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DENSMORE v. HARTFORD ACCIDENT & INDEM. CO.

September 23, 1963

Dorothy Ruth DENSMORE, Administratrix of the Estate of Robert Densmore, Deceased
v.
HARTFORD ACCIDENT & INDEMNITY COMPANY, Defendant-Garnishee



The opinion of the court was delivered by: GOURLEY

This is an attachment garnishee proceeding against the liability insurance carrier of a judgment debtor in an action arising out of a Pennsylvania motor vehicle accident. *fn1"

The following issues or questions are presented:

 (1) Was the liability insurance policy in full force and effect on the date of the accident? The answer is 'Yes.'

 (2) Did the terms and provisions of the insurance policy extend coverage to the insured on the date of the accident? The answer is 'Yes.'

 HISTORY

 At the time the policy was issued, the law in the State of New York required a person who desired to operate a motor vehicle to secure liability and property insurance coverage. Coverage was secured in accordance with the law of said state, and the defendant in this proceeding was required to issue said policy. An agent was secured by the insured solely for the issuance of the policy and premium payment made. Subsequent thereto, insurance carrier and the limited agent of the insured endeavored to cancel the policy. Shortly after the policy was issued, insured was involved in an accident and completely demolished said vehicle which was sold for junk. Insured was confined to jail in New Jersey. After discharge from the jail, the insured stole an automobile, drove it to Pennsylvania, and became involved in the accident of October 1, 1959, which was the basis for the judgment rendered in Civil Action No. 60-42 in this Court.

 DISCUSSION

 I. Was the policy canceled in accordance with the law of New York?

 Under the financial responsibility law of New York, no person is permitted to operate a motor vehicle without securing an automobile liability insurance policy, and the intent and purpose of the law is to prohibit any person from operating any motor vehicle without said coverage in order to protect the public from persons who are subject to tortious conduct arising out of the operation of a motor vehicle. *fn2"

 When the policy was secured through an agent in the State of New York, the purpose of the agency was limited solely to the issuance of the policy. The contention that the efforts of the agent to cancel the policy constitutes a cancellation on the legal thesis that the agency to issue the policy gives a right to cancel must fail. The law is settled that an agent who is secured for a specific purpose is not an agent for any other purpose. Restatement (Second), Agency § 106 (1958).

 Since the agent had no communication in any way whatsoever with the insured after the policy was issued and the premium was paid in full, the authority of the agent was terminated once the policy was issued. I, therefore, must conclude that the insured agent had no authority to cancel the policy.

 II. Did the insurance company cancel the policy in accordance with the law of New York?

 Ten days' written notice was given and although the cancellation notice was not received, if ten days' notice was sufficient, cancellation would have been effected.

 The statutes relative to the requirements which must be met for a policy to be canceled require the conclusion that twenty days' notice of cancellation is mandatory. Laws of New York, 1956, ch. 655, § 93-c; Laws of New York, 1958, ch. 661; Laws of New York, 1958, ch. 696. Therefore, the policy was in full force and effect when the accident occurred in Pennsylvania on October 1, 1959.

 III. Does coverage exist under the liability policy?

 The interpretation of the insurance policy requires application of the rule that it shall be construed against the party who writes the contract. E.g. Liberty Mut. Ins. Co. v. Hercules Powder Co., 224 F.2d 293 (3rd Cir., 1955).

 Since the vehicle originally insured was destroyed in the New Jersey accident, I conclude that coverage exists under Policy Sections I and IV(a)(3) as a temporary substitute automobile, even though the vehicle was stolen. The thesis of the insurance carrier that coverage should not apply for the reason that the vehicle was stolen does not relieve the insurance carrier from liability. The Court cannot rewrite the insurance contract and there is no provision therein which relates to a stolen vehicle. The carrier could or should have specifically set forth in the insurance contract that coverage would not exist, and failure so to do does not relieve the carrier from responsibility. It should be stated that when the accident occurred in Pennsylvania, the insured was not engaged in any illegal course of conduct, was not being pursued by police officers, and the accident which gives rise to the attachment garnishee proceeding occurred solely through negligence, the theft being merely incidental to the occurrence.

 Insurance company also contends that there is no policy coverage for the following reasons:

 A. Joseph, the insured, when applying for insurance, represented himself as being 25 years of age when he was actually 23 years of age.

 B. Joseph moved from his residence without leaving a forwarding address.

 C. Joseph was operating a motor vehicle beyond the area included under the policy in that he used it otherwise than to travel to and from work.

 As to the second and third contentions, it is clear that neither precludes coverage nor voids the policy. The policy contains no provision requiring that a forwarding address be given, and the Court will not read such a requirement into the policy by implication, nor does the policy limit coverage to use while traveling to and from work. Even had such use been given in the application as the expected use, clearly there cannot have been an intent or representation by Insured that such was to be the only use. In fact, on the Application for Liability Insurance under Automobile Assigned Risk Plan, the expected usage is stated to be 'pleasure,' and the policy itself clearly provides in Item 6 on the Declarations page that the purposes for which the automobile is to be used are pleasure and business. Insured's use certainly qualifies as either personal, pleasure, family or business use, the ...


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