Cooperative Fire Ins. Ass'n of Vermont v. Gray

• Decision Date: 27 September 1991
• Docket Number: No. 89-463,89-463
• Citation: 157 Vt. 380,599 A.2d 360
• Parties: COOPERATIVE FIRE INSURANCE ASSOCIATION OF VERMONT v. Victor GRAY, Laurie Gray and Bonnie Gray v. AMERICAN PROTECTION INSURANCE COMPANY.
• Court: Vermont Supreme Court

Page 360

599 A.2d 360

157 Vt. 380

COOPERATIVE FIRE INSURANCE ASSOCIATION OF VERMONT v. Victor GRAY, Laurie Gray and Bonnie Gray v. AMERICAN PROTECTION INSURANCE COMPANY.

No. 89-463.

Supreme Court of Vermont.

Sept. 27, 1991.

Charity A. Downs of Conley & Foote, Middlebury, for plaintiff-appellee.

David A. Williams of Williams and Green, Morrisville, for defendants-appellees.

James W. Coffrin of Pierson, Wadhams, Quinn & Yates, Burlington, for defendant-appellant.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

JOHNSON, Justice.

This case requires us to decide whether either of two insurance policies, a homeowner's policy and an automobile policy, provides liability coverage for negligent entrustment of an automobile and negligent supervision of a minor. The action before the Court is one for a declaratory judgment brought by the issuer of the homeowner's policy against its insureds and a third-party complaint filed by the insureds against their automobile insurer.

On May 4, 1988, Victor Gray, son of defendants Laurie and Bonnie Gray, was involved in a single car accident causing injuries to two passengers, Lisa and David Sanders. The Sanders filed suit in Lamoille Superior Court alleging negligence against Victor Gray and, against Laurie and Bonnie Gray, negligent entrustment and negligent supervision in allowing their son to own and operate an automobile.

At the time of the accident, Laurie and Bonnie Gray were named insureds on the homeowner's insurance policy issued by plaintiff Cooperative Fire Insurance Association of Vermont (Cooperative). Victor Gray, as their resident minor son, was also covered under that policy. The Grays requested Cooperative to defend them in the case filed by the Sanders. Cooperative filed this declaratory judgment action seeking relief from liability and from the obligation to defend. The court granted summary judgment in Cooperative's favor, and the Grays appeal that ruling.

Laurie Gray was the owner of the automobile policy issued by American Protection Insurance Company (American). Victor's car was not listed on the policy, and was insured under a separate policy. The Grays filed a third-party complaint requesting a declaratory judgment that American was required to defend and cover them in the action by the Sanders. American moved for summary judgment, claiming that the automobile policy excluded coverage in this case. The motion was denied, and American appeals that ruling.

We affirm the trial court's ruling as to Cooperative and reverse and remand as to American.

I.

We first address the Grays' contention that the trial court should have required Cooperative to defend them under the provisions of their homeowner's insurance policy.

We note at the outset that the duty of Cooperative and American to defend the Grays under the relevant policies " 'is measured by the allegations upon which the claim is stated.' " Commercial Union Insurance Co. v. City of Montpelier, 134 Vt. 184, 185, 353 A.2d 344, 345 (1976) (quoting Commercial Ins. Co. v. Papandrea, 121 Vt. 386, 390, 159 A.2d 333, 335 (1960)). The complaint against the Grays alleges the facts of the accident; it also alleges the involvement of the parents in the purchase of their son's car, their failure to inspect it, their assistance in registering it, and their assent to the issuance of a driver's license to their son, who was under eighteen years of age. Although the claims of law are phrased in various terms, their substance is that the injuries arose as a result of the parents' negligent failure to supervise their son by permitting him to own and operate a motor vehicle, and their negligent entrustment to him of a motor vehicle. ¹

The Cooperative policy includes the following exclusion:

This policy does not apply to liability which results directly or indirectly from:

....

3. the ownership, operation, maintenance, use, occupancy, renting, loaning, entrusting, supervision, loading or unloading by an insured of motorized vehicles....

