finding. Accordingly, the report was accepted by the Superior Court and judgment was entered. On appeal to the Supreme Judicial Court of Maine, two issues were discussed: the fellow employee exclusion and the workmen’s compensation exclusion.

Neither of these exclusions is relevant to the issue at hand. In this respect, the decision does nothing more than make general reference to the public conveyance and [957]*957livery exclusion in discussing the history of the case. No analysis of the exclusion is given. Moreover, Concord is factually distinguishable, as the bus driver involved was not driving her personal vehicle at the time of the accident. Nor is there any indication from the opinion that the driver ever drove her private vehicle in fulfilment of her duties as a bus driver. Thus, we place little weight upon Concord, factually or legally, in resolving the present question.

While no Kentucky judicial decisions have yet addressed the issue of defining a “public or livery conveyance” exclusion, a multitude of other jurisdictions have taken the opportunity to do so. See generally Annot., 30 ALR2d 273 (1952). From their efforts, we arrive at the following generally accepted definition,

The term “public conveyance” means a vehicle used indiscriminately in conveying the public, and not limited to certain persons and particular occasions or governed by special terms. The words “public conveyance” imply the holding out of the vehicle to the general public for carrying passengers for hire. The words “livery conveyance” have about the same meaning.

Lakeshore Dev. Corp. v. Gulf Ins. Co., 353 F.2d 163, 165 (5th Cir.1965); Allstate Ins. Co. v. Roberson, 217 F.2d 10, 13 (8th Cir.1954); Elliott v. Behner, 150 Kan. 876, 96 P.2d 852, 857 (Kan.1940); Stanley v. American Motorists Insurance Co., 195 Md. 107, 73 A2d (4), (Md.1950); American Fidelity Fire Ins. Co. v. Pardo, 299 N.Y.S.2d 521, 523 (N.Y.Sup.Ct.1969); Smith v. Stonewall Casualty Co., 212 Va.

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Bluebook (online)
718 S.W.2d 955, 1986 Ky. App. LEXIS 1468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-fidelity-guaranty-co-v-american-interinsurance-exchange-kyctapp-1986.