MARSHALL v. SAFEGUARD MUT. FIRE INS. CO

Insurance — Automobile collision or upset — Exclusionary clause while automobile "is being operated" by third person — Actual physical operation — Movement of car after being parked by third person — Construction of policy.

In this case, in which it appeared that an automobile insurance policy provided coverage for direct or actual damage caused by collision of the automobile with another object or by upset, and that it contained a provision that the policy did not cover while the automobile "is being operated" by anyone other than the named insured or a member of his immediate household, unless expressly permitted by the company; that plaintiff averred that while the automobile was parked and unattended it drifted backward and collided with other vehicles, causing damage; that defendant averred that the automobile had been delivered to A, who was neither the named insured nor a member of insured's immediate household, that A had borrowed the automobile in furtherance of her own business, that A had parked the automobile after driving it, and that while so parked the automobile had drifted backward; and that the court below, holding that the exclusionary provision referred only to actual physical operation of the automobile by a third person, that, under the pleadings, there was no connection between the use of the vehicle and the accident, and that the policy was to be construed most strongly against the insurer and any doubt or ambiguity was to be resolved in favor of the insured, entered judgment on the pleadings for plaintiff; it was Held that the judgment of the court below should be affirmed.

Argued November 12, 1963.