United Fire & Casualty Co., Cedar Rapids, Iowa v. Day

657 P.2d 981, 1982 Colo. App. LEXIS 959
CourtColorado Court of Appeals
DecidedAugust 26, 1982
Docket81CA0682
StatusPublished
Cited by29 cases

This text of 657 P.2d 981 (United Fire & Casualty Co., Cedar Rapids, Iowa v. Day) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United Fire & Casualty Co., Cedar Rapids, Iowa v. Day, 657 P.2d 981, 1982 Colo. App. LEXIS 959 (Colo. Ct. App. 1982).

Opinions

KIRSHBAUM, Judge.

Plaintiff, United Fire & Casualty Company, Cedar Rapids, Iowa, (United) appeals the trial court’s declaratory judgment that a homeowner’s liability insurance policy issued by United provides coverage to defendant, Jan 0. Day, with respect to her defense of two civil actions which allege that her negligence caused bodily injuries to others. We affirm.

The parties stipulated at trial to the pertinent facts, as follows. On April 11, 1977, a car owned by, operated by, and registered to defendant’s son, Steven, was involved in an automobile accident. At the time of the accident, Steven was an insured under the United Homeowner’s policy. Two persons injured in the accident filed civil actions against Steven and defendant. The claims for relief against defendant expressly allege that the injuries sustained resulted from the fact that defendant had negligently entrusted the motor vehicle to Steven.1

Pursuant to her homeowner’s policy, defendant filed a claim with United demanding United’s assistance in defending these two civil suits. United denied coverage and filed this declaratory judgment action.

Coverage E of defendant’s homeowner’s policy provides that United will pay “all sums which ... defendant ... shall become legally obligated to pay as damages because of bodily injury or property damage, to which this insurance applies .... ” Coverage F of the policy requires United to pay reasonable medical expenses “to or for each person who sustains bodily injury to which this insurance applies caused by an accident .... ” The policy also contains the following provision:

“This policy does not apply:

a. to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of:
(2) any motor vehicle owned or operated by, or rented or loaned to any Insured ....”

United contends that as a matter of law the bodily injuries alleged in the underlying lawsuits “arose out of” the operation of an insured’s motor vehicle, and that, therefore, the homeowner’s policy does not provide coverage to defendant. We disagree.

Colorado courts have not considered the specific question of whether actions alleging “negligent entrustment” of a motor vehicle to another are actions which “arise out of” the operation of motor vehicles as that phrase is used in exclusionary clauses of homeowner’s insurance policies. The decisions of Mason v. Celina Mutual Insurance Co., 161 Colo. 442, 423 P.2d 24 (1967), and Azar v. Employers Casualty Co., 178 Colo. 58, 495 P.2d 554 (1972), aff’g, 28 Colo.App. 566, 479 P.2d 979 (1970), upon which United places great reliance, are inapposite. Those cases involved interpretations of exclusionary clauses of automobile liability insurance policies in the context of injuries resulting from the discharge of firearms. Neither considered the question of whether a general homeowner’s policy provides coverage for an insured allegedly responsible for injuries to others on a “negligent entrustment” theory of liability.

In Mason, supra, the automobile insurance policy provision in question covered damages “caused by accident and arising out of the ... use of the automobile.” [983]*983Concluding that no causal connection existed between a parked vehicle and the accidental discharge of a gun which resulted in the death of one of several boys playing in the car, the court held that the injuries did not arise out of a covered use of the vehicle. Similar “but-for” proximate cause tests were adopted in the two Azar, supra, decisions. A proximate cause test is not helpful in the circumstances of this case, however. Defendant’s alleged negligence could be determined to have been a proximate cause of the claimed injuries in one or both of the lawsuits filed against her. In this appeal United urges adoption of a legal standard that under no circumstances do homeowner’s policies containing this exclusionary provision provide coverage for claims alleging negligent entrustment of motor vehicles.

Jurisdictions which have considered the question here presented have reached contrary conclusions concerning the interpretation of similar homeowner’s insurance policies. Compare Barnstable County Mutual Fire Insurance Co. v. Lally, 374 Mass. 602, 373 N.E.2d 966 (1978) with Upland Mutual Insurance, Inc. v. Noel, 214 Kan. 145, 519 P.2d 737 (1974). See Great Central Insurance Co. v. Roemmich, 291 N.W.2d 772 (S.D. 1980). These courts, often divided, enunciate numerous legal principles in support of their ultimate results. The issue as framed here, however, is fundamentally a question of interpretation of an insurance contract. The initial inquiry is whether the language of the insurance contract is ambiguous.

In recent years several courts have indicated they find no ambiguity in the phrase “arising out of,” and, accordingly, have concluded that such broad language excludes coverage under homeowner’s insurance policies in negligent entrustment cases involving authorized use of automobiles. See Michigan Mutual Insurance Co. v. Sunstrum, 315 N.W.2d 154 (Mich.App.1982); Cooter v. State Farm Fire & Casualty Co., 344 So.2d 496 (Ala.1977), Aetna Casualty & Surety Co. v. American Manufacturers Mutual Insurance Co., 261 Ark. 326, 547 S.W.2d 757 (1977); Barnstable County Mutual Fire Insurance Co. v. Lally, 374 Mass. 602, 373 N.E.2d 966 (1978); Great Central Insurance Co. v. Roemmich, 291 N.W.2d 772 (S.D. 1980); Gargano v. Liberty Mutual Insurance Co., 384 So.2d 220 (Fla.App.1980); Insurance Company of North America v. Waterhouse, 424 A.2d 675 (Del.Super.1980). See also Bankert v. Threshermen’s Mutual Insurance Co., 105 Wis.2d 438, 313 N.W.2d 854 (App.1981).

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657 P.2d 981, 1982 Colo. App. LEXIS 959, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-fire-casualty-co-cedar-rapids-iowa-v-day-coloctapp-1982.