Morari v. Atlantic Mut. Fire Ins. Co.

Decision Date23 April 1970
Docket NumberNo. 9803--PR,9803--PR
Citation105 Ariz. 537,468 P.2d 564
PartiesStephen MORARI, Appellant, v. ATLANTIC MUTUAL FIRE INSURANCE COMPANY, a corporation, Appellee.
CourtArizona Supreme Court

Yankee & Bernstein, by James A. Yankee, Phoenix, for appellant.

Evans & Kunz, by Donald R. Kunz, Phoenix, for appellee.

STRUCKMEYER, Vice Chief Justice.

This action was brought by Atlantic Mutual Fire Insurance Company, appellee seeking a declaratory judgment to determine its liability under a policy of insurance which it had issued to one Philip Hallabrin. Farmers Insurance Exchange and Stephen Morari were joined as defendants in the lower court. Judgment was entered in favor of Atlantic Mutual Fire Insurance Company, declaring that its policy did not provide coverage for injuries inflicted by the accidential discharge of a gun and that the Farmers Insurance Exchange policy did provide coverage. Neither Hallabrin nor the Farmers Insurance Exchange has appealed and Stephen Morari has. The Court of Appeals reversed, 10 Ariz.App. 142, 457 P.2d 304, and we granted review. Opinion of the Court of Appeals vacated.

In 1966 Philip Hallabrin was the owner of a pickup truck and camper. He went deer hunting with two friends, Stephen and John Morari. On the morning of October 18th, as they were driving down a forest road, a deer was seen. Hallabrin, the driver, stopped the pickup, stepped outside and, with his feet on the ground, reached behind the seat to get his gun. He testified:

'I don't recall just where I grabbed the the gun, but just the moment I got hold of it the gun went off.'

Stephen Morari was shot in the leg and subsequently amputation was required. He brought an action in negligence against Hallabrin.

Hallabrin had two policies of insurance, one with Farmers Insurance Exchange, whose policy is the standard vehicle liability insurance policy, and a second, with Atlantic, whose policy is a comprehensive personal liability policy commonly referred to as a 'homeowner's policy.' The purpose of the present action by Atlantic is to determine its liability on its comprehensive policy under the foregoing facts.

The Farmers policy provided liability insurance for bodily injury 'which the insured becomes legally obligated to pay' because of the 'operation' and 'use' of the Hallabrin vehicle. The word 'use' in the policy is defined as including 'the loading and unloading thereof.' 'Loading and unloading' are well understand English words meaning, respectively, 'to place cargo in' and 'to take cargo from.' See Webster's Third New International Dictionary. It has been repeatedly held, as the California court said in Columbia Southern Chemical Corp. v. Manufacturers and Wholesalers Indemnity Exchange, 190 Cal.App.2d 194, 11 Cal.Rptr. 762, 767:

'The term 'loading and unloading' must be understood as expanding the coverage intended by the word 'use' or 'using', and is not a term of restriction * * *.'

General Accident Fire and Life Assurance Corp. v. Brown, 35 Ill.App.2d 43, 181 N.E.2d 191 (1962); Maryland Casualty Co. v. New Jersey Manufacturers (Casualty) Insurance Co., 48 N.J.Super. 314, 137 A.2d 577 (1958) affirmed 28 N.J. 17, 145 A.2d 15.

Various courts have found liability under the 'loading and unloading' clause in such circumstances as these: In Raffel v. Travelers Indemnity Co., 141 Conn. 389, 106 A.2d 716 (1954), for injuries suffered by a ten-year-old child where the driver of the insured vehicle unloaded a heavy roll of lineoleum in an upright position and some hours later the roll fell and struck the child. In Connecticut Indemnity Co. v. Lee, 1 Cir., 168 F.2d 420 (applying Massachusetts law) where the driver of the insured vehicle in preparing to unload opened the doors to a sidewalk elevator and a pedestrian fell into the open elevator shaft. In Allstate Insurance Co. v. Valdez, D.C., 190 F.Supp. 893 (1961) (applying Michigan law) the owner of an automobile preparatory to placing a shotgun in the trunk was ejecting shells from its chamber and slipped. The gun discharged, killing one of the owner's companions.

Before proceeding further, several points basic to this appeal should be clarified. First, agreements of insurance such as are here involved are contracts by the insurer to pay for bodily injuries which the insured becomes legally obligated to pay. These are liability contracts and not that of indemnity. See Merchants Mutual Auto Liability Insurance Co. v. Smart,267 U.S. 126, 45 S.Ct. 320, 69 L.Ed. 538; and see Anno. 41 A.L.R. 507. The insurance is to pay for the negligent acts of the insured committed during the operation or use of the motor vehicle and, of course, included negligent acts committed during loading and unloading. It should be emphasized: Liability arises out of negligent acts in the use of motor vehicles which proximately cause the accident and injuries.

Second, while it is often said that there must be a causal relationship between the accident and the motor vehicle, see 160 A.L.R. 1259, 1272, the word 'causal' is not to be confused with proximate causation. Inanimate objects do not cause accidents except possibly in a very loose sense, such as, for example, the unforeseeable failure of machinery. It is the act of the person in control of the object proximately causing the accident which constitutes negligence. More properly it should be said as is stated in 7 Am.Jur.2d 397, 398:

'* * * in order for an accident to come within the 'loading and unloading' clause of a policy there must be a Connection between the accident and the use of the vehicle insured.' (Emphasis supplied.)

In the sense that there must be a connection between the accident and the use of the vehicle, courts have said there must be a causal relationship. For example, in Columbia Southern Chemical Corp. v. Manufacturers and Wholesalers Indemnity Exchange, 11 Cal.Rptr. at page 767:

'* * * it is not necessary that the injury be directly and proximately caused, in the strict legal sense, by the activities of the motor vehicle itself. Obviously, when the motor vehicle is at rest for loading and unloading, there can be little, if any, activity of the motor vehicle proper.'

This brings us to an examination of Atlantic's policy and the position of appellant Morari. Atlantic's comprehensive liability policy is an agreement to 'pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury * * *.' Were this all, obviously Atlantic would be liable if Hallabrin's negligence in the use of his pickup truck proximately caused Morari's injuries. But it is not. There is a specific exclusionary clause in this language:

'* * * this policy does not apply * * * to the ownership, maintenance, operation, use, loading or unloading of (1) automobiles * * * while away from the (owner's) premises or the ways immediately adjoining, * * *'.

This exclusion of liability in the operation, use, loading or unloading of automobiles while away from the owner's premises if applied literally would seem to resolve Atlantic's liability.

However, Morari advances two arguments; first, the exclusionary clause being a limitation on liability must be narrowly construed and, second, the exclusion has no application to this case because, as he states:

'The insured's negligence was complete and did not involve the pickup truck nor its unloading * * *. The unloading was not a cause * * *.'

We accept Morari'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, Kilpatrick v. Superior Court (Rozar), 105 Ariz. 413, 466 P.2d 18, filed February 27, 1970. The words of the exclusionary clause cannot be deleted from this contract simply because it serves Morari's interest better that way.

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....

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