{ "id": 1573063, "name": "The HERTZ CORPORATION, Plaintiff-Appellee, and Nancy Bradshaw, Plaintiff in Intervention-Appellee, v. Tilman H. ASHBAUGH, Defendant and Third Party Plaintiff-Appellee, v. FOUNDATION RESERVE INSURANCE CO., INC., Third Party Defendant-Appellant", "name_abbreviation": "Hertz Corp. v. Ashbaugh", "decision_date": "1980-02-05", "docket_number": "No. 3987", "first_page": "155", "last_page": "161", "citations": [ { "type": "official", "cite": "94 N.M. 155" }, { "type": "parallel", "cite": "607 P.2d 1173" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "85 N.M. 697", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2769574 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/85/0697-01" ] }, { "cite": "228 N.W.2d 779", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1975, "opinion_index": 0 }, { "cite": "394 Mich. 96", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1938413 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/mich/394/0096-01" ] }, { "cite": "137 F.Supp. 520", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4265252 ], "opinion_index": 0, "case_paths": [ "/f-supp/137/0520-01" ] }, { "cite": "72 S.E.2d 520", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "opinion_index": 0 }, { "cite": "137 W.Va. 455", "category": "reporters:state", "reporter": "W. Va.", "case_ids": [ 8582768 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/w-va/137/0455-01" ] }, { "cite": "138 S.E.2d 463", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "110 Ga.App. 297", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 1609779 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/ga-app/110/0297-01" ] }, { "cite": "269 Minn. 445", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 344044 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/minn/269/0445-01" ] }, { "cite": "263 F.Supp. 570", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 1523494 ], "opinion_index": 0, "case_paths": [ "/f-supp/263/0570-01" ] }, { "cite": "84 N.M. 211", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2766687 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/nm/84/0211-01" ] }, { "cite": "91 N.M. 667", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571069 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/nm/91/0667-01" ] }, { "cite": "90 N.M. 620", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2867077 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/90/0620-01" ] }, { "cite": "91 N.M. 705", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571169 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/91/0705-01" ] }, { "cite": "90 N.M. 369", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2871870 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/90/0369-01" ] }, { "cite": "388 F.2d 528", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2094167 ], "year": 1968, "opinion_index": 1, "case_paths": [ "/f2d/388/0528-01" ] }, { "cite": "85 N.M. 374", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2776413 ], "weight": 2, "year": 1973, "opinion_index": 1, "case_paths": [ "/nm/85/0374-01" ] }, { "cite": "83 N.M. 242", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5333251 ], "weight": 2, "year": 1971, "opinion_index": 1, "case_paths": [ "/nm/83/0242-01" ] }, { "cite": "81 N.M. 225", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5369902 ], "weight": 2, "year": 1970, "opinion_index": 1, "case_paths": [ "/nm/81/0225-01" ] }, { "cite": "79 N.M. 785", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2742069 ], "weight": 2, "year": 1969, "opinion_index": 1, "case_paths": [ "/nm/79/0785-01" ] }, { "cite": "79 N.M. 737", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2744227 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/79/0737-01" ] }, { "cite": "79 N.M. 382", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2739995 ], "weight": 2, "year": 1968, "opinion_index": 1, "case_paths": [ "/nm/79/0382-01" ] }, { "cite": "78 N.M. 359", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326183 ], "weight": 2, "year": 1967, "opinion_index": 1, "case_paths": [ "/nm/78/0359-01" ] }, { "cite": "77 N.M. 671", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2804135 ], "weight": 2, "year": 1967, "pin_cites": [ { "parenthetical": "both seeking to deny coverage" }, { "parenthetical": "both seeking to deny coverage" } ], "opinion_index": 1, "case_paths": [ "/nm/77/0671-01" ] }, { "cite": "77 N.M. 661", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2809804 ], "weight": 2, "year": 1967, "opinion_index": 1, "case_paths": [ "/nm/77/0661-01" ] }, { "cite": "77 N.M. 207", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2807099 ], "weight": 2, "year": 1966, "opinion_index": 1, "case_paths": [ "/nm/77/0207-01" ] }, { "cite": "77 N.M. 118", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2807299 ], "weight": 2, "year": 1966, "pin_cites": [ { "parenthetical": "unfair position taken on \"being struck by automobile\"" }, { "parenthetical": "unfair position taken on \"being struck by automobile\"" } ], "opinion_index": 1, "case_paths": [ "/nm/77/0118-01" ] }, { "cite": "76 N.M. 334", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8502115 ], "weight": 2, "year": 1966, "pin_cites": [ { "parenthetical": "an unfair restriction" }, { "parenthetical": "an unfair restriction" } ], "opinion_index": 1, "case_paths": [ "/nm/76/0334-01" ] }, { "cite": "75 N.M. 592", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5378055 ], "weight": 2, "year": 1965, "opinion_index": 1, "case_paths": [ "/nm/75/0592-01" ] }, { "cite": "71 N.M. 271", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5349792 ], "weight": 2, "year": 1962, "opinion_index": 1, "case_paths": [ "/nm/71/0271-01" ] }, { "cite": "368 N.E.2d 1310", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 1 }, { "cite": "11 Ill.Dec. 564", "category": "reporters:state", "reporter": "Ill. Dec.", "year": 1977, "opinion_index": 1 }, { "cite": "53 Ill.App.3d 826", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3393564 ], "year": 1977, "opinion_index": 1, "case_paths": [ "/ill-app-3d/53/0826-01" ] } ], "analysis": { "cardinality": 858, "char_count": 19823, "ocr_confidence": 0.831, "pagerank": { "raw": 1.0681217820040872e-07, "percentile": 0.5590777686266651 }, "sha256": "dc4dc27617dd2a588d965c801c00bbbdc7016d4efd986d764ae0fb42b94f0b62", "simhash": "1:e826b03f43386c9f", "word_count": 3171 }, "last_updated": "2023-07-14T18:18:16.712923+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WOOD, C. J., concurs.", "SUTIN, J. (specially concurring)." ], "parties": [ "The HERTZ CORPORATION, Plaintiff-Appellee, and Nancy Bradshaw, Plaintiff in Intervention-Appellee, v. Tilman H. ASHBAUGH, Defendant and Third Party Plaintiff-Appellee, v. FOUNDATION RESERVE INSURANCE CO., INC., Third Party Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWALTERS, Judge.\nThe trial court, sitting without a jury, found that Foundation Reserve Insurance Company issued a liability insurance policy to \u201cTilman H. Ashbaugh dba Corky\u2019s Wrecker Service\u201d which covered a temporary substitute automobile owned by Til-man H. Ashbaugh individually. Ashbaugh, while on business for the Wrecker Service and while driving the substitute automobile because one of the company\u2019s wreckers was inoperative, was involved in an accident. The court concluded that Foundation Reserve was required under the company policy to afford protection, defense and coverage in connection with Hertz and Bradshaw\u2019s suit against Ashbaugh. Foundation argues on appeal that Ashbaugh\u2019s vehicle does not qualify as a substitute vehicle and the court was in error in imposing coverage.\nWe note at the outset that the rules of appellate review require us to sustain the court\u2019s findings and conclusions if supported by the evidence. Montoya v. Travelers Ins. Co., 91 N.M. 667, 579 P.2d 793 (1978).\nThe provisions of the policy which Foundation says relieve it of coverage and which are embodied in Foundation\u2019s Requested Findings 12 and 13, are as follows:\n12. That in the provisions of policy number E 602 32, under section B(b) defining \u201cinsured motor vehicle\u201d, the following language appears:\n\u201cInsured motor vehicle\u201d means a motor vehicle: (2) while temporarily used as a substitute for an insured motor vehicle as described in subparagraph (1) above, when withdrawn from normal use because of its breakdown, repair, service, loss or destruction; * * * but the term \u201cinsured motor vehicle\u201d shall not include: * * * (iii) under subparagraph (2) and (3) above, a motor vehicle owned by the named insured or by any resident of the same household as such insured; * * *\n13. That under section IV of policy number E 602 32, \u201ctemporary substitute automobile\u201d is defined as follows:\n(3) Temporary substitute automobile-under coverages A, B and division 1 of coverage C, an automobile not owned by the named insured or his spouse or any resident of the same household, while temporarily used as a substitute for the described automobile when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction;\n* * * * * *\nThe trial court made the following findings with respect to those provisions:\n5. Under paragraph IV(a)(3) of such policy, the \u201cnamed insured\u201d was permitted to use a \u201ctemporary substitute\u201d vehicle when either of the \u201cdescribed\u201d vehicles was withdrawn from normal use due to breakdown.