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Klotz v. Selected Risks Insurance Co.

Decided: February 28, 1969.

EMMA KLOTZ, EXECUTRIX OF THE ESTATE OF CHARLES H. KLOTZ, SR., DECEASED, PLAINTIFF-RESPONDENT,
v.
SELECTED RISKS INSURANCE COMPANY, DEFENDANT-APPELLANT



Conford, Kilkenny and Leonard. The opinion of the court was delivered by Leonard, J.A.D.

Leonard

Defendant, with leave first granted, appeals from a denial of its motion for summary judgment.

On September 22, 1966 defendant issued an "automobile personal accident policy" of insurance to plaintiff's decedent, Charles H. Klotz. The premium was $10 per year and the principal sum payable in the event of death was $7,500. The pertinent portions of the policy follow:

"'INJURY' whenever used in this policy means Bodily injury caused by an accident occurring while this policy is in force as to the Covered Person whose injury is the basis of claim and resulting directly and independently of all other causes as follows:

A. While driving or riding in a private passenger automobile; or

B. While riding as a passenger in a public passenger automobile; or

D. By being struck or run down by an automobile."

"EXCLUSIONS"

"This insurance shall not apply to any loss caused or contributed to by * * * (8) driving or operating an automobile for compensation or hire, (9) operating, driving, riding in any vehicle except a four-wheel automobile of the private passenger type."

On May 18, 1967, while the policy was in full force and effect, plaintiff's decedent in the course of his employment was operating a Ford truck owned by his employer. He was involved in a collision with a tractor trailer that struck his vehicle in attempting to pass it. By reason thereof decedent's truck left the highway and plunged into a creek in an overturned position. Decedent drowned.

Plaintiff, decedent's executrix, instituted suit for total benefits due under the policy, i.e., $7,500. Each party moved for summary judgment. The trial court, in denying both motions, found that (1) decedent was admittedly not driving or riding in a private passenger automobile of the pleasure-car type and was therefore, not entitled to insurance coverage under the provisions of clause A of the policy, (2) the word "automobile" in clause D is used generically and includes the truck which collided with decedent's; (3) since the policy does not define what is meant in clause D by "being

struck or run down," and since it does not explicitly delimit the coverage to pedestrians, this clause should not be so construed; (4) clause D covers a situation where the insured, while sitting or riding in a truck, is struck or run down by a negligently operated or runaway vehicle through no fault of his own, and (5) the exclusionary clause excludes only losses "caused or contributed to" by the insured, even though at the time of the accident he is operating, driving or riding in a vehicle not of the passenger type. Based upon these ...


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