Eyler v. Nationwide Mut. Fire Ins. Co., s. 90-SC-680-D

• Decision Date: 13 February 1992
• Docket Number: Nos. 90-SC-680-D,91-SC-002-DG,s. 90-SC-680-D
• Citation: 824 S.W.2d 855
• Parties: Sandra K. EYLER, Appellant/Cross-Appellee, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, et al., Appellees/Cross-Appellants.
• Court: United States State Supreme Court — District of Kentucky

Page 855

824 S.W.2d 855

Sandra K. EYLER, Appellant/Cross-Appellee, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, et al Appellees/Cross-Appellants.

Nos. 90-SC-680-DG, 91-SC-002-DG.

Supreme Court of Kentucky.

Feb. 13, 1992.

Bernard J. Blau, Jolly & Blau, P.S.C., Cold Spring, for appellant/cross-appellee.

Stephen D. Wolnitzek, Smith, Wolnitzek, Schachter & Rowekamp, P.S.C., Covington, Patrick C. Hickey, Edgewood, for appellees/cross-appellants.

LAMBERT, Justice.

The "Golden Blanket Homeowners Policy" was issued by appellee/cross-appellant, Nationwide Mutual Fire Insurance Company, to Larry Lusby. The policy insured Lusby's dwelling against fire and windstorm, but in Section II, the policy also provided Lusby, subject to certain exclusions, with protection from personal liability for his tortious conduct. It is conceded by the parties and was acknowledged by the courts below that the injury which brought about this litigation is a "covered" occurrence under the personal liability coverage of the policy unless one or more of the exclusions defeats coverage. This Court granted the motion and cross motion for discretionary review to construe the relevant exclusions in the policy.

The bizarre facts of this case are not significantly disputed. For several years prior to 1985, Charles Wanner accumulated and stored used vehicle tires on a farm he owned in Campbell County. By 1985 there were in excess of one million such tires and it was Wanner's intention to sell them to the Chinese government for their petroleum content. When the sale to the Chinese did not reach fruition, Wanner encountered financial difficulty and sought assistance from Larry Lusby. To bring Wanner's indebtedness current, Lusby agreed to borrow $75,000 and become a partner in the anticipated sale of the tires. As Lusby's assets were insufficient collateral for a $75,000 loan, Wanner conveyed the tire storage property to Lusby who obtained the loan by encumbering the property and his personal dwelling. When the intended sale still was not consummated, Lusby, too, fell on hard times and became delinquent in payment of the mortgage loan. In an effort to generate some income from the property, Lusby sought an additional loan from the bank to improve a building on the premises for rental as an apartment. In preparation for an inspection from a bank officer, Lusby undertook to have the property around the building cleaned up and this required relocation of some of the vehicle tires.

To perform the cleanup, Lusby hired Bruce Smith and instructed him to roll the tires from around the building down a hill. As Smith was rolling the tires as instructed by Lusby, appellant/cross-appellee, Sandra K. Eyler, was struck and suffered severe personal injuries.

As the sole issue before the Court is the proper construction of two exclusions in the policy, it is unnecessary to dwell upon the procedural history of this case. In summary, however, it appears that Sandra K. Eyler sued Larry Lusby and that Nationwide denied coverage and refused to defend on Lusby's behalf. Under the authority of Grundy v. Manchester Ins. and Indemnity Co., Ky., 425 S.W.2d 735 (1968); State Farm Mutual Ins. v. Marcum, Ky., 420 S.W.2d 113 (1967); and Critz v. Farmers Ins. Group, 230 Cal.App.2d 788, 41 Cal.Rptr. 401 (1964), for valuable consideration,

Lusby properly assigned his rights against Nationwide to Eyler who ultimately recovered judgment against Nationwide.

THE "OTHER PREMISES" EXCLUSION

Nationwide contends and the Court of Appeals agreed that the exclusion contained in Section II(1)(d) defeats coverage. This provision excludes personal liability and medical payments for an occurrence "arising out of premises owned or rented to an insured but not an insured location." Commonly, such exclusions are referred to as "other premises" exclusions.

This exclusion invalidates coverage for injury producing occurrences "arising out of [other owned premises]." Immediately, this phrase suggests the necessity for a causal connection between the premises and the injury. Ordinarily, "arising out of" does not mean merely occurring on or slightly connected with but connotes the need for a direct consequence or responsible condition. As we view it, to satisfy the "arising out of" exclusion in the policy, it would be necessary to show that the premises, apart from the insured's conduct thereon, was causally related to the occurrence. While most of the endeavors of mankind occur upon the surface of the earth and without it, harm could not occur, the law nevertheless imposes liability for negligent personal conduct upon the recognition that, in most cases, human behavior is the primary cause of the harm and the condition of the earth only secondary.

