is a liability policy, not an accident policy.'
The Court affirmed the lower Court.
As above indicated, the instant case presents almost identically the same set of facts as are found in Great American, with, of course, the family car coverage vis-a-vis the business car coverage.
Plaintiffs argue that to extend the family relationship conclusions of Great American to the business relationship situation in the instant case would be 'completely unwarranted.' Plaintiffs' argument is patently specious and totally unconvincing.
In Great American, supra, the Court cited with approval Pearson v. Johnson, 215 Minn. 480, 10 N.W.2d 357 (1943), which involved an identical factual situation and in which the Court ruled that the exclusionary language in the policy applied. After noting that the policy in Pearson was identical with the one in Great American, it quoted from Pearson as follows:
'* * * 'The word 'insured' is defined by the policy itself to include for the purposes named at all times the named insured, Pearson. That the policy gives its broader application so as to include persons driving with the named insured's consent cannot be said to wipe out the exemptions expressly incorporated into the policy to prevent the insured, that is, the named insured and his family from recovery for their own injuries. The policy is essentially a liability and not an accident policy. It is a contract between Pearson and the State Farm Mutual Automobile Insurance Company, by the terms of which the latter agrees to protect the former against liability incurred at the suit of anyone outside his own family or household. Mrs. Pearson is a member of the named insured's household and family and as such is expressly excluded from coverage. The policy provisions creating additional assureds cannot change the essential contract between Pearson and his insurance company. Certainly they cannot be read so as to nullify the expressed exclusions of the policy.' * * *'
In Patton v. Patton, 413 Pa. 566, 198 A.2d 578 (1964), on being asked to reconsider Great American, the Court said: 'we have re-evaluated that ruling and we are convinced that Great American should stand.'
In Patton, supra, John D. Patton was the named insured in an automobile liability policy issued by State Farm Mutual Automobile Insurance Company. The car thus covered, then being operated by George Derr, with Patton's permission, was involved in a collision with another car and at the time, Patton's wife, Esther Patton, and Derr's wife, Mary Derr, were passengers in the Patton car and both sustained personal injuries. Esther Patton and Mary Derr instituted separate trespass actions in the Court of Common Pleas of Schuylkill County against the driver of the other car and, in each suit, Patton and Derr were joined as additional defendants. At the trial, the jury returned verdicts in each action against Patton and Derr and judgments were accordingly entered. To enforce their judgments both plaintiffs issued attachment executions against State Farm. To the judgment holders' interrogatories State Farm filed answers to which the judgment holders demurred and moved for judgments on the pleadings. The Court sustained the demurrers and entered judgments on the pleadings against State Farm. On appeals, the judgment in favor of Esther Patton and against Derr was reversed, and the judgment in favor of Mary Derr was affirmed.
Esther Patton was the wife of the named insured. The Court said, inter alia, in commenting on Great American (413 Pa. 566, 571-572, 198 A.2d 578, 581):
'* * * The thrust of Great American is that the exclusionary clause of the policy excludes from policy coverage any claims for damages for bodily injuries of co-resident members of the family of the named insured. No matter upon whom -- the named insured, the spouse of the named insured or an additional insured -- may rest a legal obligation to pay damages for bodily injuries to co-resident members of the family of the named insured, such damage claims are not covered by the policy.'
Then it added:
'In the case at bar, there is a fact which does not appear in Great American. Esther Patton, the instant claimant, as the spouse of the named insured, is clearly an 'insured' under the 'omnibus clause' of this policy and to permit her to recover under the provisions of this policy against Derr, the additional insured, would extend policy coverage to damage claims of an 'insured' vis-a-vis an 'insured', a result completely at variance with the obvious intent and purpose of the parties to this insurance contract. Not only as a co-resident member of the named insured's family but as an 'insured' under the policy, the claim of Esther Patton against Derr, the additional insured, is not within the policy coverage.'
There can, therefore, be no doubt as to the law of Pennsylvania on this subject.
The policy provisions in clear and unmistakable language exclude from coverage the employee of a named insured. In Topkis v. Rosenzweig, 333 Pa. 529, 531, 5 A.2d 100, 101 (1939), the Court said: 'it is settled that where the language of the policy is clear and unambiguous it cannot be construed to mean otherwise than what it says. It must be given the plain and ordinary meaning of the terms used: * * *'
Accordingly, I find on the basis of the pleadings here that Gochenauer, an employee of the named insured, Wingert, is within the exclusionary clause of the policy, and the coverage under said policy sought by Miller and Bushong, Inc. and Graybill and Bushong, Inc., is precluded.