coverage is excess over that of any other valid or collectible insurance.
Plaintiff contends that the automobile involved in this accident was not a non-owned automobile and that Clause 13 of defendant's policy is not applicable and the coverage afforded by Great American's policy is primary and concurrent with that of Manufacturers Casualty. Plaintiff bases its contention largely upon the definitions set forth in defendant's policy. Automobiles are separated into three categories. (1) 'Owned'; defined as any automobile owned by the named insured. (2) 'Hired'; an automobile used under contract in behalf of, or loaned to, the named insured, with certain exceptions not here important. (3) 'Non-owned Automobiles'; defined as any other automobile. Plaintiff takes the definition of non-owned automobile and attempts to show by the definition of hired automobile, which includes loaned automobiles, that this is not a non-owned automobile. Therefore, argues the plaintiff, the provisions of Clause 13 do not apply, and under the terms of coverages A and C of the insuring agreements, Great American's policy provides concurrent primary coverage.
Plaintiff's interpretation of the words 'non-owned' appear to me strained and technical in the extreme, and I have read the provisions of the Great American policy in the same technical light. Plaintiff, as before stated, puts great store in the terms 'non-owned' and 'hired' automobiles as defined in the Great American policy. Doing the same, I find that an owned automobile is any automobile owned by the named insured, a hired automobile is any automobile hired under contract in behalf of the named insured, and any automobile loaned to the named insured. A 'non-owned' automobile is defined as any other automobile. It is noted from the foregoing definitions that the various categories of automobile are defined in terms of relationship to the named insured, Thermal Belt Resorts, Inc. Technically, therefore, a hired automobile is one which was hired to the named insured, or loaned to the named insured, and if a particular automobile does not fit in that classification or in the classification of 'owned' automobile, it is relegated to the catch-all category, 'non-owned'.
The all important question, therefore, is: Was this automobile loaned to the named insured? The determination of that issue will have a very important bearing upon the decision asked for in the complaint for declaratory judgment. It is to that issue that defendant's motion for leave to amend its answer is directed. Defendant's counsel now seeks to deny, after receipt of more detailed information from his client, that this automobile was loaned to Fuchs in his corporate capacity. What the true facts are in that respect we have no way of knowing at this time. If defendant can prove that the automobile was loaned to Fuchs personally, even if he used it on the business of the corporation, it may be that in legal contemplation, the automobile was not 'loaned to the named insured', i.e., the Thermal Belt Resorts, Inc. If this automobile was not loaned to the corporation then it does not come within the definition of 'hired' automobile under the terms of the Great American policy and it would, therefore, be relegated to the category of 'non-owned' automobile. As before indicated, if it is a non-owned automobile, then Great American's coverage is excess over that of Manufacturers Casualty's. It is clear from the foregoing discussion, therefore, that the Court cannot make a proper decision in the declaratory judgment proceeding without a full presentation of the facts surrounding the loan of the car to Fuchs. Since the determination of those facts will have such an important bearing upon the decision in the declaratory judgment proceeding, I feel that defendant's motion for leave to amend its answer should be granted and I make the following
And Now, to wit, this 20th day of June, 1950, for the reasons set forth in the foregoing Memorandum Opinion, it is
Ordered, Adjudged And Decreed
that defendant's motion for leave to amend answer to complaint for declaratory judgment be and it is hereby Granted.
It is further Ordered that defendant's motion to dismiss, motion for an order directing plaintiff to summon an additional defendant, and motion for summary judgment, and plaintiff's motion for summary judgment, be and they are hereby Dismissed without prejudice.
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