In a number of decisions, the dichotomy of causation between negligent personal conduct and dangerous condition of the premises has been acknowledged as controlling of the outcome. In Lititz Mutual Ins. Co. v. Branch, 561 S.W.2d 371 (Mo.App.1978), a dog bite was held not to have been "arising out of" the uninsured business premises so as to fall within the policy exclusion.

"Liability for injuries caused by an animal owned by an insured arises from the insured's personal tortious conduct in harboring a vicious animal, not from any condition of the premises upon which the animal may be located." Id. at 374.

Likewise, in Lanoue v. Fireman's Fund American Ins. Cos., 278 N.W.2d 49 (Minn.1979), the Court held that the insured's negligence in permitting a minor to gain access to whiskey on uninsured business premises did not arise out of the premises.

"[T]he premises must bear some causal relationship to the liability. Such a relationship is apparent when a claimant trips over improperly maintained steps.... The fact that something occurs at a place is not sufficient by itself to imply causation as to that place. It is more appropriate under the facts of this case to focus on the personal property--the whiskey--as being allegedly carelessly possessed by Lanoue at his office. Thus the liability is causally related to the whiskey, not the premises involved." Id. at 54.

In the foregoing and other decisions, courts have analyzed the occurrence to determine whether negligent personal conduct or the condition of the land bore the greater causal relationship to the harm. See Hingham Mutual Fire Ins. Co. v. Heroux, 549 A.2d 265 (R.I.1988); Safeco Ins. Co. of America v. Hale, 140 Cal.App.3d 347, 189 Cal.Rptr. 463 (1983); and Hanson v. General Accident Fire & Life Ins. Corp., Ltd., 450 So.2d 1260 (Fla.Dist.Ct.App.1984).

Nationwide relies heavily upon Arndt v. American Family Ins. Co., 394 N.W.2d 791 (Minn.1986), a decision in which an exclusion similar to the one here was held to invalidate coverage for an injury which occurred while the insured was unloading cornstalks on uninsured premises. Even though the insured's personal negligence was the cause of the injury, the Court reasoned that but for farming activities on the uninsured premises, the injury would not have occurred.

The exclusionary language in Arndt differs somewhat from the exclusion here, and the Supreme Court of Minnesota, the Court which rendered Arndt and Lanoue v. Fireman's Fund American Ins. Co., supra, found the distinction controlling. We need not determine whether the decisions of the Supreme Court of Minnesota in "[T]he injury in the instant case was not sufficiently use-connected to be considered reasonably to have been within the contemplation of the parties to the automobile insurance contracts here involved." United States Fidelity & Guaranty Co. v. Western Fire Ins. Co., 450 S.W.2d at 493.

                Arndt and Lanoue can be fully harmonized as this Court's decision in United States Fidelity & Guaranty Co. v. Western Fire Ins. Co., Ky., 450 S.W.2d 491 (1970), more nearly follows the Lanoue view.   In the Kentucky case, the issue was whether the accidental discharge of a firearm inside a moving automobile was an injury "arising out of the ownership, maintenance or use" of such automobile.   We quoted with approval from an annotation in 89 A.L.R.2d 150 which states that a causal relation or connection must exist between the injury and the use of the vehicle for the injury to come within the "arising out of" clause.   We said
                

For construction of "arising out of" in Workers' Compensation cases, see Tyler-Couch Construction Co. v. Elmore, Ky., 264 S.W.2d 56 (1954), and Peoples Service Station, Inc., v. Pervis, Ky., 379 S.W.2d 222 (1964).

Having determined that the controlling legal question is whether Lusby's personal conduct or the premises was the greater causative force in the harm which resulted, we need only quote from the trial court's opinion for a resolution. The court said:

"Here the injury did not flow from the Wanner premises, but from the unrelated tortious act of Lusby.... The negligence here was apart from the premises. The negligence was found in Lusby's tortious act of rolling tires over the hill as opposed to a defect in the premises."

Accordingly, the "other premises" exclusion does not defeat coverage.

THE "BUSINESS PURSUITS" AND RENTAL EXCLUSION

Nationwide also contends that the exclusion contained in Section II(1)(b) defeats coverage. This provision excludes personal liability and medical payments for an occurrence "arising out of business pursuits of an insured, or the rental or the holding for rental of any part of any premises by an insured." In the policy, "business" is defined to include "trade, profession, or occupation" and the exclusion does not apply to activities which are normally considered nonbusiness.

At length, the parties debate the holding of this Court in Neal v. Celina Mutual Ins. Co., Ky., 522 S.W.2d 179 (1975), and the decision of the Court of Appeals in Foster v. Allstate Co., Ky.App., 637 S.W.2d 655 (1981). In Neal, the accident occurred on the premises of an automobile service station, clearly business premises. The issue was whether the...