\n6. At the time of his purchase of such policy, Ashbaugh was informed by the general agent for Foundation Reserve that the policy would \u201ccover\u201d any vehicle temporarily used by Ashbaugh in connection with his business in the event of breakdown of a \u201cdescribed\u201d vehicle (i. e., a vehicle \u201cdescribed\u201d in the policy\u2019s declarations).\n7. At the time policy went into effect, Foundation Reserve was aware that Ashbaugh was doing business as \u201cCorky\u2019s Wrecker Service\u201d, and Foundation Reserve intended to insure such business, and not the personal vehicles of Ashbaugh. In this regard, Foundation Reserve expressly limited and restricted the use of the \u201ccommercial vehicles in such Policy\u201d to a radius of fifty miles of Santa Fe, New Mexico. An additional intention of both Ashbaugh and Foundation Reserve in the purchase and issuance of the policy was to enable Ashbaugh\u2019s business to comply with the insurance requirements of the New Mexico State Corporation Commission.\n8. On August 25, 1976, Ashbaugh was required, in connection with his business as Corky\u2019s Wrecker Service, to utilize a vehicle in the conduct of such business. He discovered that one of the \u201cdescribed\u201d vehicles was broken down and would not start, and that the other \u201cdescribed\u201d vehicle was on duty, away from his place of business.\n9. Upon discovering that he could use neither \u201cdescribed\u201d vehicle, Ashbaugh elected to drive another vehicle, a truck which he had purchased in his own name for resale. The \u201cdescribed\u201d vehicles had been purchased and were titled in the name of \u201cTilman H. Ashbaugh dba Corky\u2019s Wrecker Service.\u201d\nand the following conclusions:\n4.The \u201cnamed insured\u201d under the Foundation Reserve policy in question was \u201cTilman H. Ashbaugh dba Corky\u2019s Wrecker Service\u201d and not Tilman H. Ashbaugh individually.\n5. \u201cTilman H. Ashbaugh dba Corky\u2019s Wrecker Service\u201d is not the same entity, for purposes of construction and application of the policy, as Tilman H. Ashbaugh individually. The parties to the policy intended to and did insure the business known as Corky\u2019s Wrecker Service, in the operation of its wrecker vehicles, and did not intend nor did such insurance cover the personal driving or activities of Ashbaugh.\n6. Tilman H. Ashbaugh, individually, was not the \u201cnamed insured\u201d under the policy, and any vehicle owned by Ashbaugh individually was not a vehicle owned by Tilman H. Ashbaugh dba Corky\u2019s Wrecker Service, for purposes of application and construction of the insurance policy.\n7. The use by Ashbaugh of his privately-owned vehicle not described in the policy, in connection with business purposes of Corky\u2019s Wrecker Service, was a use contemplated and insured under paragraph IV(a)(3) of such policy and not excluded by paragraph V(d)(3) or any other exclusionary provision of the policy.\n8. In any event, the policy was reformed by the express representations of Foundation Reserve\u2019s general agent that \u201cany vehicle\u201d could be utilized as a temporary substitute vehicle in connection with a breakdown of a \u201cdescribed\u201d vehicle, upon which representation and understanding Ashbaugh relied to his detriment. Foundation Reserve is estopped, under these circumstances, from assuming a contrary position and denying coverage to Ashbaugh.\n9. The accident of August 25, 1976, occurred while Tilman H. Ashbaugh was doing business as Corky\u2019s Wrecker Service, and while Ashbaugh was operating a temporary substitute vehicle not owned or otherwise used by or in connection with such business entity.\nWe do not consider Finding 6 and Conclusion 8 further because there is no evidence that a general agent made any representations to Ashbaugh. See Pribble v. Aetna Life Insurance Company, 84 N.M. 211, 501 P.2d 255 (1972). The other findings, quoted above, are supported by substantial evidence.