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Ohio Cas. Ins. v. U.s. Fidelity & Guar. Co.

FEBRUARY 21, 1967.

THE OHIO CASUALTY INSURANCE COMPANY AND WEST AMERICAN INSURANCE COMPANY, PLAINTIFFS-APPELLEES,

v.

UNITED STATES FIDELITY AND GUARANTY COMPANY, FRANCIS T. CARROLL, ET AL., AND PARKWAY MOTORS, INC., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of the Seventeenth Judicial Circuit of Winnebago County; the Hon. ALBERT S. O'SULLIVAN, Judge, presiding. Judgment reversed.

MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.

This appeal from a declaratory judgment involves a dispute between plaintiff insurance companies and the defendant insurance company as to which is responsible under their respective policies for defense and any judgment arising out of an injury suit filed by Carroll against Livesay, Jr.

The facts are not in dispute and only a legal question emerges. The appeal is taken from the judgment declaring that U.S.F. & G. is primarily liable and Ohio Casualty and West American liable for any excess.

Carroll was a salesman-employee of Parkway Motors. In the course of his employment he permitted Livesay, a prospective customer, to drive a car from the lot on a demonstration with himself as a passenger. During the drive Carroll was injured in an accident. It is not questioned that Carroll was under the Workmen's Compensation Act.

The effect of the employee exclusionary clause in Parkway's policy, written by U.S.F. & G., is in issue. Ohio Casualty insured Livesay's father's car and West American insured Livesay's mother's car. Livesay was a permitted user under both of his parents' policies.

The coverage clause in the U.S.F. & G. policy provides:

"I Coverage A — Bodily Injury Liability — Automobile

"To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of any automobile."

The exclusionary clause in the U.S.F. & G. policy provides:

"This policy does not apply

"(g) Under Coverage A (Bodily Injury Liability — Automobile) to bodily injury to or sickness, disease or death of any employee of the insured arising out of and in the course of (1) domestic employment by the Insured, if benefits therefor are in whole or in part either payable or required to be provided under any workmen's compensation law, or (2) other employment by the Insured";

The policy also provides:

"The unqualified word `Insured' includes the named Insured . . ."

There is also a "severability of interests" clause ...


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