 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Employers Mutual Casualty Co.3/14/2001
South Dakota Supreme Court Appeal from the Circuit Court of The Third Judicial Circuit Clark County, South Dakota Hon. Robert L. Timm, Judge
Considered on Briefs November 27, 2000
[ .] State Auto Insurance, Inc. appeals from a judgment determining that 1) Roxann Orr was a named insured under an automobile insurance policy issued to her parents Harold and Marcia Orr, and that 2) State Auto is the primary insurer. We reverse issue 1 and affirm issue 2.
FACTS AND PROCEDURE
[ .] This action arose from a one-car accident that occurred in rural Clark County on February 14, 1998. The vehicle involved was a 1990 Plymouth Acclaim titled in the name of Dale's Service. This vehicle was part of an inventory of a used car lot owned by Dale's Service. Harold and Marcia Orr own Dale's Service.
[ .] Roxann Orr, the daughter of Harold and Marcia Orr, picked up the Plymouth Acclaim from the used car lot at Dale's Service sometime after her shift ended, around 3:00 p.m., on February 14, 1998. In the past, Roxann had often used the car for personal trips. Later that same day, Roxann met with some friends and the decision was made to travel to a dance in Clark. Because Roxann did not know the way to Clark and was uncomfortable driving on gravel roads, she let Christine Benson drive the vehicle. Before they could reach Clark, they were involved in an accident. At the time of the accident, Susan Sigdestad, Rachel Herrick, and Roxann Orr were passengers. Each of the passengers filed personal injury actions against Benson and Clark County.
[ .] Orrs insured Dale's Service with Employers Mutual Casualty Company (Employers). This policy covered the inventory on the car lot. In addition, Orrs had a personal automobile liability policy with State Auto Insurance, Inc. (State Auto). Both policies cover the car in question. American Family Insurance Co. (American Family) provided automobile liability coverage to Benson's family; Benson was insured pursuant to that policy.
[ .] Employers commenced this declaratory action alleging that it owed no duty to defend or indemnify Benson in regard to the claims arising from the February 14, 1998 accident. State Auto filed an answer to the complaint and included a counterclaim and separate cross claims alleging that it had no duty to defend or indemnify Benson. State Auto further sought to have American Family declared the primary insurer.
[ .] Orr's personal automobile liability provided by State Auto contained a family exclusion clause. State Auto maintains that this clause excluded coverage to Roxann Orr, as she was living in the same household with her parents, Harold and Marcia Orr. State Auto did not dispute the claims against Benson asserted by Sigdestad and Herrick; Benson became an insured under the policy by driving the car with the permission of the owner.
[ .] The trial court held that Roxann Orr was a named insured on the State Auto policy and is therefore covered up to $25,000. The court also found that State Auto's coverage is first, American Family's coverage is second, and Employers' last.
[ .] State Auto appeals two issues from the judgment entered by the circuit court on December 1, 1999. The issues to be decided on appeal are:
Whether the trial court erred in finding coverage for Roxann Orr as a named insured; and
Whether the trial court erred in naming State Auto as primary insurer.
STANDARD OF REVIEW
[ .] The construction of a written contract is a question of law. Where an insurance policy is susceptible to different interpretations, the interpretation most favorable to the insured must be
Page 1 2 3 4 5 South Dakota Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|