Nationwide Mutual Fire Insurance v. Johnson

466 S.E.2d 313, 121 N.C. App. 477, 1996 N.C. App. LEXIS 81
CourtCourt of Appeals of North Carolina
DecidedFebruary 6, 1996
DocketNo. COA95-292
StatusPublished
Cited by4 cases

This text of 466 S.E.2d 313 (Nationwide Mutual Fire Insurance v. Johnson) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nationwide Mutual Fire Insurance v. Johnson, 466 S.E.2d 313, 121 N.C. App. 477, 1996 N.C. App. LEXIS 81 (N.C. Ct. App. 1996).

Opinion

WALKER, Judge.

On 28 October 1993 plaintiff Nationwide Mutual Fire Insurance Company (Nationwide) commenced this action to determine the rights of the parties under a homeowner’s policy. Specifically, Nationwide seeks a declaration that it has no obligation under the policy for any claims brought by decedent’s estate arising from the accident which occurred on the property of defendant Johnson.

On 15 September 1992 the decedent, a part-time employee of Johnson’s painting company, called Johnson to see if there was any work available. After Johnson explained that there was no work to be done, decedent replied, “Well, come on up and get me, we’ll do something another [sic].” Johnson then picked up the decedent and they went to a repair shop to see Johnson’s newly purchased 1971 GMC truck which was equipped with a boom and cherry-picker. Later, Johnson’s son drove the truck home and parked it under the power line.

Two employees were pitching horseshoes when they returned from the repair shop. The decedent climbed into the basket and began operating the boom and cherry-picker. Johnson testified that he thought the decedent was aware of the power line because he had been to Johnson’s property before and the decedent reassured him that he knew what he was doing. While Johnson was inside answering a telephone call, the decedent raised the boom and cherry-picker, came in contact with a live wire, and was electrocuted.

[479]*479Prior to the accident, Johnson secured a contract to paint a bridge. For the purpose of painting this bridge, Johnson purchased a 1971 GMC truck on 4 September 1992 which had a boom and cherry-picker permanently affixed to it. The cherry-picker was fueled by the truck’s main gasoline tank but operated by its own motor which was bolted in the bed of the truck. Two sets of controls could be used to raise and lower the cherry-picker — one set was bolted to the back of the truck, the other set was located inside the bucket.

On the date of the accident, the truck was not registered with the Department of Motor Vehicles nor covered by motor vehicle insurance. Prior to the accident, the truck had only been driven from the repair shop to Johnson’s home. When the accident occurred the truck was stationary and the truck’s motor was not running.

Nationwide’s sole argument on appeal is that the trial court erred in granting defendants’ motion for summary judgment. Specifically, Nationwide argues that coverage for the accident is excluded under the “motor vehicle” and “business pursuits” provisions in Johnson’s homeowner’s policy. The policy provides coverage for claims involving bodily injury or property damage against the insured caused by an occurrence. Coverage is excluded for bodily injury or property damage arising out of the business pursuits of an insured as well as the following:

1. Coverage E — Personal Liability and Coverage F — Medical Payments to Others do not apply to bodily iniurv or property damage:
e. arising out of:
(1) the ownership, maintenance, use, loading or unloading of motor vehicles or all other motorized land conveyances, including trailers, owned or operated by or rented or loaned to an insured: (2) the entrustment by an insured of a motor vehicle or any other motorized land conveyance to any person (emphasis added).

Summary judgment is the device used to render judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law. Davis v. Town of Southern Pines, 116 N.C. [480]*480App. 663, 665, 449 S.E.2d 240, 242 (1994), disc. review denied, 339 N.C. 737, 454 S.E.2d 648 (1995); N.C. Gen. Stat. § 1A-1, Rule 56 (1990). The party moving for summary judgment has the burden of showing that there is no triable issue of material fact. Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985). “The movant may meet this burden by proving that an essential element of the opposing party’s claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim. ...” Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992). All inferences of fact at the summary judgment hearing must be drawn against the moving party and in favor of the party opposing the motion. Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989).

I.

Plaintiff first argues that it is entitled to summary judgment because the evidence establishes that the claim by decedent’s estate arises out of “the ownership, maintenance, use, loading, or unloading of the truck, as well as the entrustment of the truck” and therefore coverage is excluded. We disagree.

The crucial issue in this case turns on a determination of the meaning given to the language “arising out of the use” in the homeowner’s policy exclusion. In construing the provisions of an insurance contract, “[exclusionary clauses are interpreted narrowly while coverage clauses are interpreted broadly to provide the greatest possible protection to the insured.” State Capital Ins. Co. v. Nationwide Mutual Ins. Co., 318 N.C. 534, 542-543, 350 S.E.2d 66, 71 (1986).

In State Capital, the Supreme Court interpreted a similar homeowner’s exclusion provision. The Court held that the homeowner’s policy afforded coverage for injuries incurred when a rifle stored behind the seat of the truck discharged when the insured attempted to remove it from the vehicle. Id. at 547, 350 S.E.2d at 74. In reaching its decision, the Court relied on the rule of construction “that all ambiguities in exclusion provisions are construed against the insurer and in favor of coverage.” Id. at 541, 350 S.E.2d at 70. The Court then noted that “there can be little doubt that the terms ‘use’ and ‘loading and unloading’ are ambiguous....” Id. at 544, 350 S.E.2d at 72. In construing the policy at issue, the Court applied the following two principles:

[481]*481(1) ambiguous terms and staudards of causation in exclusion provisions of homeowners policies must be strictly construed against the insurer, and (2) homeowners policies provide coverage for injuries so long as a non-excluded cause is either the sole or concurrent cause of the injury giving rise to liability. Stating the second principle in reverse, the sources of liability which are excluded from homeowners policy coverage must be the sole cause of the injury in order to exclude coverage under the policy.

Id. at 546, 350 S.E.2d at 73.

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Cite This Page — Counsel Stack

Bluebook (online)
466 S.E.2d 313, 121 N.C. App. 477, 1996 N.C. App. LEXIS 81, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nationwide-mutual-fire-insurance-v-johnson-ncctapp-1996.