(Emphasis added.) On its face, the policy excludes liability for a comprehensive list of activities by an insured in connection with a motor vehicle. The only claims made against the Grays were for injuries arising out of the automobile accident. As noted above, Victor, the operator of the motor vehicle, was an insured under this policy. Therefore, coverage for liability arising directly or indirectly from his operation of an automobile is expressly excluded. Also expressly excluded is liability that results directly or indirectly from entrustment or supervision of a motor vehicle by any insured, which includes Laurie and Bonnie Gray. ²

In an effort to avoid the effect and plain meaning of the exclusion, the Grays advanced the theory that a cause of action predicated on negligent entrustment or negligent supervision is separate and distinct from the underlying tort of the entrustee or supervisee, and thus outside an exclusion for the "operation, maintenance and use" of an automobile. The cases cited by the Grays are inapposite. ³ The language of the Cooperative exclusion is not limited to liability arising from "operation, maintenance and use" of an automobile. Unlike language interpreted in cases cited by the Grays, it explicitly excludes coverage for liability arising from the entrustment or supervision of an automobile. Insurance contracts must be interpreted according to their terms and the evident intent of the parties, as gathered from the contract language. Sanders v. St. Paul Mercury Ins. Co., 148 Vt. 496, 500, 536 A.2d 914, 916 (1987). Cooperative was not obligated to defend the Grays, and summary judgment in its favor was appropriate.

II.

American contends that the trial court erred in obligating it to defend the negligent entrustment and supervision action against the Grays. The covered vehicles under the American automobile policy were a 1985 Plymouth Voyager and a 1986 Subaru GL 10, but not Victor's Pontiac Firebird, which was insured under another policy. The named insured on the American policy was Laurie Gray.

The insurance policy covered "damages for bodily injury or property damage for which any covered person becomes legally responsible because of an auto accident." The policy contained, however, the following exclusion and exception:

We do not provide Liability Coverage for the ownership, maintenance or use of: ...

3. Any vehicle, other than your covered auto, which is:

a. owned by a family member; or

b. furnished for the regular use of any family member.

This exclusion does not apply to your maintenance or use of any vehicle which is:

a. owned by a family member; or

b. furnished for the regular use of a family member.

(Emphasis added.) The reference to "your" in the exclusion refers to the named insured and spouse, if a resident of the same household. Thus, the policy excluded coverage for family cars not specifically listed in the policy, unless liability arose from the insureds' own maintenance or use of such cars. The car involved in the accident was Victor's automobile, an unlisted vehicle owned by a family member and therefore excluded from coverage. The Sanders did not allege that their injuries arose from maintenance or use of Victor's car by Laurie or Bonnie Gray. Accordingly, the exception to the exclusion does not apply.

The Grays rely on decisions from other jurisdictions holding that liability for negligent entrustment of an automobile arises out of the "ownership, maintenance, or use of an automobile," and is therefore outside the coverage of certain homeowner's policies. Pedersen v. Republic Ins. Co., 72 Md.App. 661, 666, 532 A.2d 183, 186 (1987) (homeowner's policy excluded negligent entrustment); Fillmore v. Iowa National Mutual Ins. Co., 344 N.W.2d 875, 878 (Minn.Ct.App.1984) (homeowner's policy excluded negligent entrustment); Potosky v. Fejes, 23 Ohio Misc.2d 45, 47, 492 N.E.2d 494, 496 (C.P. Cuyahoga County 1986) (homeowner's policy excluded negligent entrustment). The trial court relied on these cases in granting summary judgment in favor of the Grays. This argument, however, ignores the plain language of the exclusion and exception, cited above, which limits coverage to certain instrumentalities (the cars listed on the policy) and certain persons (the insured and his spouse). This limitation on instrumentalities and persons operates to exclude coverage for an accident involving an unlisted vehicle owned by a family member, or furnished for his or her regular use, and not maintained or used by an insured.

The judgment in favor of Cooperative Fire Insurance Association of Vermont is affirmed; the court's order denying American Protection Insurance Company's motion for summary judgment is reversed.

DOOLEY, Justice, concurring.

Reluctantly, I concur. As Justice Johnson persuasively shows, the exclusions from both the homeowner's...