State Farm Fire & Cas. Co. v. Kohl

• Decision Date: 20 May 1982
• Citation: 131 Cal.App.3d 1031,182 Cal.Rptr. 720
• Parties: STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff and Respondent, v. Nancy Carol KOHL, Dennis Gregory Kohl, Houston General Insurance Company, Defendants and Appellants. Civ. 63707.
• Court: California Court of Appeals Court of Appeals

Page 720

182 Cal.Rptr. 720

131 Cal.App.3d 1031

STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff and Respondent, v. Nancy Carol KOHL, Dennis Gregory Kohl, Houston General Insurance Company, Defendants and Appellants.

Civ. 63707.

Court of Appeal, Second District, Division 2, California.

May 20, 1982.

Rehearing Denied June 9, 1982.

Hearing Denied July 22, 1982.

Cohen, England, Whitfield & Osborne by Thomas B. Osborne, Robert A. McSorley, Oxnard, for defendants and appellants.

Lawler & Ellis by Margot Davis, Ventura, for plaintiff and respondent.

Henderson & Smith by David L. Allen, Ventura, for Houston General Ins. Co.

COMPTON, Associate Justice.

In this case we deal with yet another dispute concerning the coverage provided by the liability provisions of a "Homeowners" insurance policy. The trial court, in a declaratory relief action initiated by State Farm Fire and Casualty Company, determined that under the circumstances the policy did not provide coverage. We reverse.

The issue of coverage has its origin in a personal injury action filed by Nancy Kohl and her husband Dennis Kohl (Ventura County Sup.Ct.No. 66719) against one John Mahnken. Defendant, John Mahnken, was insured under two policies, i.e., the homeowner's policy referred to above, and an automobile liability policy issued by State Farm Auto Insurance Company. ¹

The homeowner's policy has a limit of $100,000, while the auto policy has a limit of $25,000. The two policies compliment each other in that the auto policy covers Mr. Mahnken for liability arising out of the ownership and use of the automobile, while the homeowner's policy provides him with general liability coverage excluding that arising out of the ownership and use of an automobile.

In its complaint for declaratory relief, State Farm alleged that John Mahnken, its insured, had made demand on it to defend and indemnify him under the homeowner's policy against any liability he may suffer as a result of the personal injury action. Mahnken and the Kohls were joined as defendants in the declaratory relief action.

At this juncture, the underlying personal injury action has not been tried. The resolution of the coverage dispute thus must be accomplished by accepting as true the allegations contained in the complaint filed by the Kohls in their action against Mahnken.

These allegations may be summarized as follows. Nancy Kohl was riding a motorcycle in an easterly direction along Ventura Boulevard when John Mahnken, who was driving a pickup truck in a westerly direction, made a left turn in front of her. She collided with the truck and was thrown to the pavement suffering serious injuries.

After the accident, Mahnken alighted from his truck and, with the aid of a bystander ², proceeded to drag Nancy and the motorcycle from the position where she was lying in the street. According to the complaint this "dragging" was done in such a negligent fashion that it caused additional serious injury to Nancy.

At the outset, we dispose of the issue of policy terminology. The auto policy in its coverage clause uses the term "accident" ³ while the homeowner's policy uses the term "occurrence." ⁴ Inherent in both policies, of course, is the provision that the policy limits apply to each accident or occurrence.

In our view, for the purposes of this case, the terms "accident" and "occurrence" are synonymous and what semantical difference may exist is not of sufficient substance to provide a basis for resolving the issue favorably to State Farm.

In determining whether, under a particular set of circumstances, there was one accident or occurrence, the so-called "causation" theory is applied. Hence a single uninterrupted course of conduct which gives rise to a number of injuries or incidents of property damage is one "accident" or "occurrence". On the other hand, if the original cause is interrupted or replaced by another cause, then there is more than one "accident" or "occurrence". (Liberty Mut. Ins. Co. v. Rawls, 404 F.2d 880; Saint Paul-Mercury Indemnity Co. v. Rutland, 225 F.2d 689; Olsen v. Moore, 56 Wis.2d 340, 202 N.W.2d 236.)

Our recent opinion in Spargur v. Park, 128 Cal.App.3d 469, 180 Cal.Rptr. 257, presented a problem somewhat analogous to the one now before us. In that case a police officer stopped a motorist for speeding. After the officer had directed the driver to stop at a particular spot he parked his motorcycle in front of the car and dismounted. The driver failed to stop and continued on striking the officer and injuring him. We held that the conduct of the driver in striking the officer could amount to an independent and separate tort which would be the basis for liability, notwithstanding the "fireman's rule" which would bar liability based upon the antecedent speeding violation which brought the officer to the point where he was exposed to the injury.

