Appeal from Lawrence Circuit Court. (CV-89-231). John L. Madison, Jr., TRIAL JUDGE.
Released for Publication August 25, 1995.
Butts, Shores, Houston, Ingram, and Cook, JJ., concur.
The opinion of the court was delivered by: Butts
Joyce Cole, as administratrix of the estates of her parents, Sol Bill Stewart and Gladys Stewart, deceased, appeals from a declaratory judgment entered in favor of Alfa Mutual Insurance Company, Inc. ("Alfa").
The Stewarts died when their tour bus, which was traveling through the state of Colorado, was struck by a boulder that rolled down a large hill after being dumped from a front-end loader at a point higher atop the mountain. Cole claimed benefits under three separate uninsured motorist policies that her parents had previously purchased from Alfa, arguing that the front-end loader from which the boulder fell was an "uninsured vehicle" within the terms of the policies. Alfa then brought this declaratory judgment action, seeking a determination of whether Cole was entitled to uninsured motorist benefits; Cole counterclaimed for a declaration that she was entitled to coverage under the policies. Following an ore tenus proceeding, the trial court entered a judgment for Alfa and against Cole. Cole appeals.
Where evidence is presented to the trial court ore tenus, a presumption of correctness exists as to the court's Conclusions on issues of fact; its determination will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Gaston v. Ames, 514 So. 2d 877, 878 (Ala. 1987).
The record shows the following: On August 10, 1987, the Colorado Highway Department sent a maintenance worker, Phillip Pacheco, to U.S. Highway 40 to remove four large boulders lying in a ditch on the edge of the highway. Pacheco moved the first and second rocks by picking up each rock with the front-end loader and then driving the loader several hundred feet up the paved surface of U.S. Highway 40, then over and across approximately 4.8 feet of an adjacent paved shoulder. He then traveled approximately 73 feet over an unpaved "fill" area that was adjacent to the paved shoulder and within the right-of-way of U.S. Highway 40. This area is not used for the general circulation of vehicles on U.S. Highway 40.
Pacheco dumped the first two rocks over the edge of the fill area into a ravine and then made a return trip of several hundred feet back up U.S. Highway 40 to pick up the third rock. When Pacheco dumped the third rock at the edge of the fill area, it did not slide down into the ravine as the other two rocks had; rather, it began rolling down the fill area below the dump site and into the trees there. At the end of its path, the third rock collided with the Stewarts' tour bus as the bus was traveling along a lower portion of U.S. Highway 40.
At the time of the accident, the Stewarts had valid uninsured motorist coverage under three Alfa policies, which contained the following exclusion:
"An uninsured automobile does not include any vehicle:
"3. designed for use mainly off public roads except while on public roads...."
It is stipulated that the front-end loader is designed for use mainly off public roads and that the loader was on the fill area, well off U.S. Highway 40, when Pacheco dropped the boulder. Cole argues, however, ...