\nThe resolution of this appeal rests principally upon the meaning of \u201cnamed insured\u201d as used in Sections B(b) iii quoted in Foundation\u2019s Requested Instruction 12, and Section IV(3) as quoted in its Requested Instruction 13. This phrase, insofar as concerns a solely-owned business, has not previously been construed in New Mexico. Appellant cites several cases which hold that one who takes an insurance policy in a business or trade name is the same entity as he is as an individual, and thus he is a \u201cnamed insured\u201d for purposes of excluding substitute automobile coverage when he uses another vehicle not used in his business but owned by himself or a relative residing in his household. See, e. g., Kelly v. Craig, 263 F.Supp. 570 (W.D.Mo.1967); Gabrelcik v. National Indem. Co., 269 Minn. 445, 131 N.W.2d 534 (1964). In Samples v. Georgia Mut. Ins. Co., 110 Ga.App. 297, 138 S.E.2d 463 (1964), a factual situation converse to that now before us, it was held that an automobile owned in the trade name of plaintiff\u2019s husband\u2019s business was not an automobile \u201cnot owned by the named insured [plaintiff] or his spouse,\u201d and therefore was not a substitute automobile under her policy.\nThe case cited to us by appellee is not on point and, consequently, of no assistance. However, some jurisdictions have refused to extend the meaning of \u201cnamed insured\u201d beyond the precise person or entity named. Thus, in Farley v. Amercian Auto. Ins. Co., 137 W.Va. 455, 72 S.E.2d 520 (1952), where the insurance policy was issued to \u201cEarl Farley and Harry Wallace\u201d and covered a specific Ford truck, it was held that another truck owned by Wallace and driven by Farley was not owned by the named insured, and was therefore a substitute automobile, because the \u201cnamed insured\u201d was Farley and Wallace and Farley and Wallace, together, did not own the truck driven by Farley at the time of the accident.\nIn a case where the facts of use were just the opposite of those here, that is, an individual using as a substitute automobile one owned by a business partnership of which he was a member, it was held that the policy issued to him as an individual and insuring his personally owned vehicle covered the partnership vehicle when used as a substitute, because the substitute vehicle was one owned by a partnership and not by the \u201cnamed insured,\u201d an individual. St. Paul-Mercury Ind. Co., v. Heflin, 137 F.Supp. 520 (W.D.Ark.1956).\nIt is not unreasonable to construe \u201cnamed insured\u201d to mean Corky\u2019s Wrecker Service only, and not to include Tilman H. Ashbaugh individually. We feel as the Michigan court did in Sentry Security Systems, Inc. v. Detroit Auto. Inter-Ins. Exch., 394 Mich. 96, 228 N.W.2d 779 (1975), that the language of Foundation\u2019s policy obviously was \u201cnot designed to be used to insure a business\u201d but, nevertheless, that is what the company \u201csurely did.\u201d\nFinding 7 is to the effect that Foundation Reserve intended to insure Ashbaugh\u2019s business of providing wrecker service and intended that the policy enable Ashbaugh to meet the insurance requirements of the State Corporation Commission. Those requirements, under \u00a7 65-2-52, N.M. S.A.1978, included a requirement of liability insurance to cover \u201cnegligent operation\u201d in Ashbaugh\u2019s wrecker service business. This finding supports Conclusions 4, 5, 6 and 7, quoted above. The meaning of \u201cnamed insured\u201d was ambiguous; the trial court could properly construe the policy to give effect to the intent of the parties. Cain v. National Old Line Insurance Company, 85 N.M. 697, 516 P.2d 668 (1973). The intent being dispositive of this appeal, we need not choose between the conflicting approaches identified above.\nThe judgment is affirmed.\nWOOD, C. J., concurs.\nSUTIN, J. (specially concurring).", "type": "majority", "author": "WALTERS, Judge." }, { "text": "SUTIN, Judge\n(specially concurring).\nI specially concur.\nFoundation Reserve says:\n[T]he only issue before this Court is an issue of law, namely, whether the 1972 Ford pick-up, not described under the policy, but owned by Ashbaugh, was a \u201cnon-owned\u201d vehicle because of the policy having been issued to Ashbaugh in the name of \u201cTilman H. Ashbaugh, d/b/a Corky\u2019s Wrecker Service.\u201d * * *\nThe 1972 Ford was not a pick-up. It was a half-ton truck with a flat bed.\nThe answer to the issue is: The 1972 Ford half-ton pick-up was a \u201cnon-owned\u201d vehicle because Foundation Reserve foisted upon \u201cCorky\u2019s Wrecker Service\u201d a \u201cBasic Automobile Policy\u201d instead of a \u201cBasic Commercial policy.\u201d\n\u201cCorky\u2019s Wrecker Service\u201d was a commercial enterprise. The insurance policy insured two trucks described as 1973 and 1963 Dodge Wreckers with Holmes Wrecker Equipment installed on them to perform the services necessary in the wrecker business. Nonetheless, Foundation Reserve issued a policy that falls within what is commonly entitled \u201cFamily Automobile Policy.\u201d Such a policy does not include a flat bed truck. Weed v. Ohio Farmers Ins. Co., 53 Ill.App.3d 826, 11 Ill.Dec. 564, 368 N.E.2d 1310 (1977).\nUnder paragraph B. Definitions (Coverage J)\n(a) \u201cInsured\u201d means:\n(1) the named insured as stated in the policy and, while residents of the same household, the spouse of any such named insured and relatives of either;\n******\n(b) \u201cInsured Motor Vehicle\u201d means a motor vehicle;\n******\n(2) while temporarily used as a substitute for an insured motor vehicle as described in subparagraph (1) above, when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction;\n******\nbut the term \u201cInsured Motor Vehicle\u201d shall not include:\n******\n(iii) under subparagraph (2) * * * above, a motor vehicle owned by the named insured or by any resident of the same household as such insured; * * * [All emphasis added.]\nAgain, hidden far down the long provisions of the policy in small letters with innumerable paragraphs of language difficult to read and understand, we find:\nIV OTHER DEFINITIONS.\n(a) Automobile. Except with respect to division 2 of the coverage C and except where stated to the contrary, the word \u201cautomobile \u201d means:\n(1) Described Automobile \u2014 the motor vehicle or trailer described in this policy.\n******\n(3)Temporary Substitute Automobile \u2014 under coverage A, B, and division 1 of coverage C, an automobile not owned by the named insured or his spouse or any resident of the same household while temporarily used as a substitute for the described automobile when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction. [All emphasis added.]\nFoundation Reserve knew that the only or primary purpose of the policy was to insure \u201cCorky\u2019s Wrecker Service,\u201d a commercial enterprise. Yet Item 6 of the Daily Report form, where all \u201cNamed Insured\u2019s Declarations\u201d are set forth reads:\nThe automobile(s) will be used for pleasure and family business only and will not be used commercially, except as follows: WRECKER SERVICE. SEE LIMITATION OF USE ENDORSEMENT FORM 21 (11-75) ATTACHED. [Emphasis added.]\nThis endorsement limited use of the wreckers within a 50 mile radius from Santa Fe, New Mexico.\nAshbaugh owned automobiles which were insured under policies issued by different insurance companies. The 1972 half-ton truck with a flat bed was \u201cowned\u201d by Ashbaugh, and at the time of the accident was used in Ashbaugh\u2019s commercial enterprises as \u201cCorky\u2019s Wrecker Service.\u201d It was not used for pleasure or family business.\nThe question for decision is: Are the \u201cCoverage Definitions\u201d and \u201cOther Definitions,\u201d supra, applicable to a wrecker owned by Ashbaugh and used by \u201cCorky\u2019s Wrecker Service\u201d? The answer is \u201cNo.\u201d\nThe insurance policy recognized two distinct entities for different insured vehicles: (1) Automobiles owned and used for pleasure and family business by Ashbaugh and his family, and (2) Trucks used in the \u201cWrecker Service.\u201d It was never contemplated or understood that the automobile provisions would be applied to the commercial enterprise. At the time the insurance was obtained, Foundation Reserve\u2019s agent told Ashbaugh that \u201cthe coverage would be afforded on another vehicle if one of the wreckers wasn\u2019t available for emergency use.\u201d This fact was Ashbaugh\u2019s understanding because the agent knew that the policy had to cover the necessary insurance required by the State Corporation Commission. The agent did not explain whether the substitute vehicle should be owned or non-owned by \u201cCorky\u2019s Wrecker Service.\u201d\nJudge Baca\u2019s comments pierced the position taken by Foundation Reserve, comments that fairly and realistically explain the basis of his decision. He said:\n* * * I think, complicating the situation here, is that Foundation Reserve has attached a set of provisos to the contract that may be better attached to a policy of insurance covering an automobile that was to be used for family purposes rather than for business purposes * * * I think here what has arisen is a business contract. * * * Is there an ambiguity in the words here? Well, perhaps there\u2019s not an ambiguity in the words here, but there is certainly an ambiguity in its interpretation. * * * [Emphasis added.]\nFoundation Reserve cannot plead ignorance of the law or lack of knowledge of rules applicable to insurance contracts. It knows the difference between a family automobile policy and a commercial policy. It has presented many legal problems heretofore in the appellate courts of New Mexico and the Tenth Circuit of the United States.