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JAMES E. SCOTT v. TRANSPORT INDEMNITY COMPANY

SEPTEMBER 02, 1987

JAMES E. SCOTT
v.
TRANSPORT INDEMNITY COMPANY



BEFORE ROY NOBLE LEE, P.J.; ROBERTSON AND ANDERSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

Once again we are confronted with a case that may well be resolved ultimately in favor of the Defendant. That result becomes quite delayed, for the trial court was too quick on the draw, as it directed a defense verdict in the face of evidence which, if believed, might have formed the legally sufficient undergirding for a judgment for plaintiff. We reverse and remand for further proceedings consistent with what we say below.

 II.

 A.

 James Earl Scott, Plaintiff below and Appellant here, is an adult resident citizen of Booneville, Mississippi. He is a truck driver by occupation. In 1977 he purchased a new Freightliner tractor for which he paid $46,699.21. He also purchased a used 1973 Hobbs trailer for approximately $2500.00. Scott operated as an independent owner-operator

 until January of 1981, at which time he leased his rig to Leeway Truck Lines out of Oklahoma City, Oklahoma, and began driving for Leeway as an independent contractor.

 Upon entering this new relationship, Scott was instructed by Leeway that he must secure liability insurance with some acceptable insurer. One option made available to Scott was obtaining liability and collision insurance coverage under Leeway's fleet policy with Transport Indemnity Company, the Defendant below and Appellee here. Because Leeway's fleet policy with Transport covered numerous vehicles owned and leased by Leeway, the rate was considerably less expensive than any Scott could have obtained acting individually.

 Significantly, in obtaining coverage through Leeway's fleet policy with Transport, Scott dealt exclusively with Leeway's insurance coordinator, that is, an individual on Leeway's payroll, not Transport's. It appears, however, that Transport allowed Leeway's insurance representative to deal directly with independent contractor truckers such as Scott. Significantly, the Leeway insurance representative explained to Scott that he should state the amount of insurance he wanted

 to mean as the amount of investment that I had in my truck in the case it was destroyed and what it would cost me to go out and buy a new piece of equipment and go right back into the business. The insurance man told me I should insure my vehicle or my business for what I felt it was worth and what it would take to replace it to put me back in business. On that basis I asked for $40,000.00 on the tractor and $5,000.00 on the trailer.

 Scott did not receive a copy of the insurance policy. Transport claims the master fleet policy was available through Leeway, but does not contest that each individual driver received only a certificate of insurance which did not include the terms of the policy. Scott says he asked for a copy of the fleet policy, but that such was not forthcoming.

 In any event, the master fleet policy, under Part VI, Physical Damage Insurance, Section D, states:

 "D. HOW WE WILL PAY FOR LOSSES - THE MOST WE WILL PAY. 1. At our option we may:

 a. Pay for, repair or replace damaged or

 stolen property; or

 b. Return the stolen property, at our expense. WE will pay for any damage that results to the auto from the theft.

 2. [The most we will pay for a loss is the smaller of the following amounts:] *
 a. [The actual cash value] * of the damaged or stolen property at the time of loss.
 b. [The cost of repairing] * or replacing the damaged or stolen property with other of like kind or quality." [Emphasis added]

 Endorsement Number 7 to the policy reads:

 "It is hereby understood and agreed that as respects physical and damage insurance, actual cash value is replaced by stated value throughout the policy wherever it may appear."

 Substituting the terms stated value for actual cash value in the policy language quoted above, the operative language of the written policy of insurance would read:

 "2. [The most we will pay for a loss is the smaller of the following amounts:] *
 a. [The stated value] * of the damage or stolen property at the time of loss.
 b. [The cost of repairing] * or replacing damaged or stolen property with other of like kind or quality." [Emphasis added]

 Approximately one year after entering the relationship with Leeway and the contractual coverage with Transport Indemnity Scott increased the stated value of his collision coverage to $55,000.00. He cited inflation as the reason that he wanted to increase his coverage. Scott was later told that the increase had been approved and he received a new certificate along with a new increased premium based on this additional coverage. Again, he was not given a copy of ...


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