Cawthon v. State Farm Fire & Cas. Co., 95-1167-CV-W-5.

• Citation: 965 F.Supp. 1262
• Decision Date: 11 February 1997
• Docket Number: No. 95-1167-CV-W-5.,95-1167-CV-W-5.
• Parties: Sandra K. CAWTHON, Plaintiff/Garnishor, v. STATE FARM FIRE & CASUALTY CO., Defendant/Garnishee.
• Court: U.S. District Court — Western District of Missouri

965 F.Supp. 1262

Sandra K. CAWTHON, Plaintiff/Garnishor, v. STATE FARM FIRE & CASUALTY CO., Defendant/Garnishee.

No. 95-1167-CV-W-5.

United States District Court, W.D. Missouri, Western Division.

February 11, 1997.

Joseph W. Amick, Joseph W. Amick, P.C., Kansas City, MO, for Sandra K. Cawthon.

James L. Sanders, Wallace, Saunders, Austin, Brown & Enochs, Chtd., Kansas City, MO, Derrick A. Pearce, Wallace, Saunders, Austin, Brown & Enochs, Chtd., Overland Park, KS, Gary M. Cupples, Kansas City, MO, for State Farm Fire & Cas. Co.

ORDER

LAUGHREY, District Judge.

Pending before the Court is Garnishor/Plaintiff's Motion for Summary Judgment and Garnishee/Defendant's Motion for Summary Judgment. By agreement of the parties, this case was removed from the September Joint Civil Docket and submitted to me on the parties' cross-motions for summary judgment. I grant the Garnishor/ Plaintiff's Motion for Summary Judgment (Doc. # 32) and deny the Garnishee/ Defendant's Motion for Summary Judgment (Doc. # 26).

I. UNCONTROVERTED FACTS

On March 26, 1993, Jeffrey Cawthon ("Jeffrey") was fatally injured in the backyard of his grandfather, Thomas Michael Langton ("Langton"). Langton was trying to remove a tree limb which became embedded in the ground two days earlier when he cut down a big tree. Langton had devised a plan for the limb removal and asked his son, Robert Cawthon, to help. Langton tied a nylon rope to the trailer hitch of his pickup truck and instructed Robert to put the rope around a large, nearby tree. At Langton's direction, the rope was placed at a 90-degree angle to the tree and then attached to the embedded tree limbs. As Langton drove his pickup slowly forward, the first tree limb was dislodged and catapulted forward, striking Jeffrey in the stomach. Jeffrey died three to four hours later as a result of his injuries.

Jeffrey's mother, Sandra Cawthon, filed suit in state court against Langton to recover for the wrongful death of her son. In that action, she asserted that Langton was negligent in devising the plan to remove the tree, failing to warn Plaintiff and Jeffrey, failing to clear the area before pulling the tree branches from the ground, and failing to inspect the manner in which the tree branches were tied. Plaintiff specifically alleged that Langton was not negligent in the operation of the truck. Judgment was entered against Langton in the amount of $500,000 and Langton was given credit for $25,000, the amount previously paid to Plaintiff by State Farm Mutual Insurance Company pursuant to Langton's automobile insurance policy.

At the time of the accident, Langton also had a homeowner's insurance policy with State Farm Fire & Casualty Company. That policy covers personal liability "because of bodily injury or property damage, to which this coverage applies, caused by an occurrence." An occurrence is defined as an accident which occurs during the policy period. In addition, that policy contains a provision excluding coverage for "[b]odily injury or property damage arising out of the ownership, maintenance, [or] use of a motor vehicle owned or operated by the insured." (Ex. 2, Sugg. in Supp. of Garnishor's Mot. for Summ. J.) It is my task to determine if this exclusion precludes Plaintiff from recovering her state court judgment from State Farm Fire & Casualty Company.

II. SUMMARY JUDGMENT STANDARD

A party is entitled to summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). To defeat a properly supported summary judgment motion, the nonmovant must "set forth specific facts showing that there is a genuine issue for trial." See Fed.R.Civ.P. 56(e). An issue is "genuine" only if the evidence is such that a reasonable juror could find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986); Equimark Commercial Fin. Co. v. C.I.T. Fin. Servs. Corp., 812 F.2d 141, 144 (3d Cir.1987). Where the nonmoving party bears the burden of proof, the burden upon that party is to "make a showing sufficient to establish the existence of [every] element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

Disputes arising from the interpretation and application of insurance contracts are matters of law and appropriate for court determination where there are no underlying facts in dispute. Moore v. Commercial Union Ins. Co., 754 S.W.2d 16, 18 (Mo.App. 1988); Centermark Properties, Inc. v. Home Indem. Co., 897 S.W.2d 98, 100 (Mo.App. 1995). The parties have agreed that there are no material facts in dispute and the sole question is whether the death of Jeffrey Cawthon arose out of the use of the insured's automobile.

