{ "id": 8524739, "name": "LUMBERMENS MUTUAL CASUALTY COMPANY v. PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY", "name_abbreviation": "Lumbermens Mutual Casualty Co. v. Pennsylvania National Mutual Casualty Insurance", "decision_date": "1984-10-16", "docket_number": "No. 8318SC1304", "first_page": "742", "last_page": "747", "citations": [ { "type": "official", "cite": "70 N.C. App. 742" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "271 S.E. 2d 407", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "408" } ], "opinion_index": 0 }, { "cite": "49 N.C. App. 329", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521191 ], "year": 1980, "pin_cites": [ { "page": "331" } ], "opinion_index": 0, "case_paths": [ "/nc-app/49/0329-01" ] }, { "cite": "314 N.E. 2d 37", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "pin_cites": [ { "page": "39" } ], "opinion_index": 0 }, { "cite": "357 N.Y.S. 2d 705", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1974, "pin_cites": [ { "page": "708" } ], "opinion_index": 0 }, { "cite": "34 N.Y. 2d 356", "category": "reporters:state", "reporter": "N.Y.2d", "case_ids": [ 2311796 ], "year": 1974, "pin_cites": [ { "page": "361" } ], "opinion_index": 0, "case_paths": [ "/ny-2d/34/0356-01" ] }, { "cite": "263 Minn. 537", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 361652 ], "weight": 2, "year": 1962, "pin_cites": [ { "parenthetical": "driver within coverage when returning demonstrator to garage after having taken insured to airport, even though such service was of a temporary duration and uncompensated" }, { "parenthetical": "driver within coverage when returning demonstrator to garage after having taken insured to airport, even though such service was of a temporary duration and uncompensated" } ], "opinion_index": 0, "case_paths": [ "/minn/263/0537-01" ] }, { "cite": "59 A.D. 2d 1052", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 3038612, 3061300, 3046709 ], "year": 1977, "pin_cites": [ { "parenthetical": "insured's sale or gift of a steel drum to a third party who brought suit for injuries sustained when cutting through the drum held part of garage operations necessary or incidental to the garage itself" } ], "opinion_index": 0, "case_paths": [ "/ad2d/59/1052-02", "/ad2d/59/1052-01", "/ad2d/59/1052-03" ] }, { "cite": "399 N.Y.S. 2d 811", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1977, "pin_cites": [ { "parenthetical": "insured's sale or gift of a steel drum to a third party who brought suit for injuries sustained when cutting through the drum held part of garage operations necessary or incidental to the garage itself" } ], "opinion_index": 0 }, { "cite": "162 A. 573", "category": "reporters:state_regional", "reporter": "A.", "year": 1932, "pin_cites": [ { "parenthetical": "transportation of wedding parties not an incidental part of funeral business" } ], "opinion_index": 0 }, { "cite": "128 F. 2d 864", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10729793 ], "year": 1942, "pin_cites": [ { "parenthetical": "use of premises for unrelated commercial advertising not an activity incidental to operation of a filling station" } ], "opinion_index": 0, "case_paths": [ "/f2d/128/0864-01" ] }, { "cite": "206 Misc. 499", "category": "reporters:state", "reporter": "Misc.", "case_ids": [ 983695 ], "year": 1954, "pin_cites": [ { "parenthetical": "sale of Christmas trees not incidental to operation of a parking lot" } ], "opinion_index": 0, "case_paths": [ "/misc/206/0499-01" ] }, { "cite": "134 N.Y.S. 2d 242", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1954, "pin_cites": [ { "parenthetical": "sale of Christmas trees not incidental to operation of a parking lot" } ], "opinion_index": 0 }, { "cite": "107 S.E. 2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1959, "pin_cites": [ { "page": "139", "parenthetical": "held plaintiffs mercantile business not incidental to business of repairing, servicing and storing automobiles protected by policy" }, { "page": "139" } ], "opinion_index": 0 }, { "cite": "249 N.C. 580", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619355 ], "weight": 3, "year": 1959, "pin_cites": [ { "page": "583" }, { "page": "584" } ], "opinion_index": 0, "case_paths": [ "/nc/249/0580-01" ] }, { "cite": "280 S.E. 2d 907", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "908" } ], "opinion_index": 0 }, { "cite": "303 N.C. 648", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575090 ], "year": 1981, "pin_cites": [ { "page": "650" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0648-01" ] }, { "cite": "172 S.E. 2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1970, "pin_cites": [ { "page": "522" }, { "page": "522" }, { "page": "522" } ], "opinion_index": 0 }, { "cite": "276 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561396 ], "weight": 3, "year": 1970, "pin_cites": [ { "page": "354" }, { "page": "354" }, { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0348-01" ] } ], "analysis": { "cardinality": 599, "char_count": 9972, "ocr_confidence": 0.816, "pagerank": { "raw": 1.1002639071164805e-07, "percentile": 0.5681570624387754 }, "sha256": "a564a4d38301ae5ca385e325913ebf7dc30cabbd87d473b540e9c226f11f3c97", "simhash": "1:2126c4f236343070", "word_count": 1630 }, "last_updated": "2023-07-14T18:14:59.534868+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge VAUGHN and Judge JOHNSON concur." ], "parties": [ "LUMBERMENS MUTUAL CASUALTY COMPANY v. PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY" ], "opinions": [ { "text": "WHICHARD, Judge.