\nSee, Foundation Reserve Insurance Company v. Faust, 71 N.M. 271, 377 P.2d 681 (1962); Armijo v. Foundation Reserve Insurance Company, 75 N.M. 592, 408 P.2d 750 (1965); Anaya v. Foundation Reserve Insurance Company, 76 N.M. 334, 414 P.2d 848 (1966) (an unfair restriction); Foundation Reserve Insurance Co. v. McCarthy, 77 N.M. 118, 419 P.2d 963 (1966) (unfair position taken on \u201cbeing struck by automobile\u201d); Foundation Reserve Ins. Co. v. Johnston Testers, Inc., 77 N.M. 207, 421 P.2d 123 (1966); Modisette v. Foundation Reserve Insurance Co., 77 N.M. 661, 427 P.2d 21 (1967) directly contra, Tsosie v. Foundation Reserve Insurance Company, 77 N.M. 671, 427 P.2d 29 (1967) (both seeking to deny coverage); State Farm Mut. Auto. Ins. Co. v. Foundation R. Ins. Co., 78 N.M. 359, 431 P.2d 737 (1967); Foundation Reserve Insurance Co. v. Kennedy, 79 N.M. 382, 444 P.2d 293 (1968); Foundation Reserve Ins. Co. v. Martin, 79 N.M. 737, 449 P.2d 339 (Ct.App.1968); Universal C. I. T. Corp. v. Foundation Reserve Ins. Co., 79 N.M. 785, 450 P.2d 194 (1969); Fierro v. Foundation Reserve Insurance Company, 81 N.M. 225, 465 P.2d 282 (1970); Homestead Invest. Inc. v. Foundation Reserve Ins. Co., 83 N.M. 242, 490 P.2d 959 (1971); C & H Constr. & Pav., Inc. v. Foundation Reserve Ins. Co., 85 N.M. 374, 512 P.2d 947 (1973); Foundation Reserve Insurance Company v. Kelly, 388 F.2d 528 (10th Cir. 1968).\nMy views on this subject matter were expressed in Read v. Western Farm Bur. Mut. Ins. Co., 90 N.M. 369, 563 P.2d 1162 (Ct.App.1977); Sandoval v. Valdez, 91 N.M. 705, 580 P.2d 131 (Ct.App.1978), Sutin, J., concurring; Thompson v. Occidental Life Ins. Co. of Cal., 90 N.M. 620, 567 P.2d 62 (Ct.App.1977), Sutin, J., concurring and dissenting.\nFoundation Reserve\u2019s insurance policy has, apart from many other provisions, 24 exclusions, 28 conditions, 5 coverage exclusions and 12 conditions of coverage. No insured, except one trained in insurance law or experienced in the insurance business can read and understand the complex, complicated and intricate provisions of this insurance policy written in words of fine print that ambles along the way. An insured must rely upon the representations of a sales agent. The insurer prepares the policy. Its sales agent is schooled in the art of salesmanship. A word, a phrase, or a provision in a contract of insurance is not what the insurer intended the language to mean, but what a reasonable person in the position of the insured would have understood them to mean.\nPublic policy demands that when an insurance policy is issued to a person or business, the contents thereof must be stated as at least one insurance company wrote:\nWe have written this policy in clear everyday English. We have also provided step-by-step instructions to make it easy for you to find out if a loss is covered. If you have any questions call your agent or broker. They will be glad to help you. [And then follows a clear explanation in everyday English.]\nIf necessary, public policy demands that an insurance agent explain in writing the complex, complicated and intricate provisions of an insurance policy applicable to a family or a business. The public needs this protection. An insurance company must give protection. The tortuosity of the insurance policy of yesterday should not be acceptable in courts of law today. Our duty is to liberally construe this insurance policy in favor of the insured and strictly against the insurer where the coverage and the language used is ambiguous. It has a double meaning by inserting family insurance into commercial insurance. Its meaning is doubtful. I agree that judgment should be affirmed.", "type": "concurrence", "author": "SUTIN, Judge" } ], "attorneys": [ "Juan G. Burciaga, Ussery, Burciaga & Parrish, Albuquerque, for third party defendant-appellant.", "James M. Kennedy, Coors, Singer & Stratton, P. A., Albuquerque, for appellee." ], "corrections": "", "head_matter": "607 P.2d 1173\nThe HERTZ CORPORATION, Plaintiff-Appellee, and Nancy Bradshaw, Plaintiff in Intervention-Appellee, v. Tilman H. ASHBAUGH, Defendant and Third Party Plaintiff-Appellee, v. FOUNDATION RESERVE INSURANCE CO., INC., Third Party Defendant-Appellant.\nNo. 3987.\nCourt of Appeals of New Mexico.\nFeb. 5, 1980.\nWrit of Certiorari Denied Feb. 26, 1980.\nJuan G. Burciaga, Ussery, Burciaga & Parrish, Albuquerque, for third party defendant-appellant.\nJames M. Kennedy, Coors, Singer & Stratton, P. A., Albuquerque, for appellee." }, "file_name": "0155-01", "first_page_order": 191, "last_page_order": 197 }