Thus under the circumstances of the case at bench, it seems clear to us that there were, to use the terms of the policy, both an "accident" within the purview of the auto policy and an "occurrence" within the purview of the homeowner's policy.

On the other hand, however, it is clear that under general tort principles, the additional injury suffered by Nancy as a result of the conduct of Mahnken and Bewley in negligently "dragging" her would be covered by the automobile policy, since that subsequent negligence would be a foreseeable consequence of the original accident. From that viewpoint it would follow that the subsequent additional injuries arose out of the "use" and "operation" of the motor vehicle (see United Services Automobile Assn. v. United States Fire Ins. Co., 36 Cal.App.3d 765, 111 Cal.Rptr. 595) thus invoking the coverage clause of the auto policy.

At first blush that would appear to end the inquiry. Recent case law, however, has established that coverage by an automobile liability policy does not ipso facto invoke the similarly worded exclusion clause of a homeowner's policy. "... the fact that an accident has been found to 'arise out of the use' of a vehicle for purposes of an automobile policy is not necessarily determinative of the question of whether that same accident falls within a similarly worded exclusionary clause of a homeowner's policy." (State Farm Mut. Auto. Ins. Co., v. Partridge, 10 Cal.3d 94, at p. 102, 110 Cal.Rptr. 1, 514 P.2d 953.)

Thus the question narrows as to one of whether the post accident conduct of Mahnken was so intimately involved with the use of the vehicle and the part of a course of uninterrupted conduct as to require the finding that it "arose" out of such use for the purposes of the exclusionary clause or, on the other hand, was independent non-vehicular conduct which replaced or concurred with the vehicle use as a cause of the additional injury.

State Farm of course points to the exclusionary clause in its homeowner's policy and contends that any injury which Nancy suffered necessarily arose out of Mahnken's operation and use of a motor vehicle. Nancy and Dennis, on the other hand, contend that the conduct of Mahnken in dragging her several feet in her injured condition, was an independent act of negligence unrelated to the use of the vehicle and that liability therefor should be considered as if Mahnken had been a bystander uninvolved in the original collision.

It is worth noting that under State Farm's theory, if at trial Mahnken were found not to be negligent in the initial collision, then neither policy would cover the additional injuries which we must, at this point, assume Nancy suffered.

In United Services Automobile Assn. v. United States Fire Ins. Co., supra, an insured with both automobile and homeowner's coverage, attempted to start an automobile by pouring gasoline from a can into the carburetor. A fire erupted igniting the gasoline can. The insured threw the gasoline can which struck and burned a nearby individual. It was there held that the injury arose out of the "use" of the vehicle in the attempt to start it and that the homeowner's policy did not provide coverage.

The court in United Services Automobile Assn. stated 36 Cal.App.3d at page 771, 111 Cal.Rptr. 595, "In the instant case while the activity involving the vehicle was peripheral it was not an activity wholly disassociated from, independent of and remote from its use. It was ... an activity utilizing the ... vehicle in the manner intended or contemplated by the insured. Accordingly, there is a close sequential relationship between the vehicle and the accident."

State Farm Fire & Cas. Co. v. Camara, 63 Cal.App.3d 48, 133 Cal.Rptr. 600, involved an individual, with a homeowner's policy containing the identical exclusion which is present here, who converted a Volkswagen into a "dune buggy." A passenger injured in an accident in the dune buggy sued the insured for negligent design and construction. The Court of Appeal for the Third District gave effect to the exclusion clause holding that the homeowner's coverage applied only to negligence which existed independently of the ownership, use or maintenance of the vehicle.

In National Indemnity Co. v. Farmers Home Mutual Ins. Co., 95 Cal.App.3d 102, 157 Cal.Rptr. 98, this court gave effect to the exclusionary clause where the driver of a vehicle was sued for wrongful death of a child who had been a passenger in the car. The child after exiting the parked vehicle ran into the street where he was struck by another vehicle. We rejected the claim that the negligent failure to supervise the child was non-vehicular conduct. Our reasoning was that the injury occurred during the unloading of the vehicle.

While the foregoing decisions determine that under the particular facts the alleged tortious conduct was vehicle related, they do not rule out the possibility that an act of negligence, independent of the use of the vehicle which would invoke coverage of the homeowner's policy could be found to exist even though at one point in the chain of events...