Hagen v. Aetna Cas. and Sur. Co.

• Decision Date: 24 May 1996
• Docket Number: Nos. 94-1368,94-1443,s. 94-1368
• Citation: 675 So.2d 963
• Parties: 21 Fla. L. Weekly D1207 Earnest HAGEN and Jerry M. Richardson, and Della L. Richardson, his wife, Appellants, v. AETNA CASUALTY AND SURETY COMPANY, etc., et al., Appellees.
• Court: Florida District Court of Appeals

Page 963

675 So.2d 963

21 Fla. L. Weekly D1207

Earnest HAGEN and Jerry M. Richardson, and Della L. Richardson, his wife, Appellants, v. AETNA CASUALTY AND SURETY COMPANY, etc., et al., Appellees.

Nos. 94-1368, 94-1443.

District Court of Appeal of Florida Fifth District.

May 24, 1996.

Rehearing Denied July 2, 1996.

Robert J. Mayes of Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A., Pensacola, for Appellant Earnest Hagen.

William A. Bald of Dale & Bald, P.A., and Stephen J. Pajcic, III of Pajcic & Pajcic, P.A., Jacksonville, for Appellants Jerry M. Richardson and Della L. Richardson, his wife.

Robert J. Jack, and Wallace W. Tudhope, of Jack, Tudhope & Wyatt, P.A., Maitland, for Appellees.

En banc.

HARRIS, Judge.

We have elected to consider this case en banc. Ernest Hagen and Jessie Ward, in partnership, operated a small retail carpet store under the name of E & J Carpet Country (E & J). It was a small operation which neither owned nor had access to a forklift. It also owned no vehicles but relied on the privately owned vehicles of Hagen and Ward in the operation of its business.

Jerry Richardson was an employee of Carpet Transport which was in the business of delivering carpet to E & J and other retail carpet stores. When the retailer had no forklift, it was common practice to pull the carpet out of the delivery truck with a vehicle owned by the retailer. Richardson carried a rope with him for this purpose.

On October 29, 1987, Richardson delivered carpet to E & J. Hagen was out of town at this time. In order to unload the carpet, Richardson tied one end of the rope to the carpet in the truck and someone from E & J tied the other end to the bumper of a vehicle used regularly by E & J for this purpose. The vehicle was then pulled forward, thereby pulling the carpet out of the delivery truck. Three rolls of carpet had thus been uneventfully pulled from the truck; however, as the fourth roll was being pulled, it knocked Richardson down and fell on him. He was injured.

Richardson sued Hagen and Ward both individually and as the partnership. Aetna, their commercial general liability insurance insurer, was notified of the action and commenced a defense. The original complaint claimed liability based on Ward's negligent operation of the vehicle in the unloading of the carpet.

After investigating the claim and the facts giving rise to the injury, Aetna determined that the claim was for an injury excluded from its policy and, after proper notice to its insureds, withdrew from representation. It appears that after Aetna withdrew from representation Regardless of the allegations of the complaint, it is the underlying facts that determine the duty to indemnify. Aetna's policy involved in the action contained the following exclusion:

                Richardson's complaint was amended so that "the sole allegation of negligence was that (E & J) failed to have proper equipment (such as a forklift) for the unloading of carpet.  There was now no claim that Ward operated the van negligently."   There is no indication in this record, nor in the allegations of the present bad faith action against Aetna, that it was ever notified of this amended complaint.  A judgment in favor of Richardson was entered against Hagen.  Both Hagen and Richardson claim bad faith in this action.  After determining that there was no duty to indemnify or defend, the trial court granted summary judgment in favor of Aetna.  Hagen and Richardson appeal
                

This insurance does not apply ... to bodily injury ... arising out of the ... operation, use ... of any automobile ... operated by ... the insured.

The term "arising out of" is broader in meaning than the term "caused by" and means "originating from," "having its origin in," "growing out of," "flowing from," "incident to" or "having a connection with" the use of the vehicle. National Indemnity Co. v. Corbo, 248 So.2d 238 (Fla. 3d DCA 1971). In appellants' brief, they assert the following:

The accident happened because Mr. Ward, lacking a forklift or other appropriate material handling device, attempted to pull a role of carpet out of the Carpet Transport truck by means of a rope tied to the carpet and the bumper of Mr. Ward's van. The pulling of the carpet caused one of the rolls to fall and injure Richardson.

