Waseca Mut. Ins. Co. v. Noska

• Decision Date: 01 April 1983
• Docket Number: No. Cl-82-609.,Cl-82-609.
• Citation: 331 NW 2d 917
• Parties: WASECA MUTUAL INSURANCE COMPANY, Appellant, v. David NOSKA and Donald Noska, individually and d.b.a. Don's Store, et al., Respondents.
• Court: Minnesota Supreme Court

331 N.W.2d 917 (1983)

WASECA MUTUAL INSURANCE COMPANY, Appellant, v. David NOSKA and Donald Noska, individually and d.b.a. Don's Store, et al., Respondents.

No. Cl-82-609.

Supreme Court of Minnesota.

April 1, 1983.

Rosenmeier & Anderson and Douglas P. Anderson, Little Falls, Blethen, Gage, Krause, Blethen, Corcoran, Berkland & Peterson, and Bailey W. Blethen, Mankato, for appellant.

Rider, Bennett, Egan & Arundel, Richard H. Krochock and Kevin C. Dooley, Minneapolis, for David Noska and Donald Noska, individually and d.b.a. Don's Store and Illinois Farmers Ins.

Peter Irvine, Perham, for David Noska.

David Stowman, Detroit Lakes, for Donald Noska.

Gregory Peters, Long Prairie, for Lawrence John Smith and Iona Marie Smith.

Richard N. Jeffries and Jeffrey R. Hannig, Moorhead, for Halan F. Killian and Myrna Killian.

Michael J. Ford, St. Cloud, for State Farm Fire and Cas. Co. and George A. Melin, Jr., et al.

Neal Lano, Grand Rapids, for Shelby Mut. Ins. Co.

Hubert H. Humphrey III, Atty. Gen., and Carl M. Conney, Sp. Asst. Atty. Gen., St. Paul, for State.

Richard C. Hefte, Fergus Falls, for Melvin Etzler, et al.

Heard, considered, and decided by the court en banc.

PETERSON, Justice.

I.

Waseca Mutual Insurance Company (Waseca Mutual), plaintiff in a declaratory judgment action, appeals from an order ruling that it, as homeowner's insurer for defendant David Noska (Noska) rather than Illinois Farmers Insurance Company (Illinois Farmers), the liability insurer of Noska's automobile, must defend and indemnify Noska for liability arising out of extraordinary fires caused by Noska's negligence. Waseca Mutual further appeals from the order determining that, under the unique facts of this case, its policy affords $300,000, rather than $100,000, of coverage.

Noska had for several years been employed by his father in the operation of his father's general retail business in Browerville, Minnesota. One of Noska's duties was to haul the accumulated garbage to a landfill several miles distant from the store. On Monday, April 21, 1980, Noska's shift commenced at 3 p.m., but, at about 2 p.m., he went to the store with his pickup truck, towing a trailer, on which he placed six uncovered 55-gallon steel barrels. The barrels contained burnt material, cans, bottles, and ashes of paper which had been burned some 2½ weeks earlier.

Noska then drove to his home, some 4 miles from the store, to pick up debris from brush and tree limbs that had been burned on April 16. (Although a ban on burning had been in effect, Noska had obtained a permit to burn the brush.) He shoveled the ashes into two of the barrels and then drove at a lawful speed of about 35 m.p.h. toward the landfill, located 6 miles from his house.

As Noska drove to the landfill, sparks flew from the barrels into which he had shoveled ashes at his home.¹ Apparently some of the coals from the brush had remained hot, and (fanned by air as the truck moved) rekindled, escaped from the truck, and started fires on the ground adjacent to the highway on which he was traveling. Noska was unaware of the smoke or sparks coming from the barrel until someone stopped him a short distance from the landfill. While he was dousing the barrels with water, he looked back and saw smoke in the direction from which he had just come. The fires, which apparently started at several points and burned for at least 9 days, covered thousands of acres of land and damaged or destroyed numerous farm properties and homes. Claims by the affected property owners total more than half a million dollars, with other claims remaining to be filed. The State of Minnesota has made a claim in excess of $100,000 for fire-fighting expenses.

Three insurance policies arguably would have provided coverage for Noska's liability. Noska's homestead was insured under a homeowner's policy issued by Waseca Mutual. The policy contained the standard automobile exclusion denying coverage for claims arising out of use, maintenance, operation, loading, and unloading of an automobile. Noska's truck was insured under an automobile liability policy issued by Illinois Farmers. The store, owned by Noska's father, was covered by a business liability policy also issued by Illinois Farmers.² Additional factual details concerning the relevant policy limits and the effective date of the homeowner's policy will be stated in section II of this opinion.

