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VOWINCKEL ET AL. v. DONEGAL MUTUAL INSURANCE COMPANY. (06/12/63)

June 12, 1963

VOWINCKEL ET AL., APPELLANTS,
v.
DONEGAL MUTUAL INSURANCE COMPANY.



Appeal, No. 125, April T., 1963, from order of Court of Common Pleas of Clarion County, Aug. T., 1961, No. 61, in case of Frank Vowinckel et al. v. Donegal Mutual Insurance Company. Order reversed.

COUNSEL

Charles R. Alexander, for appellants.

Arnold E. Dolby, for appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Flood

[ 201 Pa. Super. Page 230]

OPINION BY FLOOD, J.

The defendant insured the contents of the plaintiffs' garage building against fire and, by an extended coverage endorsement, against direct loss by vehicles. The complaint avers that when one of the plaintiffs' employes was removing a wheel from a jeep in the garage, it fell from a floor jack and struck their motor tester, damaging it to the extent of $580.

The court below sustained a demurrer to the complaint upon the ground that the accident was not covered by the extended coverage provision. The pertinent paragraph of the endorsement, entitled Provisions Applicable Only to Loss by Aircraft and Vehicles, reads as follows:

"The term 'vehicles', as used in this Endorsement, means vehicles running on land or tracks but not aircraft. Loss by aircraft or by vehicles shall include only direct loss resulting from actual physical contact of an aircraft or a vehicle with the property covered hereunder or with the building containing the property covered hereunder, except that loss by aircraft includes direct loss by objects falling therefrom. This Company shall not be liable, however, for loss (a) by any vehicle

[ 201 Pa. Super. Page 231]

    owned or operated by the insured or by any tenant of the described premises; (b) by any vehicle to fences, driveways, walks or lawns; (c) to any aircraft or vehicle including contents thereof other than stocks of aircraft or vehicles in process of manufacturing or for sale."

The court below held that the first sentence of this paragraph unambiguously excluded coverage for damage resulting from contact with a vehicle which, at the time, was not running on land or tracks. The question raised on this appeal is whether this sentence is merely descriptive of the kind of vehicle against which the plaintiffs are insured with regard to property damage or whether it is part of the description of the event they are insured against, to wit, loss by physical contact with a vehicle which is running on land or tracks at the time.

At first blush it might seem when the policy says that "the term 'vehicles'... means vehicles running on land or tracks..." nothing is insured against except damage from a vehicle running at the time on land or tracks. The court below adopted this view and held that "running" as used in this sentence was not equivalent to "which runs" and to so construe it would be to rewrite the policy. Further ...


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