If asked whether this injury arose out of the operation or use of a vehicle, any reasonable person ¹ would, after inquiring as to whether it was a trick question, answer in the affirmative. Appellants concede that this would be the proper answer if we were dealing with a coverage issue under an automobile's liability insurance policy. They urge, however, that since we are here dealing with an exclusionary clause, a stricter construction should be applied in order to find coverage. We disagree.

The court in Corbo considered a similar request for strict construction. In that case, the homeowner policy excluded injuries arising out of "the ownership, maintenance, operation, use ... of (1) automobiles ... while away from the premises...." The court stated:

Appellant contends that there is a distinction between the construction of basic coverage provisions which obtains in its automobile liability policy, and exclusions or exceptions to coverage in Gulf's homeowner's policy, and a stricter rule of construction applied when coverage is excluded.

We accept appellant's premise that exclusionary clauses are narrowly construed against the insurer but reject the attempted application to this case, observing that while rules of construction are applied where there is doubt or ambiguity, plain language requires no construction.

Corbo, 248 So.2d at 240, 241.

We agree with Corbo that if a policy provision is unclear, it should be construed strictly against the insurer. However, if a policy provision is clear and unambiguous, it should be enforced according to its terms whether it is a basic policy provision or an exclusionary provision. ² The policy provision in our case is not ambiguous. It clearly excludes injuries arising out of the use of a vehicle. The question in our case is not what the exclusionary clause means, but whether the alleged injury arose out of the use of a vehicle. Construction of the policy is not the issue; applying the admitted facts to the policy provision is our chore.

Appellants contend, and rightfully so, that if the use of the vehicle was merely incidental to the injury, then coverage would obtain. In that vein, it is suggested that since several strong men could pull the carpet out of the truck, the use of the vehicle was merely incidental to the injury. The analogy is flawed. Whether it was the vehicle or the several strong men that supplied the source of the energy, the injury still resulted because the carpet was pulled from the truck while Richardson was in the zone of danger. The source of the energy that did the pulling--the vehicle or the several strong men--was critical to the cause of the injury. Even though there would have been coverage if, in fact, the carpet had been unloaded by several strong men, it was not. That does not change the fact that since the vehicle was actually used in the unloading process in such a way as to cause injury, coverage did not apply.

There is a proper analogy involving the several strong men. If several strong men had grabbed hold of the carpet directly and, being unmindful of the location of Richardson, had pulled the carpet off the truck thereby injuring him, it would prove that the use of the rope was merely incidental to the injury. It is the fact that force was used to blindly pull the carpet off the truck, not the manner in which the force was applied to the carpet, that caused the injury.

Appellants suggest that their position is supported by American Modern Home Insurance Co. v. Rocha, 151 Ariz. 595, 729 P.2d 949 (Ct.App., 1986), and Lawver v. Boling, 71 Wis.2d 408, 238 N.W.2d 514 (1976). Such is not the case. Actually these cases are good examples of how to determine whether something is the cause of an injury or is merely incidental to an injury.

In Rocha, a vehicle and a rope were used to pull a tripod into an upright position. Several strong men could have done the same thing (with or without the rope). But the injury did not result from the force exerted to pull the tripod into position. It resulted when the tripod collapsed because of its faulty construction. It would have collapsed regardless of how it was brought to the upright position. Therefore, both the vehicle and the rope were merely incidental to the injury. But a different decision would have resulted had the tripod been dragged into someone, thereby causing injury.

In Lawver, a lift chair was hoisted into position by a rope tied to a vehicle. It could have been hoisted by several strong men. But it was not the hoisting that caused the injury. The negligence in Lawver was the selection of a defective rope to carry the load. The rope would have snapped regardless of how the lift chair was hoisted into position. The vehicle and the use of a rope (as opposed to the selection of a defective rope) were merely incidental to the injury. Again, there would have been a different result if Lawver had been pulled from the lift chair because the vehicle suddenly lurched forward.

Unlike our case in which the accident resulted only because Ward failed to make sure that Richardson was out of danger before he drove forward, both Rocha and Lawver involved injuries resulting clearly from negligence unrelated to the driving of the vehicle. In Rocha, the injury would not have occurred "but for" the use of the defective tripod that collapsed; in Lawver, the injury would not have occurred "but for" the use of a defective rope that unraveled and snapped.

In our case, the rope did not snap and the carpet was not defective. Everything occurred as planned--except that Ward did not permit Richardson to move to safety before pulling the van forward. Both Rocha and Lawver...