Associated Indem. Corp. v. Warner, 1
| Decision Date | 28 July 1983 |
| Docket Number | No. 1,CA-CIV,1 |
| Citation | 694 P.2d 1199,143 Ariz. 585 |
| Parties | ASSOCIATED INDEMNITY CORPORATION, a California corporation, Plaintiff-Appellee and Cross-Appellant, v. Jack C. WARNER and Fran Warner, his wife, Defendants-Appellants and Cross- Appellees. 6011. |
| Court | Arizona Court of Appeals |
Appellants Jack and Fran Warner, who were being sued for damages to an airplane owned by a third party, sought coverage for the claim and defense of the suit from appellee Associated Indemnity Corporation (Associated), the company providing Warner's automobile insurance coverage. Associated denied the claim and filed a declaratory judgment action to determine its liability under the policy. Cross motions for summary judgment were filed and the trial court granted judgment in favor of Associated. The Warners appeal from the entry of summary judgment against them. Associated has filed a cross-appeal objecting to the denial of its claim for attorney's fees. The facts are not in dispute.
On November 24, 1977, Jack Warner, accompanied by his fifteen-year-old son, drove to Phoenix Sky Harbor Airport in the insured automobile to look over his Piper Cherokee aircraft. Because the plane had been sitting idle at the airport for several months, Warner intended to use the car to charge the airplane's battery to save it from permanent damage through prolonged discharge from non-use. He also intended to move the plane slightly at its tiedown to put a different portion of the tires in contact with the ground and to lubricate the cylinders of the aircraft engine by manually turning the propeller. Warner had no intention to fly the airplane or even to start its engine.
Warner positioned his car close to the airplane so that he could attach battery cables between the car battery and the airplane battery. Without Warner's knowledge and while his attention was diverted, his son untied the tiedown chains which were used to secure the aircraft. Warner attached the battery cables between the car and the airplane and had his son start the car engine. While the battery was charging, Warner began to turn the propeller by hand to accomplish the lubrication of the cylinders. Warner had barely turned the propeller when the airplane engine unexpectedly started up. The airplane began moving on its own power, pulling the battery cables loose from the car. The airplane taxied a short distance and collided with another aircraft causing it substantial damage.
The Warners carried no insurance on the Piper Cherokee aircraft. When the Warners were sued for the damage, they turned to their automobile insurance carrier to defend the suit and provide coverage. Associated then brought this declaratory judgment action.
The provision of the automobile policy which the Warners cite as providing coverage is that the insurance carrier agrees:
To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:
....
B. injury to or destruction of property ... arising out of the ownership, maintenance or use of the owned automobile....
The policy further provides that " 'use' of an automobile includes the loading and unloading thereof...." The Warners contend that the damage to the other aircraft arose out of Warner's use of his automobile to charge his airplane's battery. Clearly, the car was being "used" to charge the airplane battery. That does not automatically mean, however, that injury to the other aircraft arose out of the use of the insured vehicle.
The Warners point out that Arizona aligns itself with the many jurisdictions which hold that although some causal relationship between the accident and the motor vehicle must be found in order for the damage to be covered by the policy, the causal connection need not be that of direct and proximate cause. Morari v. Atlantic Mutual Fire Insurance Co., 105 Ariz. 537, 538-39, 468 P.2d 564, 566-67 (1970); Brenner v. Aetna Insurance Co., 8 Ariz.App. 272, 277, 445 P.2d 474, 479 (1968). Although this legal proposition is correct as far as it goes, the Warners have failed to note other critical language found in Morari. In discussing the circumstances under which an insurance carrier providing an automobile liability policy owes coverage, the Arizona Supreme Court stated:
The insurance is to pay for the negligent acts of the insured committed during the operation or use of the motor vehicle.... It should be emphasized: Liability arises out of negligent acts in the use of motor vehicles which proximately cause the accident and injuries.
105 Ariz. at 538, 468 P.2d at 565 (emphasis added). It is clear from Morari that even though the causal relationship between the motor vehicle and the accident does not have to be the proximate cause of the accident, the accident must be caused by a negligent act in the use of the motor vehicle. There is nothing within the facts of this case indicating any negligence in the use of the automobile. Whatever negligence may have occurred, whether in maintaining the aircraft in a condition that would allow its engine to unexpectedly start or in failing to have the aircraft tied down, was in the use of the airplane not the automobile.
We find the present case to be similar to Plaxco v. United States Fidelity & Guaranty Co., 252 S.C. 437, 166 S.E.2d 799 (1969). In Plaxco, the plaintiff was using his automobile battery to charge the battery in his airplane so that he could fly it. The airplane engine started, the brakes unexpectedly failed to hold, and the plane moved forward striking another airplane. The plaintiff sought coverage under his automobile policy which covered accidents arising out of the use of the automobile. In finding that the accident did not result from the use of the automobile, the South Carolina court held:
The accident in question did not result from the use of plaintiff's automobile. The only connection between the automobile and the airplane was the use of the automobile battery to start the airplane engine. This purpose had been completed when the airplane moved forward, after the brakes failed to hold. We find nothing in the facts or circumstances to show a causal connection between the use of the automobile battery as a source of power to start the airplane engine and the subsequent forward movement of the airplane. As stated by the trial judge, 'the power source was coincidental only.' The facts show that the accident resulted from the use of the...
To continue reading
Request your trial
-
Salerno v. Atlantic Mut. Ins. Co.
...764 (1993), and "the accident must be caused by a negligent act in the use of the motor vehicle." Associated Indem. Corp. v. Warner, 143 Ariz. 585, 588, 694 P.2d 1199, 1202 (App.1983), modified on other grounds, 143 Ariz. 567, 694 P.2d 1181 ¶ 17 By analogy, the books must have "caused and p......
-
American Modern Home Ins. Co. v. Rocha, 2
...The trial court's granting of appellee's motion for summary judgment is reversed. We note that in Associated Indemnity Corporation v. Warner, 143 Ariz. 585, 694 P.2d 1199 (App.1983), mod. on other grounds, 143 Ariz. 567, 694 P.2d 1181 (1985), Division One of this court held that an automobi......
-
Hunt Inv. Co. v. Eliot, CA-CIV
... ... 1 CA-CIV 9052 ... Court of Appeals of Arizona, ... Division ... Associated Indem. Corp. v. Warner, 143 Ariz. 585, 589, 694 P.2d 1199, ... ...
-
G & S Investments v. Belman, 2
...trial court's denial of appellees' motion for an award of attorney's fees. As was noted by the court in Associated Indemnity Corporation v. Warner, 143 Ariz. 585, 694 P.2d 1199 (1983) the better practice would be for the trial judge to state on the record the factors and reasons which were ......