Farm Bureau General Ins. Co. of Michigan v. Riddering, Docket No. 101911

• Decision Date: 16 December 1988
• Docket Number: Docket No. 101911
• Citation: 432 N.W.2d 404,172 Mich.App. 696
• Parties: FARM BUREAU GENERAL INSURANCE COMPANY OF MICHIGAN, Plaintiff-Appellee, v. Irene RIDDERING, Roger Henningsen, Jackie Henningsen, Tammy Henningsen, James Jaarsma, and Mary Kay Jaarsma, Defendants, and State Farm Mutual Automobile Insurance Company, Defendant-Appellee, and Pioneer State Mutual Insurance Company, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 404

432 N.W.2d 404

172 Mich.App. 696

FARM BUREAU GENERAL INSURANCE COMPANY OF MICHIGAN, Plaintiff-Appellee, v. Irene RIDDERING, Roger Henningsen, Jackie Henningsen, Tammy Henningsen, James Jaarsma, and Mary Kay Jaarsma, Defendants and State Farm Mutual Automobile Insurance Company, Defendant-Appellee and Pioneer State Mutual Insurance Company, Defendant-Appellant.

Docket No. 101911.

Court of Appeals of Michigan.

Submitted June 8, 1988.

Decided Nov. 7, 1988.

Released for Publication Dec. 16, 1988.

Dilley, Dewey & Damon, P.C. by Jonathan S. Damon, Grand Rapids, for Farm Bureau General Ins. Co. of Michigan.

Clary, Nantz, Wood, Hoffius, Rankin & Cooper by Robert L. DeJong and James A. Wesseling, Grand Rapids, for Pioneer State Mut. Ins. Co.

Cholette, Perkins & Buchanan by Robert E. Attmore, Grand Rapids, for State Farm Mut. Auto. Ins. Co.

Before MAHER, P.J., and MURPHY and BURNS, ^* JJ.

MURPHY, Judge.

Plaintiff brought this action for declaratory judgment to determine which insurance company was responsible for Irene Riddering's defense in any judgment rendered in an action brought by James and Mary Kay Jaarsma for damages arising out of a motor vehicle accident. The parties stipulated to the facts as established in the depositions of the parties and witnesses and to the existence and terms of the three policies of insurance.

The underlying basis of this action involved a one-car motor vehicle accident occurring on or about May 4, 1985, just after midnight. Just before the accident, Mary Kay Jaarsma was driving herself, Ms. Riddering and three other individuals home from a party held at a friend's house. Ms. Jaarsma was driving the vehicle, sitting in the driver's seat, while Ms. Riddering occupied the front passenger seat. The other three passengers were all sitting in the back seat of the Jaarsma vehicle. Ms. Riddering appeared to be fairly intoxicated that night.

There was some discussion that the group would go to Ms. Riddering's house for breakfast and Ms. Jaarsma was driving in that general direction. As Ms. Jaarsma was driving, she either passed the street needed to get to Ms. Riddering's house or Ms. Riddering decided she wanted to go somewhere else. At that point Ms. Riddering grabbed the top of the steering wheel away from Ms. Jaarsma with both hands and turned it sharply to the left. Ms. Riddering maintained a hold on the wheel for approximately thirty seconds and, as a result of Ms. Riddering's actions, the vehicle went off the road, through some bushes and collided with a tree. The injuries sustained by the two front seat passengers were quite severe, including numerous fractures.

At the time of the accident, the Jaarsma vehicle was insured through State Farm Mutual Automobile Insurance Company. Ms. Riddering was covered by her father's automobile policy through Farm Bureau General Insurance Company of Michigan. Ms. Riddering was also residing in her parents' home and, therefore, was included under her parents' homeowner's policy with Pioneer State Mutual Insurance Company.

Although Farm Bureau instituted the present action only to ascertain its duty to defend and its liability under the automobile policy issued to Ms. Riddering's father, the parties agreed that the trial court, for the sake of judicial economy, should decide what liability, if any, each of the insurers had under its respective policy.

