The opinion of the court was delivered by: Knoch, District Judge.
This matter comes on to be heard on motion for reconsideration
of plaintiff's motion for summary judgment declaratory of his
right to be defended by defendant in a civil action brought
against him to recover for personal injuries.
The Court has had the benefit of argument of counsel on briefs,
and it now appears that the pertinent facts are not in dispute,
the issue being one of law.
It is uncontroverted that the action brought against plaintiff
arises out of a collision in Minnesota between a civilian
automobile and a 2 1/2-ton military truck owned by the National
Guard and driven by plaintiff, a member of the National Guard, on
duty, and returning from two weeks' "summer encampment."
It is plaintiff's contention that defendant owes plaintiff a
duty to defend the action brought against him because on the date
of the collision, plaintiff owned a passenger automobile on which
he carried liability insurance with defendant. The insurance
policy on which plaintiff relies includes the following
"If the named insured is an individual * * * and if
during the policy period such named insured owns a
private passenger automobile covered by this policy,
such insurance as is afforded by this policy under
Coverages A, B, D and F, with respect to said
automobile apply with respect to any other
automobile. * * *"
Defendant relies on other provisions of that same policy which
read as follows:
"* * * (d) This insuring agreement does not apply:
"(1) to any automobile owned by or furnished for
regular use to either the named insured or a member
of the same household other than a private chauffeur
or domestic servant of such named insured or
spouse; * * *"
"* * * (3) under Coverages A, B, or D, to any
automobile while used in a business or occupation of
such named insured or spouse except a private
passenger automobile operated or occupied by such
named insured, spouse, private chauffeur or domestic
servant; * * *."
It appears to the Court that it is also uncontroverted that the
policy provisions on which plaintiff relies are intended to cover
under the single premium occasional or casual use of unspecified
From the factual allegations in the pleadings and supporting
documents, exclusive of mere conclusions drawn by pleader or
affiant, it is the opinion of the Court that the military truck
was furnished to plaintiff "for regular use" within the meaning
of the policy while he was acting under military orders, although
plaintiff was to use the truck actually on only two occasions
during the period of duty, as it happened.
The Court is further of the opinion that the military vehicle
was "used in a business or occupation" by plaintiff while on paid
military duty and hence was excluded from coverage under the
policy as it was not a private passenger automobile.
It is therefore ordered that plaintiff's motion be and it is
hereby denied; and it is further ordered that plaintiff's ...