Duffy, Castle and Kiley, Circuit Judges.
This is a diversity suit by Hartford Accident & Indemnity Company for a declaratory judgment that it had no duty under its policy No. 40 GF 452322 to defend Thomas J. O'Toole, its insured under that policy, in certain tort suits against him, nor to pay any claim arising out of the accident which gave rise to those suits. The district court decided against Hartford, and it has appealed. We reverse.
On April 17, 1960, O'Toole, a resident of Indiana, was visiting his family in Pennsylvania. He and his sister, also insured by Hartford, traded cars, and he drove her 1959 Ford Thunderbird back to Indiana, leaving his 1957 Ford with her. Prior to the time of this trade O'Toole had been returning to Pennsylvania about once a month and his sister told him on this occasion to return the car as soon as possible. Because of business and social obligations, however, O'Toole did not return to his family home between April 17, 1960 and June 18, 1960, on which date he was involved in an accident in Indiana, while driving the Thunderbird, which gave rise to the suits of Hiland, and the other named defendants, for damages. Hartford has defended and paid claims for O'Toole as an additional insured under its policy with his sister, but denied coverage under its policy with O'Toole and brought this action.
The case was submitted to the district court upon stipulation of jurisdictional facts, the insurance policies, and depositions of Thomas O'Toole and his sister. The parties agreed that the sole issue for decision was whether the Thunderbird was furnished for the "regular use" of O'Toole, so as to be excluded from coverage under the provision in the policy covering his 1957 Ford and insuring him, among other things,
(b) With respect to a non-owned automobile,
(1) the named insured, * * *
provided the actual use thereof is with the permission of the owner;
"non-owned automobile" means an automobile or trailer not owned by or furnished for the regular use of either the named insured or any relative, other than a temporary substituted automobile * * *
The district court found the provision ambiguous and, applying the familiar rule of construction that an instrument will be construed most strongly against him who prepared it, construed the words "furnished for the regular use" of the insured liberally in favor of O'Toole to mean "a vehicle in fact furnished primarily for the insured's own use, benefit and convenience on a normal or usual basis." The court found that O'Toole's sister had furnished the Thunderbird to him for her own purpose of breaking it in and that it was not furnished for his regular use, but "for the use and benefit of its owner."
The O'Toole depositions justify the finding that the exchange of cars was for the sister's benefit. Nevertheless, we think the district court erred in its conclusion that the Thunderbird was "not furnished for the regular use" of Thomas O'Toole.
It is true that the term "regular use" may be used in the sense of time, for example, steady as opposed to occasional; or in the sense of type of use, usual as against unusual. But the courts have found no great difficulty in reasonably interpreting the term in applying it to differing facts in various cases. ...