The trial court ruled that the act of placing live embers in the barrels was negligent and that the fires arose from this act; as a result, the court concluded that the fires did not "arise out of the use of a motor vehicle." While we affirm the trial court's findings insofar as they determined that one cause of the fires was nonvehicle-related, our review of the record leaves us with a "definite and firm conviction" that the losses also were causally related to Noska's driving his truck at 35 m.p.h. while towing uncovered barrels containing live embers. Cf. National Farmers Union Property & Casualty Co. v. Nyborg, 295 Minn. 565, 204 N.W.2d 438 (1973). We are completely persuaded that the extensive fires would not have happened but for use of the vehicle to transport the embers. Thus, the fires also arose from use and operation of the vehicle. This case involves an extraordinary fact pattern: two separate and independent acts concurred to cause the accident, and each act was necessary to cause the damage. It is in this context that we are called upon to determine whether the homeowner's policy, the automobile policy, or both, afford coverage.

1. We have construed the phrase "arising out of maintenance or use of a motor vehicle," in the context of automobile liability policies, in several recent cases,³ and have established that, for coverage to exist, there must be some causal connection between the injury and the use of the vehicle for transportation purposes. Tlougan v. Auto-Owners Ins. Co., 310 N.W.2d 116, 117 (Minn.1981). In Tlougan, we described the requisite connection between use and injury as "something less than proximate cause in the tort sense and something more than the vehicle being the mere situs of the injury," and stated that the connection was established if "the injury is a natural and reasonable incident or consequence of the use of the vehicle." Id. To further clarify the term, in Holm v. Mutual Service Casualty Ins. Co., 261 N.W.2d 598, 603 (Minn.1977), we adopted the requirement of the Mississippi Supreme Court that "the vehicle itself must be an active accessory" to the injury sustained. See National Mutual Casualty Co. v. Clark, 193 Miss. 27, 40, 7 So.2d 800, 805 (1942).

The connection between use of a vehicle and injury was also discussed at length in Associated Ind. Dealers, Inc. v. Mutual Service Ins. Co., 304 Minn. 179, 229 N.W.2d 516 (1975), in which we stated:

In general terms, it has been established that such relationship need not be a proximate cause in the strict legal sense. Rather, it is sufficient to establish that the injury or loss "was a natural and reasonable incident or consequence of the use of the insured vehicle." It has been said that the causal connection must be "reasonably apparent," and that "the mere fact that the use of the vehicle preceded the harm which was later sustained is not sufficient to bring such harm within the coverage of the policy." It has also been held that the policy term "arising out of" means "originating from," or "having its origin in," "growing out of," or "flowing from."

304 Minn. at 181-182, 229 N.W.2d at 518 (footnotes omitted). We also noted that "in any event, each case presenting such a question must, to a great degree, turn on the particular facts presented." Id.

Given that use of the motor vehicle was a contributing, indeed necessary, cause of the fire, we hold that the fires did "arise out of use of a motor vehicle" as that phrase appears in the automobile policy. We therefore reverse the order of the district court insofar as it precluded recovery from Illinois Farmers, the automobile liability insurer.

2. The next issue is whether our conclusion that the injuries arose out of use of the truck for purposes of establishing coverage under Noska's automobile liability policy is determinative of whether the truck was "used" so as to exclude coverage under the homeowner's policy. We conclude that recovery against both insurers may properly be permitted where two independent acts, one vehicle-related and one nonvehicle-related, were involved.⁴ We are guided to this conclusion by one of our prior opinions and by opinions of courts in California, Wisconsin, Louisiana, and Illinois, which have reached the same conclusion.

In Woodrich Constr. Co. v. Indemnity Ins. Co., 252 Minn. 86, 89 N.W.2d 412 (1958), Woodrich, a general contracting firm, and its general business liability insurer had satisfied a judgment against Woodrich, and were seeking contribution from Woodrich's automobile liability insurer (and two other insurers). Woodrich had been held liable for injuries sustained when a dumptruck, while on a turntable which Woodrich had negligently located, backed over a person in response to negligent signaling by a Woodrich employee. The trial court ruled, and we affirmed, that on the facts in the case, all four insurers were liable. We noted that Woodrich was the sole tortfeasor, 252 Minn. at 89, 89 N.W.2d at 415, and identified two distinct acts on Woodrich's part, one vehicle-related and one nonvehicle-related, which combined to cause the injury. We stated, "Clearly, the negligence of Woodrich in the placement of the equipment and negligence in exercising supervisory control over the truck's movements were inextricably interwoven as concurrent proximate causes of the accident." 252 Minn. at 93, 89 N.W.2d at 417. We raised as an issue whether coverage under a general business liability policy and an automobile liability policy could overlap and decided in the affirmative. After noting the "business...