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Miller v. O'Brien8/2/2005
nition of an insured under the policy. Thus, the liability plus endorsement modified the definition of an insured contained in a specific portion of the base policy form.
The express language of the "Hired Auto and Non-Owned Auto Liability" endorsement, on the other hand, provides a different definition of "who is an insured" from the definition provided in the base policy "for insurance provided by this endorsement only ". The language contained in the definition specifically states, "Each of the following is an insured under this endorsement . . .." (emphasis added). Accordingly, the endorsement clearly provides that "who is an insured" under the endorsement differs from "who is an insured" under the base policy.
Regardless of when the liability plus endorsement was drafted or copyrighted or where it was placed in the order of the forms comprising the policy, the language of that endorsement cannot be read to intend for its definition of "who is an insured" to supplant the definition provided for in the "Hired Auto and Non-Owned Auto Liability" endorsement. The language of the liability plus endorsement was clearly limited to replacing a specific portion of the language in the base policy and did not purport to alter any language contained in any other endorsement. The "Hired Auto and Non-Owned Auto Liability" endorsement clearly and plainly contains its own definition of "who is an insured" with regard to who is covered by the supplemental insurance provided by that endorsement. Neither the liability plus endorsement nor the "Hired Auto and Non-Owned Auto Liability" endorsement is reasonably open to the interpretation afforded by the trial court that the definition of "who is an insured", as modified by the liability plus endorsement, was meant by the parties to supplant the definition of "who is an insured" in the "Hired Auto and Non-Owned Auto Liability" endorsement. Accordingly, the provisions of the policy defining "who is an insured" for purposes of the coverage afforded under the "Hired Auto and Non-Owned Auto Liability" endorsement is not ambiguous, and the trial court erred in finding to the contrary.
O'Brien simply does not fall within the parameters of "who is an insured" as set forth in the "Hired Auto and Non-Owned Auto Liability" endorsement since he is not a named insured, a partner or executive officer of a named insured, or a person using a "hired auto" with the insured's permission. In fact, as the owner of the "non-owned auto" involved in the accident, the endorsement specifically excludes him from being considered an insured. In this regard, the endorsement states: "None of the following is an insured: . . . The owner or lessee . . . of a 'hired auto' or the owner of a 'non-owned auto' or any agent or 'employee' of any such owner or lessee." (emphasis added). As O'Brien does not qualify as an insured under this endorsement, the endorsement does not afford coverage to pay the judgment entered against O'Brien in favor of Miller.
In similar fashion, the trial court also erred in finding that the auto exclusion contained in the Businessowners Liability Coverage Form was deleted for all purposes by the "Hired Auto and Non-Owned Auto Liability" endorsement. The language of the endorsement specifically provides that the auto exclusion (among others) is deleted " or insurance provided by this endorsement only." This plain language does not provide for the auto exclusion to be generally removed from the policy and is only applicable to coverage provided under the "Hired Auto and Non-Owned Auto Liability" endorsement.
Furthermore, " he plain meaning of the words and phrases used in an insurance policy is not determined in isolation, but with ref
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