Morari v. Atlantic Mut. Fire Ins. Co.
| Decision Date | 24 July 1969 |
| Docket Number | No. 1,CA-CIV,1 |
| Citation | 457 P.2d 304,10 Ariz.App. 142 |
| Parties | Stephen MORARI, Appellant, v. ATLANTIC MUTUAL FIRE INSURANCE COMPANY, a corporation, Appellee. 906. |
| Court | Arizona Court of Appeals |
Yankee & Bernstein, by James A. Yankee, Phoenix, for appellant.
Evans & Kunz, by Donald R. Kunz, Phoenix, for appellee.
Appellant, Stephen Morari, sustained a gunshot wound, while he was alighting from a fellow hunter's truck, when a gun 'grabbed' by the fellow hunter for removal from the truck accidentally discharged. The question before us is whether the injury is covered by the comprehensive personal liability provisions of a 'homeowners' policy issued by the appellee. We hold, consistent with our recent decision in the closely analogous case of Brenner v. Aetna Insurance Company, 8 Ariz.App. 272, 445 P.2d 474 (1968), that coverage exists.
Morari, his brother, and Philip Hallabrin were on a deer-hunting expedition in Northern Arizona. On the day of the accident, they were riding in a pickup truck owned and driven by Hallabrin, looking for a deer for Morari to shoot. If a deer was seen, Hallabrin was either going to 'help' shoot it or lend Morari his rifle. The Hallabrin rifle was in the compartment behind the seat of the truck. Hallabrin did not think it was loaded. A deer was spotted, and Hallabrin stopped the truck, got out, and reached for his rifle. As soon as he 'grabbed' it, the gun discharged, injuring Morari, who was beginning to get out of the car on the passenger's side.
At the time, Hallabrin was the named insured under what is called a 'homeowners' policy issued by the appellee, Atlantic Mutual Fire Insurance Company. The policy contains the following pertinent insuring clause:
'* * * To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury * * *'
The policy also contains the following exclusionary clause:
'Section II of this Policy Does Not Apply:
'(b) under Coverages E and F, to the ownership, maintenance, operation, use, loading or Unloading of (1) automobiles * * * while away from the premises or the ways immediately adjoining * * *.' (Emphasis added.)
Hallabrin was at the same time also the named insured under an automobile liability policy issued by Farmers Insurance Exchange containing the usual insuring clause obligating the insurer to pay for bodily injury '* * * arising out of the ownership, maintenance, or use * * *' of the insured's automobile.
The appellee, Atlantic, commenced this declaratory judgment proceeding against Morari, Hallabrin, and Farmers Insurance Exchange, alleging that the injury was '* * * caused by the attempt of * * * Hallabrin, to remove the said rifle from the said truck,' and seeking an adjudication that it had no liability under its policy and no duty to defend a claim by Morari against Hallabrin. The answers filed by Morari and Farmers Insurance Exchange showed that they had reached a settlement prior to commencement of the action and that a release had been executed by Morari in favor of Farmers expressly reserving the right to go against Hallabrin. Atlantic moved for summary judgment. At the argument on the motion, it was stipulated that the matter was to be submitted to the trial judge for decision '* * * on the merits' on the basis of the existing record, which included statements and depositions of the persons involved, and a trial setting was canceled. Thereafter, the trial judge rendered a judgment declaring that appellant's injury was covered by the automobile policy issued by Farmers, but was not covered by the homeowners policy issued by Atlantic. Neither Farmers nor Hallabrin is a party to this appeal.
Judgment was rendered by the trial judge in this case prior to our decision in the Brenner case, Supra. In Brenner, the injured person was riding in the backseat of an automobile en route home from a hunting trip when a gun in the hands of a companion discharged. Our decision that there was coverage under a homeowners policy but not under an automobile liability policy was based primarily upon the lack of a causal connection between the injury and 'use' of the car: 'This injury resulted from the use of a gun, not the use of a car.' 8 Ariz.App. 277, 445 P.2d 479. Our Supreme Court initially granted review in Brenner, see 445 P.2d 474, but the grant was later vacated as improvident and review was denied. See 8 Ariz.App. 272.
The appellee, Atlantic, in this case, has striven mightily in an effort to show that Brenner is not controlling. The pertinent policy provisions, however, are in all significant respects identical. The only factual difference is that, in this case, the vehicle was stopped and Hallabrin was in the act of removing his rifle from it. Appellee points to the terms of the exclusionary clause, quoted above, making the policy inapplicable to the 'unloading' of automobiles and argues that the judgment in its favor imports a factual finding consistent with its allegation that the injury Was caused by Hallabrin's 'removing' or attempt to 'remove' the gun from the truck. The argument is completed by the assertion, or assumption, that such a removal is an 'unloading' within the terms of the exclusionary clause.
There is no definition set forth in the policy for the term 'unloading.' In the absence of definition, words used in an insurance policy will be defined '* * * in the common sense terms of the average layman * * *' Malanga v. Royal Indemnity Company, 101 Ariz. 588, 591, 422 P.2d 704, 707 (1967); Hartford Fire Ins. Co. v. Electrical Dist. No. 4, 9 Ariz.App. 374, 376, 452 P.2d 539, 541 (1969). See also Droz v. Paul Revere Life Insurance Co., 1 Ariz.App. 581, 583, 405 P.2d 833, 835 (1965), and Prudential Insurance Company of America v. Barnes, 285 F.2d 299 (9th Cir. 1960) (arising in Arizona).
We are not persuaded that the average layman would regard Hallabrin's act of removing the rifle from the truck as an 'unloading' of his truck. Dictionary definitions of the verb 'unload' include 'to take the cargo from' and 'to relieve of...
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Morari v. Atlantic Mut. Fire Ins. Co.
...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 In 1966 Philip Hallabrin was the owner of a pickup truck and camper. He went deer h......
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U.S. Fidelity & Guaranty Co. v. Western Fire Ins. Co.
...injury did not 'arise out of the use' of the automobile. Similar cases which reached the same result are Morari v. Atlantic Mutual Fire Insurance Company, 10 Ariz.App. 142, 457 P.2d 304, where a truck containing three hunters stopped when a deer was spotted, one of the hunters got out and g......