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POLYAK v. ISRAELSON

September 14, 1972

POLYAK, Plaintiff,
v.
ISRAELSON ET AL., Defendants


Weis, District Judge


The opinion of the court was delivered by: WEIS

Plaintiff, Mary Alice Polyak, has been awarded a judgment of $40,000.00 against James Israelson as a result of injuries received on February 17, 1967 when the car she was driving went off the road and overturned. The vehicle involved was owned by the Hartford Life Insurance Company and had been given to Israelson, one of its sales representatives, for both business and personal use.

 On the day of the accident, Miss Polyak and Israelson, her fiance at the time, were en route from their residences in Pittsburgh, Pennsylvania to Columbus, Ohio on a combination business and pleasure trip. Israelson drove from Pittsburgh but, after making a stop near Youngstown, Ohio, he became fatigued and asked that the plaintiff take over the operation of the car.

 A short time later, while Miss Polyak was driving, Israelson distracted her attention by a show of affection, causing the plaintiff to look away from the road. The car wheels dropped off onto the berm, the vehicle went out of control, and the accident occurred.

 The liability policy provided that the word "insured" would apply to "(C) any other person while using an owned automobile . . . with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission . . ."

 It is clear that Israelson did come within the guide lines of the omnibus clause because whether the trip was for personal reasons or to further the business of his employer (the named insured), use of the automobile was sanctioned. *fn1"

 It is well established under Pennsylvania law that "use" in connection with the omnibus clause of the auto policy is broader in scope than "operation". In Maryland Cas. Co. v. Marshbank, 226 F.2d 637, 639 (3rd Cir. 1955), the Court of Appeals said:

 
"For the 'use' of an automobile by an individual involves its employment for some purpose or object of the user while its 'operation' by him involves his direction and control of its mechanism as its driver for the purpose of propelling it as a vehicle. It is perfectly clear that an automobile is being used by an individual who is traveling in it regardless of whether it is being operated by him or by another."

 In the fact situation of this case, Israelson's "actual use" of the car was to transport himself and Miss Polyak to Columbus, Ohio and this activity was within the permission granted by the Life Insurance Company. *fn2"

 The garnishee appears to feel that it was necessary for the owner to specifically authorize Miss Polyak's operation of the car. No language in the policy supports that contention nor is the issue in this case whether coverage is extended to the plaintiff. The inquiry is directed rather at determining if the policy covered Israelson.

 The garnishee does not concede the day at this point, however, but raises another hurdle, contending that the general insuring clause precludes liability for payment of the judgment.

 The pertinent policy provision reads:

 
"The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury . . . caused by an occurrence and ...

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