Farmers Ins. Co. of Arizona v. Till, 1

• Decision Date: 12 September 1991
• Docket Number: No. 1,CA-CV,1
• Citation: 825 P.2d 954,170 Ariz. 429
• Parties: FARMERS INSURANCE COMPANY OF ARIZONA, a corporation, Plaintiff-Appellee, v. Heather TILL, a single woman, Defendant-Appellant. 90-430.
• Court: Arizona Court of Appeals

Page 954

825 P.2d 954

170 Ariz. 429

FARMERS INSURANCE COMPANY OF ARIZONA, a corporation, Plaintiff-Appellee, v. Heather TILL, a single woman, Defendant-Appellant.

No. 1 CA-CV 90-430.

Court of Appeals of Arizona Division 1, Department D.

Sept. 12, 1991.

Review Denied March 17, 1992.

Aspey, Watkins & Diesel by Donald H. Bayles, Jr., Flagstaff, for plaintiff-appellee.

Law Office of Michael Reddig, P.C. by Michael S. Reddig, Flagstaff, for defendant-appellant.

OPINION

LEVI RAY HAIRE, Retired Judge.

On this appeal we must determine whether an automobile liability insurance policy issued by Farmers Insurance Company (Farmers) covered injuries the defendant, Heather Till, sustained when attacked by a dog while in the covered vehicle. The trial court ruled that there was no coverage and granted Farmers' motion for summary judgment.

FACTS AND PROCEDURAL HISTORY

The material facts are not disputed. Heather Till was waiting for her fiance to finish work at a restaurant in Flagstaff. While there, she met Linus Neinstadt and Jill Peterson. Till and Peterson decided to go to a store in a pickup/camper owned by Neinstadt and Peterson. Peterson removed her dog from the cab of the truck and placed it in the camper section. She did not, however, close the sliding glass window that separated the camper from the cab. Peterson and Till entered the cab. Peterson started the engine of the truck and let it run for approximately one to two minutes. During this time, the dog pushed its way through the unsecured window, halfway into the cab, and Till began petting it. After Till had petted the dog for about a minute, she withdrew her hand. The dog then attacked Till and injured her.

When Till sued Peterson and Neinstadt, they tendered the defense of the action to Farmers. Thereafter, Farmers filed this declaratory judgment action, claiming that because the accident did not involve the use of the insured vehicle, there was no coverage under the policy. The pertinent language in Farmers' policy states:

We will pay damages for which any insured person is legally liable because of bodily injury to any person and/or property damage arising out of the ownership, maintenance or use of a private passenger car ... (emphasis added).

Upon the uncontroverted facts, the trial court found that there was no coverage and granted Farmers' motion for summary judgment.

DISCUSSION

The issue presented on appeal is whether the dog's attack on Till was one "arising out of the ... use" of the insured vehicle. Till contends that Peterson's action in moving the dog from the passenger cab to the camper section constituted a "loading" of the dog, a use of the truck, and that Peterson's negligence consisted of not securing the sliding glass window between the cab and the camper. Farmers argues that any "loading" was complete upon the dog's having entered the camper and, therefore, the accident's connection with the truck is merely coincidental.

In an insurance policy, the words "arising out of" are "broad, general, and comprehensive terms effecting broad coverage." Brenner v. Aetna Ins. Co., 8 Ariz.App. 272, 275, 445 P.2d 474, 477 (1968). They import a concept of causation or a causal relationship between the accident and the automobile. Id. However, the causal connection does not equate to proximate cause. Id. "[I]t is not necessary that the injury be directly and proximately caused, in the strict legal sense, by the activities of the motor vehicle itself." Morari v. Atlantic Mutual Fire Ins. Co., 105 Ariz. 537, 538-39, 468 P.2d 564, 565-66 (1970), quoting Columbia Southern Chemical Corp. v. Manufacturers and Wholesalers Indemnity Exchange, 190 Cal.App.2d 194, 201-02, 11 Cal.Rptr. 762, 767. By the same token, the mere fact that the injury occurred in the automobile does not lead inexorably to the conclusion that there is coverage. Morari v. Atlantic Mutual Fire Ins. Co., 105 Ariz. at 540, 468 P.2d at 567; Brenner v. Aetna Ins. Co., 8 Ariz.App. at 276, 445 P.2d at 478.

A comparison between Morari and Brenner serves to illustrate the necessary causal connection. In Brenner, three men were riding in a truck returning from a "hunting and exploration" trip. The truck's owner, mindlessly toying with a handgun, accidentally shot the victim. Division 2 of this court held that the automobile policy on the truck did not afford coverage because of the lack of a causal connection:

From the standpoint of causation, this injury could have occurred in the woods, in a hunting lodge, or in a house. That the situs of the accident was in fact within a motor vehicle and the fact that both the tort-feasor and the injured party were "using" the car at the time does not make the injury one "arising out of the * * * use" of the vehicle. Nor did the injury result from any incident of "ownership" of the vehicle.

8 Ariz.App. at 276, 445 P.2d at 478.

In Morari, the issue was whether Mr. Hallabrin's homeowner's policy covered the accident which occurred in his car. The homeowner's policy excluded coverage for the use, including loading and unloading, of an automobile not in close proximity to his home. The accident occurred when Hallabrin and Morari were deer hunting. Driving along a forest road they spotted a deer. Hallabrin stopped the car, got out and reached back in to get his rifle. Immediately upon his touching the rifle it fired, injuring Morari. The Arizona Supreme Court held that the reaching back into the car to retrieve the gun constituted an "unloading" of the vehicle not in close proximity to home, and thus the homeowner's policy excluded coverage. In effect the court held that the accident would have been covered by the automobile policy:

Appellant argues that Hallabrin's negligence was in keeping a loaded gun, not on safety, in his truck and that the negligence was complete prior to the unloading and consequently the unloading was not the cause of the accident. We think appellant is shifting the meaning of the word "cause." The unloading does not have to be the cause in the sense of proximate cause of the accident. The accident need only be connected with the unloading. Hallabrin's act in keeping the gun loaded and not on safety created a dangerous condition from which reasonable men might conclude greater care in its subsequent handling was required in order to prevent its accidental discharge. No doubt the rifle could have been removed from the truck with such care that Morari would not have been injured. The careless use in connection with the unloading was the negligent act from which the injury stemmed.

Morari relies on ... Brenner v. Aetna Insurance Co., 8 Ariz.App. 272, 445 P.2d 474.... We think [it is] distinguishable.

Brenner was a case in which three persons were riding in an automobile.... We think it is obvious that there was no connection between the toying with the gun, the negligent act, and the use of the motor vehicle. That is not the case here. The rifle was part of the cargo of Hallabrin's truck. The truck was being used for hunting and the transportation of the hunters and their rifles. The carriage of the rifles was part of the use of the truck in hunting.

Id., 105 Ariz. at 539-40, 468 P.2d at 566-67.

Further illustrating the lack of coverage when the automobile is merely the situs of the accident are Mazon v. Farmers Ins. Exchange, 107 Ariz. 601, 491 P.2d 455 (1971) and Vanguard Ins. Co v. Cantrell, 18 Ariz.App. 486, 503 P.2d 962 (1972). In the former case, Mazon was seated in his car when he was struck in the eye by a rock thrown by an occupant of another vehicle. In the latter case, Cantrell was shot by Browning following Browning's robbery of the drive-up liquor window where Cantrell was working. Browning, as he was driving away from the scene, fired a shot over his shoulder in an attempt to scare Cantrell. In both cases, the courts held that there was no coverage under the automobile policies. In essence, the involvement of the automobiles was merely coincidental and the injuries did not arise out of the use of the autos: there was no "causal connection."

In State Farm Mutual Automobile Ins. Co. v. Transport Indemnity Co., 109 Ariz. 56, 505 P.2d 227 (1973), the court held that there was coverage when liquified...