III. APPLICABLE LAW

Because this is a diversity case, the rule of decision is Missouri law. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). In Missouri, the burden of proof is on the insurer to show that an exclusion clause applies. Arbeitman v. Monumental Life Ins. Co., 878 S.W.2d 915 (Mo. App.1994); Am. Family Mut. Ins. Co. v. Brown, 657 S.W.2d 273 (Mo.App.1983). Because insurance policies are designed to provide protection, they will be liberally interpreted to grant rather than deny coverage. Am. Family Mut. Ins. Co. v. Turner, 824 S.W.2d 19, 21 (Mo.App.1991). This also means that exclusion clauses are to be strictly construed against the insurer. Universal Underwriters Ins. Co. v. Dean Johnson Ford, Inc., 905 S.W.2d 529 (Mo.App.1995); Walters v. State Farm Mut. Auto. Ins. Co., 793 S.W.2d 217 (Mo.App.1990); Aetna Cas. & Sur. Co. v. Haas, 422 S.W.2d 316, 321 (Mo. 1968). The Missouri Supreme Court, however, has stated: "where language in an insurance contract is unequivocal, it is to be given its plain meaning notwithstanding the fact that it appears in a restrictive provision of a policy." Harrison v. MFA Mut. Ins. Co., 607 S.W.2d 137, 142 (Mo. banc 1980). The Court has also noted that "[A] policy must be liberally construed in favor of the insured so as not to defeat, without a plain necessity, his claim to indemnity, which in making the insurance it was his object to secure; and that, when words are susceptible of two interpretations, that which will sustain insurance claim must be adopted, since the language employed in the policy is that of the insurer." Schmidt v. Utilities Ins. Co., 353 Mo. 213, 182 S.W.2d 181, 183 (1944); see also Gulf Ins. Co. v. Noble Broadcast, 936 S.W.2d 810, 813-14 (Mo. banc 1997); Krombach v. Mayflower Ins. Co. Ltd., 827 S.W.2d 208 (Mo. banc 1992); Robin v. Blue Cross Hosp. Servs., Inc., 637 S.W.2d 695, 698 (Mo. banc 1982); Katz Drug Co. v. Commercial Standard Ins. Co., 647 S.W.2d 831 (Mo.App.1983). This does not mean that the court will create an ambiguity where none exists. Rodriguez v. Gen. Accident Ins. Co. of Am., 808 S.W.2d 379, 382 (Mo. banc 1991). "[W]here insurance policies are unambiguous, they will be enforced as written absent a statute or public policy requiring coverage." Id. at 382.

IV. DISCUSSION AND ANALYSIS

The question in this case is whether the death of Jeffrey Cawthon arose out of the use of the motor vehicle operated by the insured. In Schmidt, a case involving an automobile insurance policy, the Missouri Supreme Court held that the "words `arising out of ... use' are very broad, general, and comprehensive [and] ... are ordinarily understood to mean `originating from' or `having its origin in', `growing out of' or `flowing from'." Schmidt, 182 S.W.2d at 184. See also Bituminous Cas. Corp. v. Aetna Life and Cas., 599 S.W.2d 516 (Mo.App.1980). While one Missouri court has found the term "use" and "arising out of" to be facially unambiguous, Killian v. State Farm Fire & Cas., 903 S.W.2d 215 (Mo.App.1995), the proper application of this term to the myriad of legal and factual constructs in insurance disputes is anything but clear. See Cameron Mut. Ins. Co. v. Ward, 599 S.W.2d 13, 14-15 (Mo.App.1980). At one end of the factual spectrum is the automobile being operated on a public highway causing damage as a result of a collision with an object or a person. At the other end of the spectrum are injuries occurring adjacent to the vehicle or connected to it by the thinnest of evidentiary threads, i.e., the vehicle was merely used to bring the participants to the place where liability occurred. The matter is further complicated because the term "use" is found in automobile insurance policies where vehicle use is a prerequisite for coverage, as well as in homeowner's insurance policies where vehicle use will preclude coverage. Missouri has not addressed this particular fact pattern in the context of a homeowner's policy, so my job is to predict how a Missouri court would resolve the dispute.

Plaintiff has two main arguments for why the vehicle exclusion clause of the homeowner's policy should not apply in this case. First, Plaintiff argues that the exclusion clause is not triggered unless the vehicle is being operated negligently. Because Plaintiff carefully plead her case to avoid alleging the negligent operation of the truck and because there is no evidence that Langton was negligent in the operation of his truck, Plaintiff states that the use of the truck cannot be the proximate cause of Jeffrey's death. Second, even if the Court finds that the use of the truck contributed to Jeffrey's death, the Court should also find that this use was concurrent with Langton's negligence in devising the plan to remove the tree and failing to clear the area. When concurrent acts cause injury, there will be insurance coverage if either act independently would have been covered.

Defendant's main argument is that the use of the truck did cause Jeffrey's death because it was a necessary component of Langton's plan for the removal of...