### NO. 81-221 IN THE SUPREBE COURT OF THE STATE OF MONTANA

AETNA INSURANCE COMPANY, Plaintiff and Appellant,
VS. 

### EARL CAMERON d/b/a CAMERON TRUCK REPAIR and SUHR TRANSPORT and GENE LENZ,d/b/a GENE LENZ CONSTRUCTION, ~efendants and Respondents.

Appeal from: District Court of the Eleventh Judicial District, In and for the County of Flathead. HonorableNat Allen, Judge presiding. Counsel of Record: For Appellant: Warden, Christiansen & 

### Johnson, Kalispell,Montana For Respondents: Murray, Kaufman,Vidal and Gordon, Kalispell,Montana E. Eugene Atherton, Kalispell,Montana

Filed: Submitted on briefs: July 

### 9, 1981 Decided: September 15, 1981

Y U' 

### ClerkMr. Justice Frank B. Morrison, 

### Jr., delivered the Opinion of the Court. Plaintiff, Aetna Insurance Company (Aetna), appeals from an order and judgment of the DistrictCourtwhich denied 

### itsmotion for summary judgment and granted summary judgment to the respondents. In 

### its complaint Aetna asked for a declaratoryjudgment construing a cargo insurance policy issued to the respondent EarlCameron, a self-employed hauler of heavy equipment. The policy insured goods hauled by Cameron against "directphysical loss ordamage caused by: 

# . . . 5. Accidental collision of carrying conveyance with any other vehicle or object" but excluded coverage for: 

# ".

. . j. Loss or damage caused by the vehicle coming incontactwith any portion of the roadbed, curbing, railsor 

### ties of railways; "k. Loss or damage caused directlyor indirectly by the load or any portion thereof or tarpaulin covering thereon coming intocontactwith any other object unless the carrying vehicle alsocollideswith such object

# ..." On November 2, 1979, Cameron 

### was hauling 

### a forklift owned by respondent Gene Lenz from Kalispell, Montana, to Columbia Falls, Montana. Before reaching 

### its destination, the forkliftmast struck a railroad overpass causing extensive damage to the forklift. The collisionbetween the forklift and the overpass caused the trailer to swerve and strike the overpass supports. The issueraised by this appeal 

### iswhether the damage resulted from a peril insured against under the policy. There areno disputed genuine issues of material fact. Aetna contends the damage was not covered for three

reasons. First, the primary coverage required atleast two

occurrences in the proper sequence before coverage existed: 

### (1)the carrying conveyance ortrailermust initially collidewith an object, and (2) the collisionbetween the trailer and objectmust directly cause the physical damage or loss to the cargo. A collisionbetween the cargo and a foreign object which 

### isthe directcause of the damage 

### isnot, argues appellant, within the insured peril. Second, the overpass formed part of the railway roadbed, therefore, exclusion (j) of the policy precludes coverage. Lastly, the accident

### was covered by exclusion (k). Appellant contends that the conveying vehicle did not collidewith the same objectas did the cargo thus making exclusion (k)operative. The respondents contend ambiguity exists requiring judicial construction of the policy. Respondents relyupon ambiguity being construed against the insurance carrier. Wehold that the general risk provision and exclusion (k),areambiguous when read together. The insured 

### is entitled to a favorable construction. Under the facts of this case, a reasonable interpretation of the policy provisions supports the judgment of the DistrictCourt. Aetna has cited numerous cases arising from cargo collisionswhere the courts have found no ambiguity, and have held that the plainmeaning of the terms and definitions denied coverage for cargo collisions. Hamilton Trucking Service, Inc. v. Automobile Ins. Co. (1951), 39 Wash.2d 688, 237 P.2d 781; Mendelsohn v. Automobile Ins. Co. (1935), 290 Mass. 228, 195N.E. 104; TrinityUniversal Ins. Co. v. Robert P. Stapp Inc. (1963), 278 Ala. 209, 177 S.2d 102; Wolverine Insurance Company v. Jack Jordan Inc. (1957), 213 Ga. 299, 99 S.E.2d 95. Contrary authority exists supporting liberal construction of similar cargo riskprovisions. C & J Commercial rivew way, Inc. v. Fidelity & Guaranty Fire Corp. (1932), 258 ~ich. 624, 

### 242 N.W. 789; Gould Morris Electric Co. v. ~tlantic FireIns. Co. (1948), 229 N.C. 518, 50 S.E.2d 295; Jorgenson

v. Girard Fire & Marine Ins. Co. (1949), 229 Minn. 48, 38 N.W.2d 209. The cases cited arenot controlling under the facts of this case. None of the cases cited involved an exclusionary provision relating tocargo collisions as

### we have here. Contracts of insurance areinterpreted inlightof all relevantprovisions. Alpha Real Estate Dev. v. Aetna Life & Cas. Co. (1977), 174 Mont. 301, 570 P.2d 585. Here the general risk provision provided coverage for cargo loss caused by collision of the carrying conveyance with an objectbut the exclusion only denies coverage in those instances where cargo 

### isdamaged but the conveying vehicle 

### is not incollision. The construction urged by Aetna would require singular focus on the general risk provision and 

### littleor no consideration of themeaning and effect of exclusion (k), the only specificpolicy reference to cargo collision. The ambiguity here evidentmust be resolved against the contract's author. It appears thatcoverage was intended if the conveying vehicle struck "such object". Here the conveying vehicle struck a portion of the overpass structure thus satisfying policy provisions for coverage. Aetna argues that the overpass was a part of the railway roadbed and thereby excluded by subsection (j). Exclusions and words of limitationmust be strictlyconstrued against the insurer. Northwestern Nat. Cas. Co. v. Phalen Mont. (1979)I 

## - - 

## , 597 P.2d 720r 36 St.Rep. 1115. An overpass 

### isnot commonly understood tobe roadbed; subsection (j)does not therefore exclude coverage. The judgment of the DistrictCourt 

### is affirmed.

### We Concur: