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September 14, 1972

LANDFRIED ET AL., Defendants

Weis, District Judge

The opinion of the court was delivered by: WEIS

The most vigorously contested issue in this declaratory judgment proceeding is whether the word "use" in an automobile liability insurance policy makes the carrier responsible for payment of damages for an incident which occurred within a police car listed in the policy. We hold that under the facts in this case coverage does apply.

 The tragedy which led to this litigation occurred on June 10, 1967 when 12 year old Joseph Landfried was seated in the front seat of a police car owned by the Borough of Leetsdale, a municipality in Allegheny County, Pennsylvania. Though there is some conflict in the testimony as to precisely why the boy was in the automobile, it does seem that he was assisting his father in repairing the radio in the vehicle.

 Joseph noticed a narrow cylindrical object, which he thought to be a new type of flashlight, hanging by a leather strap from one of the knobs on the dashboard of the car. It was in fact a blast-type billy, a combination weapon which could be used as a truncheon or to fire a teargas projectile. While the boy was inspecting the weapon, it discharged a blast of teargas into his eyes causing blindness.

 Joseph's father, Ross Landfried, was a part-time radio repairman and had answered a call earlier in the day from the Leetsdale Police Department to service the unit in the Borough's one and only police car. He and Joseph drove in a pick-up truck to Leetsdale and found the police car parked on the street. Officer Michael Poninsky had been assigned to the patrol car but at that time was on foot engaged in surveillance nearby to apprehend motorists who violated a stop sign.

 The repairman was unable to complete the work to the radio at the scene and advised Poninsky that it would be necessary to take the car to the shop located at the Landfried residence a few miles away. He and Joseph drove away in the car leaving the pick-up truck as transportation for the policeman should it be needed.

 Poninsky, like each of the other officers on the Leetsdale force, had been issued a blast-type billy as a part of his police equipment. Each officer was expected to carry this weapon while on duty and take it home with him after his shift was completed. The billy could be fitted into a loop on the officer's uniform but apparently it was not comfortable in this position while the patrolman was driving a car so that Poninsky generally hung it from one of the hooks on the dashboard. The other officers either placed their billy on top of the dash or on the front seat.

 Attached to the car in the right front seat area was a bracket in which a shotgun was kept. A locking device prevented unauthorized removal. Additionally, extra ammunition for the officer's pistol and the shotgun was carried in the glove compartment. Teargas cannisters and flares were stored in the trunk.

 If Poninsky left the car during his tour of duty, he usually took the billy with him or locked the automobile to prevent anyone from getting possession of the weapon. However, on this particular morning, he had not removed the billy before the repairman drove away and thus the car, together with all of the police equipment, had been taken to the Landfried home where the accident occurred a short time later.

 Suits were later brought in the state court on behalf of the boy against the Borough, Officer Poninsky, and Federal Laboratories, Inc., the manufacturer of the billy, who in turn joined Ross Landfried, the father, as an additional defendant. The litigation was settled for a total of $295,000.00 of which Federal's insurance carrier paid $170,000.00, the plaintiff Ohio Farmers Insurance Company paid its comprehensive liability policy limits of $100,000.00 on behalf of the Borough of Leetsdale and Poninsky, and the Borough agreed to pay the remainder of $25,000.00 from its own funds.

 The defendant, Erie Insurance Exchange, had issued an automobile liability policy to the Borough of Leetsdale which was in effect at the time of the accident. Erie refused to defend the Borough or Poninsky and did not make any payment toward the settlement on the grounds that the accident was not considered as an occurrence coming within the policy obligation to pay for bodily injuries sustained "by any person . . . arising out of the ownership, maintenance or use of the owned automobile."

 The Erie policy is generally in the standard form but the page showing coverage limits shows "use" as "commercial" rather than "business and pleasure". A schedule attached to the policy lists the auto in question as a "Plymouth, 4 Dr. Belvedere (police car)" and also several trucks, street sweepers, fire department equipment, and other vehicles.

 Pennsylvania law governs this case but there is a paucity of decisions on point. However, the state Supreme Court in Manufacturers Casualty Ins. Co. v. Goodville Mut. Casualty Co., 403 Pa. 603, 170 A. 2d 571 (1961) makes it clear that this jurisdiction has adopted a liberal construction of the phraseology in question. The Court said:

"Construed strictly against the insurer, 'arising out of' means causally connected with, not proximately caused by. 'But for' causation, i.e., a cause and result relationship, is enough to satisfy this provision of the policy."

 The opinion also quoted with approval the following language from the case of Suburban Service Bus Co. v. National Mutual Casualty Co., 237 ...

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