On December 17, 1986, this action was submitted to the trial court for decision. The court ruled that neither Farm Bureau nor State Farm was responsible for Ms. Riddering's defense under their respective automobile insurance policies. A partial judgment was entered, based upon the trial court's ruling from the bench, for State Farm and Farm Bureau. The coverage question posed by Pioneer State regarding its homeowner's policy was taken under advisement. On March 18, 1987, the trial court issued its supplemental opinion on the question pertaining to Pioneer State's homeowner's policy, finding that policy did, in fact, cover Ms. Riddering's actions. The trial court's supplemental opinion was ultimately reduced to a declaratory judgment and it is from this judgment that Pioneer State appeals as of right.

On appeal, Pioneer State attempts to challenge the lower court's rulings relative to State Farm's and Farm Bureau's responsibilities to either the injured party, Ms. Jaarsma, or Ms. Riddering. However, Pioneer State did not file a cross-claim in the action below against State Farm or Farm Bureau. As such, Pioneer State was not an aggrieved party under the court's ruling as it pertained to State Farm and Farm Bureau. The only aggrieved parties under this ruling were Ms. Jaarsma or Ms. Riddering. It is well recognized that "one party can not claim another party's appellate opportunities." Kewin v. Bd. of Ed. of the Melvindale-Northern Allen Park Public Schools, 65 Mich.App. 472, 483, 237 N.W.2d 514 (1975). See also Winters v. National Indemnity Co., 120 Mich.App. 156, 159, 327 N.W.2d 423 (1982); MCR 7.203(A).

Since we lack jurisdiction to review arguments raised by Pioneer State pertaining to the automobile policies of State Farm and Farm Bureau, we limit our review to issues raised by Pioneer State that involve the interpretation of Pioneer State's homeowner's policy and the court's ruling regarding the insurance policy.

Pioneer State seeks to avoid liability under its homeowner's policy, claiming that certain exclusions under its policy should apply because Irene Riddering was operating or using the Jaarsma vehicle at the time of the accident or that Irene Riddering's intentional conduct excludes her from coverage under the policy. The trial court disagreed and so do we.

The trial court in its opinion ruled as follows:

"Admitting that Miss Riddering is an insured for purposes of personal liability coverage under its homeowner's policy, Pioneer relies on the following two exclusions:

" 'This policy does not apply:

" '1. Under Coverage E--Personal Liability and Coverage F--Medical Payments to Others:

" 'a. to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of:

* * *

* * * " '2. Any motor vehicle owned or operated by, or rented or loaned to any Insured;

* * *

* * *

" 'f. to bodily injury or property damage which is either expected or intended from the standpoint of the Insured.'

"The Court cannot conclude that when a passenger without invitation or excuse grabs the steering wheel out of the driver's hand she can reasonably be described as operating or using the vehicle for purposes of the first exclusion. State Farm Mutual Automobile Insurance Company v White [60 Or.App. 666, 655 P.2d 599 (1982) ]; West American Insurance Company v Silverman, 378 So 2d 28 (Fla App, 1979).

"Nor is it reasonable to conclude that such a passenger, by all testimony intent only on turning the vehicle around, intended bodily injury for purposes of the second exclusion. Putnam [Putman] v Zeluff, 372 Mich 553 (1964); Morrill v Gallagher, 370 Mich 578 (1963); Vermont Mutual Insurance Company v Dalzell, 52 Mich App 686 (1974). The assault and battery and intentional trespass cases relied upon by Pioneer are not apposite."

We have been unable to find any reported Michigan cases which address the issue of whether the grabbing of a steering wheel by a passenger constitutes the "operation" of a motor vehicle. Our research indicates that there is a split of authority in other jurisdictions. Two states which have considered similar conduct have determined that operation occurred. See United States Fidelity & Guaranty Co. v. Hokanson, 2 Kan.App.2d 580, 584 P.2d 1264 (1978); State Farm Mutual Automobile Ins. Co. v. Larsen, 62 Ill.App.3d 1, 18 Ill.Dec. 582, 377 N.E.2d 1218 (1978). On the other hand, two other states have held that grabbing the steering wheel by a passenger did not constitute "operating" a motor vehicle. See West Bend Mutual Ins. Co. v. Milwaukee Mutual Ins. Co., 384 N.W.2d 877 (Minn, 1986); State Farm Mutual Automobile Ins. Co. v. White, supra.

We are persuaded by the logic of the two latter opinions and believe that such reasoning should be applied to the facts of this case.

In State Farm v. White, supra, the...