 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Hawaiian Insurance & Guaranty Co. v. Financial Security Insurance Co.3/18/1991
y for a greater proportion of the loss than that stated . . . below[.]
At the time of the accident, there can be no dispute that the car in question was an "owned" automobile of Gilwick for purposes of the policy, that Sheldon was using the automobile with the permission of Gilwick, and that that use was within the scope of the permission given by Gilwick.
This is not a question of "stacking," as the majority opinion intimates, but a question of whether or not the HIG policy covered the Sheldons at the time of the accident. In my view, it clearly did.
I know of nothing in the law that prohibits two parties, each having interests in a vehicle from taking out separate liability policies thereon. The policy expressly contemplates that possibility.
The majority is holding that, somehow or other, the otherwise valid and subsisting HIG policy was terminated.
Was it terminated by the act of transferring possession to the Sheldons? If so, then the policy language, defining an insured as a person to whom permission to use is given, is surplusage in the policy, and must be disregarded. Was it the act of the Sheldons in taking out insurance? If so, where is the provision in the policy or in the law that says the fact that a second person takes out a liability policy on the same vehicle cancels any other policies?
In reaching its result, the majority not only ignores the policy provisions which made Sheldon an "insured" at the time of the accident, but goes on to emasculate the plain language of HRS § 286-52(e) (1976) and HRS § 294-2(13) (1976 & Supp. 1984), both of which so define "owner" as to include the "insured" under the policy which HIG issued.
The majority talks of the reasonable expectations of the parties to the contract, but there is nothing in the record, that I am aware of, to show that HIG and Gilwick did not expect the casualty policy to cover liability to persons using the vehicle with the permission of Gilwick. Indeed, the policy language is exactly the contrary.
HIG issued the policy in question for a consideration. That policy, by its express terms, covered the Sheldons, and it should have followed that HIG, as well as Financial Security, the Sheldons' insurer, were both obligated to defend and indemnify for the injuries arising out of the driver's negligence. Nothing in the law, or in the language of the policy issued by HIG, terminated it when either possession was delivered to the Sheldons, or when the Sheldons took out their insurance policy. Accordingly, I would reverse the judgment below.
Page 1 2 3 4 5 6 7 Hawaii Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|