West Bend Mut. Ins. Co. v. Milwaukee Mut. Ins. Co.
| Decision Date | 11 April 1986 |
| Docket Number | No. C0-85-177,C3-85-500,C0-85-177 |
| Citation | 384 N.W.2d 877 |
| Parties | WEST BEND MUTUAL INSURANCE COMPANY, petitioner, Appellant, v. MILWAUKEE MUTUAL INSURANCE COMPANY, Louis Hager, et al., Thomas Graham, et al., The City of Elysian, Mark Neste, d.b.a. Neste Ambulance Service, Immanuel-St. Joseph's Hospital of Mankato, Inc., Respondents. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
A vehicle is not being "operated by" a passenger who grabs the steering wheel of a moving car without permission or plausible justification, so that the vehicle responds almost immediately by going out of control; consequently, the homeowner's policy exclusion, which requires a car to be "operated by" the insured, does not exclude homeowner's coverage for the passenger.
Dale M. Wagner, Minneapolis, for appellant.
Willard L. Converse, St. Paul, for Milwaukee Mut.
R. Michael Regan, Mankato, for Hager.
John A. Kottke, St. Paul, for Graham.
John H. McLoone, IV, Waseca, for Neste.
Raymond C. Krause, Mankato, for City of Elysian.
R.G. Johnson, Mankato, for Immanuel-St. Joseph's Hosp. of Mankato, Inc.
Marcus J. Christianson, Minneota, for Northstar Mut. Ins. Co.
Robert W. Murnane, St. Paul, for State Farm Fire and Cas.
Heard, considered, and decided by the court en banc.
The court of appeals held that a driver's personal injury claim against a passenger who grabbed the steering wheel of the moving automobile was covered by the passenger's homeowner's policy, the automobile exclusion in the homeowner's policy not being applicable. We affirm.
On December 11, 1981, Thomas Graham, age 19, was driving his Volkswagen Beetle on a township gravel road, with his girlfriend, Diane Hager, age 18, a front-seat passenger. As Thomas was shifting from third to fourth gear with one hand on the steering wheel and the other on the gearshift, Diane grabbed the steering wheel, apparently in an attempt to make Thomas stop so the two could talk and resolve a misunderstanding. The car went off the road and rolled over, and Thomas Graham was severely injured. Thereafter, Graham sued, among others, Diane Hager, alleging her negligence contributed to cause his injuries.
Diane resided with her parents, who had homeowner's insurance with West Bend Mutual Insurance Company and auto liability insurance with Milwaukee Mutual Insurance Company. After Graham commenced his personal injury action, plaintiff-appellant West Bend brought this declaratory judgment action, naming Milwaukee Mutual, Diane and her father, and others, as defendants, to determine which insurer, if either, had coverage for the claim against Diane Hager. The trial court ruled that the claim was covered by West Bend's homeowner's policy but not by Milwaukee Mutual's automobile policy. The court of appeals affirmed. West Bend Mutual Insurance Co. v. Milwaukee Mutual Insurance Co., 372 N.W.2d 438 (Minn.Ct.App.1985). We granted West Bend's petition for further review.
The trial court ruled that Diane Hager's use of the Graham automobile was without permission of the owner and, therefore, Milwaukee Mutual did not have coverage. That ruling has not been appealed to this court and is the law of the case. The only issue, therefore, is whether there is coverage for Diane Hager under the homeowner policy. The parties agree there is homeowner's coverage unless West Bend's automobile exclusion applies. This exclusion reads:
We do not cover bodily injury or property damage arising out of the ownership, maintenance, or use of
* * *
* * *
(b) any land motor vehicle designed for use on public roads, other than a recreational land motor vehicle, owned or operated by or rented or loaned to an insured person.
So the question becomes: When Diane Hager, West Bend's insured, grabbed the steering wheel, did the resulting injury to the driver Thomas Graham "aris[e] out of the * * * use of * * * [a] motor vehicle * * * operated by * * * an insured person"?
The term "arising out of the use of" a vehicle has a rather broad sweep. It may include use by a passenger. See Haagenson v. National Farmers Union Property & Casualty Co., 277 N.W.2d 648 (Minn.1979). The phrase has been interpreted to require "some causal connection between the injury and the use of the vehicle for transportation purposes," Waseca Mutual Insurance Co. v. Noska, 331 N.W.2d 917, 920 (Minn.1983); or that the vehicle be an "active accessory" to the injury. Holm v. Mutual Service Casualty Insurance Co., 261 N.W.2d 598, 603 (Minn.1977). Here, when Diane Hager grabbed the steering wheel, she obviously was using the automobile. If West Bend's automobile exclusion were limited to the "arising out of the use of" language, there seems little doubt that Graham's injuries would "arise out of the use of" a vehicle by his passenger. 1 For West Bend's exclusion to apply, however, Diane Hager's use must also have occurred while the vehicle was "operated by" her. So, as the district court correctly observed, the question becomes whether the Volkswagen was being "operated by" Diane Hager when she grabbed the steering wheel.
West Bend's policy does not define "operated by." West Bend seems to argue that "operating" means essentially the same as "using." We disagree. Operation of a motor vehicle necessarily involves its use, but it does not follow that any use of an automobile is necessarily operation of that vehicle. Cf. Waldbillig v. State Farm Mutual Automobile Insurance Co., 321 N.W.2d 49, 51 (Minn.1982) (). Defendant-respondents Hager argue that common sense suggests the person driving a vehicle is the person operating it. But even if this is so, what does it mean to drive (or operate) a motor vehicle?
Driving and operating ordinarily refer, we think, to manipulation of the motor vehicle's mechanical features to control the vehicle's movement. Anyone applying a car's accelerator and brakes controls speed, while whoever steers controls direction. Operating a manual transmission involves aspects of both speed and direction. A person sitting in the driver's seat, hands on the wheel and foot on the pedal, controlling both speed and direction, is undoubtedly "operating" the vehicle. Here, Thomas Graham was operating the motor vehicle. Was Diane Hager also...
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