Behrens v. Aetna Life & Cas., 2
| Decision Date | 15 January 1987 |
| Docket Number | No. 2,CA-CV,2 |
| Citation | 736 P.2d 385,153 Ariz. 301 |
| Court | Arizona Court of Appeals |
| Parties | Andrea BEHRENS, Plaintiff/Appellant, v. AETNA LIFE & CASUALTY, Defendant/Appellee. 5853. |
Daniel Corrales, the son of Gilbert and Edna Corrales, while waterskiing in the family boat caused injury, variously described as "serious" and as a "ropeburn", to plaintiff Andrea Behrens. Claiming that the parents had negligently entrusted the boat to Daniel and had negligently "failed to provide supervision of the operation of the boat," Behrens brought suit against them. They tendered defense of the action to defendant Aetna Life & Casualty Company which had issued a homeowner's policy to the Corraleses. Aetna declined the defense because of a policy exclusion for "bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of any water craft" of the type involved in this case. Plaintiff took judgment against the parents for $100,000 and brought this declaratory judgment action against Aetna to establish that the policy provided coverage. She appeals from an adverse judgment. We affirm.
The essential basis of the appeal is that the exclusion applies only to claims for negligent operation of the boat and not to claims, such as negligent entrustment or supervision, involving negligence by insureds while not using the boat. Several courts, but not a majority, have agreed. See generally Annot., 6 A.L.R. 4th 555 (1981). We adopted the contrary majority view in Lumbermen's Mutual Casualty Co. v. Kosies, 124 Ariz. 136, 602 P.2d 517 (App.1979), because a negligent entrustment claim necessarily includes negligence in the operation of the excluded item and thus fits within the policy exclusion. A claim for negligent entrustment, or for that matter negligent supervision, cannot exist apart from the excluded negligent operation of the boat.
To avoid the rule in Lumbermen's Mutual, plaintiff contends that because the jurisdictions have split on the meaning of the exclusionary clause it is necessarily ambiguous and under the rule in Federal Ins. Co. v. P.A.T. Homes, Inc., 113 Ariz. 136, 547 P.2d 1050 (1976) must, therefore, be construed to provide coverage. We disagree. We are not certain that the...
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