\nDefendant raises two questions: whether summary judgment was properly granted for plaintiff, and whether the court abused its discretion in denying defendant\u2019s motion to continue. We affirm.\nI.\nPlaintiff and defendant agree on the terms of defendant\u2019s policy and on the facts giving rise to this case. The issue is whether defendant\u2019s policy provides coverage for defendant\u2019s insured under the undisputed facts. These facts are as follows:\nDefendant\u2019s insured is a service station owner, insured by defendant under a garage liability policy which provides coverage for bodily injury sustained in connection with garage operations. Plaintiffs insured owned tractor-trucks insured by plaintiff under an automobile liability policy which also provides coverage for personal injury claims.\nPlaintiffs insured brought three of his tractor-trucks to the garage of defendant\u2019s insured for routine servicing. When plaintiffs insured returned to pick up the trucks, one of them failed to start. He asked defendant\u2019s insured to help him fire the cold diesel engine of the stalled truck. As a favor and at no extra charge, defendant\u2019s insured drove the truck while plaintiffs insured towed it along the adjacent highway. When the stalled truck fired, the two trucks stopped in the road. Defendant\u2019s insured remained at the wheel while the air brakes on the truck that had been stalled pressurized. At the same time employees of plaintiffs insured began to disconnect the towline. When defendant\u2019s insured determined that the brakes were pressurized, he began to pull the truck off the road. In so doing he struck and injured an employee of plaintiffs insured.\nThe employee brought negligence actions against the owner of the truck, plaintiffs insured, and against the driver, defendant\u2019s insured. Defendant denied coverage and declined to defend its insured. Both policies contain identical \u201cOther Insurance\u201d clauses. It is not disputed that if defendant\u2019s policy provides coverage defendant is liable to plaintiff in the amount of the judgment.\nII.\nBy its terms defendant\u2019s policy provides coverage for bodily damage \u201ccaused by an occurrence and arising out of garage operations.\u201d Garage operations are defined as \u201cthe ownership, maintenance or use of the premises for the purposes of a garage and all operations necessary or incidental thereto.\u201d\nThe question refined, therefore, is whether defendant\u2019s insured, while driving the truck at the request of plaintiffs insured for the purpose of assisting plaintiffs insured to start the truck, was engaged in an operation \u201cincidental\u201d to the operation of his service station. This is a question of \u201cthe meaning of the language used in [defendant\u2019s] policy of insurance[.]\u201d Trust Co. v. Insurance Co., 276 N.C. 348, 354, 172 S.E. 2d 518, 522 (1970). It is therefore a question of law. Id.\nWhile some courts are reluctant to apply the rule of liberal construction to suits between insurers, see 13 Appleman, Insurance Law and Practice \u00a7 7482, at 566 (1981), as a rule any ambiguity in an insurance policy is liberally construed against the insurer. Trust Co. v. Insurance Co., 276 N.C. at 354, 172 S.E. 2d at 522. The mere fact, however, that each of two parties interprets the term \u201cincidental\u201d to its own advantage does not establish that the term is uncertain or ambiguous. No ambiguity exists unless, \u201cin the opinion of the court, the language of the policy is fairly and reasonably susceptible to either of the constructions asserted by the parties.\u201d Maddox v. Insurance Co., 303 N.C. 648, 650, 280 S.E. 2d 907, 908 (1981).\nWe are satisfied that the term \u201cincidental,\u201d as applied to the undisputed facts here, is not ambiguous. It is a nontechnical word and, unless the context requires otherwise, must be given a meaning consistent with its use in ordinary speech. Trust Co. v. Insurance Co., 276 N.C. at 354, 172 S.E. 2d at 522; Peirson v. Insurance Co., 249 N.C. 580, 107 S.E. 2d 137 (1959). In ordinary speech, incidental means subordinate, nonessential, occurring merely by chance or without intention or calculation, or being likely to ensue as a chance or minor circumstance. Webster\u2019s Third International Dictionary (1968).\n\u201cCourts have frequently been called upon to interpret the word \u2018incidental.\u2019 \u201d Peirson v. Insurance Co., 249 N.C. at 583, 107 S.E. 2d at 139 (held plaintiffs mercantile business not incidental to business of repairing, servicing and storing automobiles protected by policy). \u201cOrdinarily, that which is incidental can only be determined from the facts and circumstances of each case. Thus, a question of fact will be presented for determination of the trier of the facts in most cases.\u201d Long, 2 Law of Liability Insurance \u00a7 7.06, at 7-8 (1984). This case, as stated, however, does not present a factual dispute. While defendant contends that the two affidavits of its insured raise issues of material fact, we find that contention without merit. The affidavits differ merely in wealth of detail.\nIII.