The opinion of the court was delivered by: DAVIS
The plaintiff, a passenger in the truck driven by defendant, instituted this diversity action against the latter for personal injuries and property damage sustained in an accident on May 8, 1960 on the Pennsylvania Turnpike. The case proceeded to trial, and the plaintiff obtained a judgment against the defendant. An attachment execution was issued against Aetna Insurance Company, the insurer of the truck driven by the defendant. The Insurance Company, however, denies liability. We now have before us the plaintiff's motion for summary judgment and the garnishee's cross motion for summary judgment.
The plaintiff had leased his truck to the Coldway Food Express, Inc., an authorized carrier under the Interstate Commerce Act. Under the agreement, the plaintiff surrendered complete control over the vehicle to the lessee and agreed to operate it as the lessee directed. On the day of the accident, both the plaintiff and the defendant, a relief driver provided at the direction of Coldway, were engaged in transporting goods for the latter from Chicago to New York. The accident itself occurred while the defendant was driving and the plaintiff was asleep in the bed-bunk of the truck.
The question before us is whether or not the policy of insurance that the garnishee had issued to Coldway covers the circumstances involved in the present case. The pertinent provisions of the policy are as follows:
"It is agreed that such insurance as is afforded by the policy for Bodily Injury Liability, * * * applies with respect to all owned automobiles and hired automobiles, and the use, in the business of the named insured, of non-owned automobiles, subject to the following provisions:
(a) except with respect to an employee of the named insured to any person or organization, or to any agent or employee thereof, engaged in the business of transporting property by automobile for the named insured or for others, with respect to any automobile of the commercial type (1) unless the accident occurs while such automobile is being used exclusively in the business of the named insured and over a route the named insured is authorized to serve by federal or public authority * * *
provided, however, a driver or other person furnished to the named insured with an automobile hired by the named insured shall not be deemed an employee of the named insured;
(c) to any employee with respect to injury to or sickness, disease or death of another employee of the same employer injured in the course of such employment in an accident arising out of the maintenance or use of an automobile in the business of such employer:"
The garnishee contends that both plaintiff and defendant were employees of Coldway, the insured, and thus are precluded from recovery under sub-paragraph (c). The plaintiff, on the other hand, argues that he and the defendant were not employees within the meaning of the policy because of the proviso of sub-paragraph (a) which states that "a driver or other person furnished to the named insured with an automobile hired by the named insured shall not be deemed an employee of the named insured."
The law of Pennsylvania is clear that the definition of the term "employee" is to be governed by that given in the policy rather than by any meaning generally accorded it in the law outside of the insurance field. Cipa v. Metropolitan Life Ins. Co., 155 Pa.Super. 339, 38 A.2d 518, aff'd 352 Pa. 298, 42 A.2d 539 (1944). Consequently, the garnishee's reliance on Judge Kraft's Opinion in Jones v. Coldway Rentals, Inc., E.D.Pa., 31 F.R.D. 581, December 17, 1962, is inapposite. While Judge Kraft found that the plaintiff Jones was an employee of Coldway, the court was not at all concerned with the interpretation of the insurance policy which is presently before us.
There is no question that the plaintiff and defendant are not considered employees under the proviso of sub-paragraph (a) of the insurance contract. We must now decide whether this definition carries over to sub-paragraph (c). If it does, the parties will not be deemed employees, and the plaintiff will not be precluded from recovery under the policy.
While it is true that the definition of the term employee is located in sub-paragraph (a) and not within the initial paragraph of section 1, or in sub-paragraph (c), we have come to the conclusion that this definition applies to sub-paragraph (c). It is well settled that insurance contracts are construed strictly against the maker, who selected the phraseology used in the policy, and liberally in favor of the insured. See e.g. Lovering v. Erie Indemnity Co., 412 Pa. 551, 195 A.2d 365 (1963). It seems to us that it would have been easy for the company to have included a clause specifically restricting to sub-paragraph (a) the meaning of the term employee formulated therein if it had meant this ...