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876 F2d 896 Jean Marie Demercer v. Allstate Insurance Company

876 F.2d 896

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Jean Marie DeMERCER, Plaintiff-Appellant,
v.
ALLSTATE INSURANCE COMPANY, Defendant-third-party-plaintiff,
v.
The CONTINENTAL INSURANCE COMPANIES, Third-party-defendant-Appellee.

No. 87-2113.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 4, 1989.
Decided June 2, 1989.

Before GOODWIN, HUG and TANG, Circuit Judges.

1

MEMORANDUM*

2

Jean Marie DeMercer appeals from the declaratory judgment in favor of Continental Insurance Companies. DeMercer argues that the court's finding that the late Rev. Norman Hammer regularly used a 1979 station wagon is clearly erroneous, and that its conclusion that Hammer was not entitled to coverage under a Continental Insurance policy for his use of non-owned vehicles is legally incorrect.

3

We affirm.

BACKGROUND

4

On October 22, 1980, an automobile accident occurred on the "Big Island" of Hawaii. Reverend Norman Hammer, the driver of one of the vehicles, a 1979 station wagon, was killed. Hammer's wife, Virgie, was seriously injured. Robert DeMercer, the driver of the other vehicle, also died leaving appellant as his widow.

5

The late Mr. DeMercer's family filed a wrongful death action against the estate of Norman Hammer and other defendants. A jury found Hammer 95% at fault for the accident and awarded the DeMercers $836,000.00 in damages. Judgment was entered November 23, 1983.

6

On October 24, 1984, Continental filed a complaint for declaratory judgment denying it had any coverage for Hammer's fatal accident. DeMercer appeals from the judgment in favor of Continental on its declaratory complaint.

DISCUSSION

7

The determinative issue is factual: whether the station wagon Hammer drove in the accident was furnished for his regular use. If so, DeMercer's theory of recovery under the "non-owned automobile" provision of the Continental policy fails because such coverage does not extend to regularly used vehicles.

8

A lower court's findings of fact are reviewed under the clearly erroneous standard. Fed.R.Civ.P. 52(a); American Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 227 (9th Cir.1988); Allen v. Steele, 759 F.2d 1469, 1470 (9th Cir.1985) (citing Anderson v. City of Besemer, 470 U.S. 564, 573-74 (1985)). An appellate court must accept the lower court's findings of fact unless upon review the appellate court "is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948); Lacelaw, supra (citing Johnson v. United States Postal Service, 756 F.2d 1461, 1464 (9th Cir.1985)).

9

Both sides agree that Arizona law controls, and therefore we review the finding of Hammer's "regular use" of the station wagon in the context of Arizona law, and the terms of the Continental policy.

10

The Continental policy provides coverage to its insured for accidents while using a "non-owned" automobile.

11

"Non-owned automobile" means an automobile or trailer not owned by or furnished for the regular use of either the named insured or any relative ... (Ex. D-C, P.2)

12

Assuming for the purpose of discussion that the Continental policy fully covered Hammer for his use of a "non-owned automobile", such coverage would depend on whether the station wagon was furnished for his "regular use." If Hammer regularly used the station wagon as the district court found, then the Continental policy does not cover the accident at issue.

13

DeMercer does not challenge the district court's definitions of "regular use" as gleaned from Arizona law. DeMercer challenges the court's application of the definitions to the facts. DeMercer does, however, emphasize the words "fixed or uniform intervals" in the following portion of the Peace v. Allstate Insur. Co.:

14

Since the language in the insurance policies is to be given their normal meaning, we find support in Webster's Third International Dictionary: "Regular: Steady or uniform in course, practice, or occurrence; returning, recurring or received at stated, fixed, or uniform intervals."

15

671 P.2d 931, 935 (Ariz.App.1983).

16

DeMercer would have us focus on whether the use occurred at "stated, fixed, or uniform intervals" to the exclusion of the other parts of the definition of "regular." This we decline to do. Taking the normal meaning of "regular" into account, we are not left with the definite and firm conviction that a mistake has been committed. Hammer, as the president of the corporation that leased the station wagon, had free access to it. In effect, he furnished it to himself for his regular use when he was in Hawaii. We agree with the district court that "any restrictions on the availability of the vehicles was largely self-imposed.

17

DeMercer argues that it is undisputed that the station wagon's purpose was to ferry camp visitors to and from places. However, it is also undisputed that the wagon was used for a variety of tasks.

18

DeMercer further argues that Hammer did not have a set of keys to the station wagon and that camp business had priority in terms of use of the wagon. We do not find this fact controlling. Rev. Hammer had authority to use any of the Retreat vehicles for any purpose. He did not require anyone's permission, although he would check with the camp manager to determine whether plans had been made by someone else to use a particular vehicle. If such plans had been made, Rev. Hammer would drive another vehicle or make other arrangements. However, if Rev. Hammer had chosen to exercise his authority, he could have used a vehicle even though someone else had planned to use it first.

19

DeMercer relies heavily on the camp manager's, Mr. Mumford's, testimony that Hammer drove the station wagon only 4-6 times in the year prior to the accident. The camp manager also testified that at the time of Hammer's death Hammer had no personal vehicle at the camp. But the camp manager also stated that Hammer was his boss, and when asked on cross "So, in that sense all the vehicles at the camp were available for his (Hammer's) regular use, correct?" Mumford answered, "Yes." Moreover, when the court asked Mumford "When you had the station wagon did he (Hammer) use any of the other vehicles?" Mumford answered "I don't recall him using."

20

DeMercer also relies on the in court testimony of Alfred Matsu, husband of the camp's head cook, who only saw Hammer drive the station wagon ten times. However, Matsu also testified that he never saw Hammer drive any of the other camp vehicles, only the station wagon.

21

DeMercer argues that Mumford's and Matsu's testimony about Hammer's minimal use of the station wagon was supported by the deposition testimony of every other witness. However, our review of the in court testimony and the depositions does not leave us with the definite and firm conviction that the court erred in finding that the station wagon was furnished for the regular use of Hammer. The findings regarding the number of Hammer's trips to the Retreat and their duration is likewise not clearly erroneous.

22

Since the Continental policy would not provide coverage to Hammer for the accident if the station wagon was furnished for his regular use, and since the court's finding of regular use is not clearly erroneous, the declaratory judgment in favor of Continental is affirmed. We do not reach the question of whether the policy covered Hammer's use of "non-owned" vehicles in the first place.

23

AFFIRMED.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3