\nCases finding no coverage under the policy term in question are distinguishable from this one on their facts. In Peirson v. Insurance Co., 249 N.C. at 584, 107 S.E. 2d at 139, our Supreme Court distinguished \u201csomething [that is] incidental to the main purpose\u201d from something that is not, by citing the following cases: Spiegel v. Felton, 134 N.Y.S. 2d 242, 206 Misc. 499 (1954) (sale of Christmas trees not incidental to operation of a parking lot); Boh v. Pan American Petroleum Corp., 128 F. 2d 864 (5th Cir. 1942) (use of premises for unrelated commercial advertising not an activity incidental to operation of a filling station); Heritier v. Century Indemnity Co., 162 A. 573 (N.J. 1932) (transportation of wedding parties not an incidental part of funeral business).\nThe accident here, by contrast, was clearly a natural consequence of the operation of a service station. It is patently unreasonable to expect that a service station owner would not help a customer start a vehicle the owner has just serviced. That the owner renders the aid voluntarily, to obtain or maintain good will, and for no extra charge, does not remove the act from the range of coverage. See, e.g., Calkins v. Merchants Mutl. Ins. Co., 399 N.Y.S. 2d 811, 59 A.D. 2d 1052 (1977) (insured\u2019s sale or gift of a steel drum to a third party who brought suit for injuries sustained when cutting through the drum held part of garage operations necessary or incidental to the garage itself); Lowry v. Kneeland, 263 Minn. 537, 117 N.W. 2d 207 (1962) (driver within coverage when returning demonstrator to garage after having taken insured to airport, even though such service was of a temporary duration and uncompensated).\nWe hold that the court ruled correctly that an accident on a highway, when a stalled truck is being started- by a garage owner after he has serviced it, is as a matter of law an operation incidental to the use of the premises as a garage. The language of the policy, as applied to the undisputed facts, is not reasonably susceptible to any other construction. As stated in Lipton, Inc. v. Liberty Mut. Ins. Co., 34 N.Y. 2d 356, 361, 357 N.Y.S. 2d 705, 708, 314 N.E. 2d 37, 39 (1974): \u201cWe cannot think that, given the economic and factual setting in which [this policy was] written, an ordinary businessman in applying for insurance and reading the language of [this policy] when submitted, would not have thought himself covered against precisely the damage claims now asserted\nIV.\nDefendant contends the court erred in denying its motion to continue. The granting of a continuance is within the discretion of the trial court and absent a manifest abuse of discretion its ruling is not reviewable on appeal. Tripp v. Pate, 49 N.C. App. 329, 331, 271 S.E. 2d 407, 408 (1980). In denying defendant\u2019s motion, the court noted that: the case had been pending for eighteen months; the motion for summary judgment had been on file for five months; and defendant was represented by a firm of six attorneys, any of whom, including present counsel, were capable of mastering the case file. Under these circumstances we find no abuse of discretion in the denial of the motion.\nAffirmed.\nChief Judge VAUGHN and Judge JOHNSON concur.", "type": "majority", "author": "WHICHARD, Judge." } ], "attorneys": [ "Tuggle, Duggins, Meschan & Elrod, P.A., by J. Reed Johnston, Jr., for plaintiff appellee.", "Henson, Henson & Bayliss, by Perry C. Henson and Jack B. Bay lis s, Jr., for defendant appellant." ], "corrections": "", "head_matter": "LUMBERMENS MUTUAL CASUALTY COMPANY v. PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY\nNo. 8318SC1304\n(Filed 16 October 1984)\n1. Insurance 8 88\u2014 garage owner \u2014 helping start customer\u2019s vehicle \u2014 garage liability policy\nWhere a truck was being driven on the highway by a service station-garage owner after he had serviced it for the purpose of assisting the customer to start the truck, the garage owner was engaged as a matter of law in an operation incidental to the use of the premises as a garage, and an accident which occurred while the garage owner was so driving the truck was covered by the owner\u2019s garage liability policy.\n2. Trial \u00a7 3.1\u2014 denial of continuance\nThe trial court did not abuse its discretion in denying defendant\u2019s motion to continue a hearing on a summary judgment motion where the court noted that the case had been pending for eighteen months, the motion for summary judgment had been on file for five months, and defendant was represented by a firm of six attorneys, any of whom were capable of mastering the case file.\nAppeal by defendant from Wood, Judge. Judgment entered 9 September 1983, nunc pro tunc 1 September 1983, in Superior Court, GUILFORD County. Heard in the Court of Appeals 26 September 1984.\nPlaintiff sued for contribution toward amounts spent in investigating, defending and settling a personal injury claim against defendant\u2019s insured. Defendant denied that its garage liability policy afforded coverage to its insured. The trial court entered summary judgment for plaintiff in the amount of $21,145.06.\nDefendant appeals.\nTuggle, Duggins, Meschan & Elrod, P.A., by J. Reed Johnston, Jr., for plaintiff appellee.\nHenson, Henson & Bayliss, by Perry C. Henson and Jack B. Bay lis s, Jr., for defendant appellant." }, "file_name": "0742-01", "first_page_order": 774, "last_page_order": 779 }