Farmers Ins. Exchange v. Superior Court
Filed 10/1/13 Farmers Ins. Exchange v. Superior Court CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
FARMERS INSURANCE EXCHANGE,
Petitioner,
v.
THE SUPERIOR
COURT OF LOS
ANGELES COUNTY,
Respondent;
JOSE LUIS CERVANTES BAUTISTA
et al.,
Real Parties in Interest.
B248324
(Los Angeles
County
Super. Ct.
No. BC477720)
ORIGINAL
PROCEEDINGS in mandate. Salvatore Sirna,
Judge. Petition granted.
Archer
Norris, Limor Lehavi, Mariyetta A. Meyers-Lopez; Greines, Martin, Stein &
Richland, Robert A. Olson and Feris M. Greenberger for Petitioner.
No
appearance for respondent.
Louis G.
Fazzi and Fernando J. Bernheim for Real Parties in Interest.
______________________
Farmers Insurance Exchange (Farmers) petitions this court
for a writ of mandate directing the trial court to set aside its order denying
Farmers’ motion for summary adjudication.
Farmers brought this action for declaratory
relief and sought summary adjudication on the ground there was no potential
for coverage under the homeowners insurance policy it issued to its insureds,
real parties in interest Jose Luis Cervantes Bautista and Sara Bautista. We agree with Farmers and grant the petition.
FACTUAL AND PROCEDURAL BACKGROUND
Farmers
issued a homeowners insurance policy for a house in Pomona
to Jose Bautista and Lourdes M. Sanchez.
Sara Bautista, Jose’s wife, was an additional insured under the
policy. The policy provided personal
liability coverage in the amount of $300,000 per occurrence under Coverage E, which
states: “We pay those damages which an
insured becomes legally obligated to pay because of bodily injury
. . . resulting from an occurrence to which this coverage applies.†(Bold omitted.) The policy excludes from Coverage E bodily
injury that “7. results from the ownership, maintenance, use, loading or
unloading of . . . b. motor
vehicles . . . .â€
(Bold omitted.)
Farmers
also issued a vehicle insurance policy covering a 2004 Dodge pickup truck owned
by Jose Bautista. The policy provided
coverage for bodily injury in the amounts of $30,000 per person and $60,000 per
occurrence. Under Coverage A, the policy
provided: “We will pay damages for which
any insured person is legally liable because of bodily injury to any person
. . . arising out of the ownership, maintenance or use of a private
passenger car, a utility car, or a utility trailer.â€
On August
17, 2007 the Bautistas’ granddaughter, Valerie Bautista, who was less than two
years old, was killed in the driveway of the Bautistas’ house when Jose
Bautista ran over her with his pickup truck.
Sara Bautista routinely allowed the grandchildren to greet Jose at his
truck when he came home. She knew that
she needed to take extra precautions and supervise the younger grandchildren,
including Valerie, when they went to greet Jose, to keep them out of what the
Bautistas call the “zone of danger.†On
the day of the accident, however, Valerie “got out of the house without [Sara]
knowing it.†She walked in front of
Jose’s truck, and he ran her over.
On August
14, 2009 Valerie’s mother, Kenia Casaya, and her sisters filed an action
against the Bautistas and Valerie’s father, Jose Luis Bautista, Jr., for
supervision. Their second amended
complaint, which included Valerie’s father as a plaintiff rather than a
defendant, contained two causes of action, the first for negligence in
operating a motor vehicle and the second for general negligence. In the second cause of action, the plaintiffs
alleged that “[d]efendant SARA BAUTISTA, so negligently cared for, supervised,
watched, managed, controlled and failed to care for, supervise, watch, manage
and control decedent Valerie Bautista, who was a[t] the time an infant under the
age of two (2) years, as to allow decedent Valerie Bautista to leave
Defendant’s [sic] home unsupervised,
where she was run over and killed by Defendant JOSE LUIS BAUTISTA, while in the
driveway of Defendants’ home.â€
(Underscoring omitted.)
Farmers
provided a defense to the Bautistas in the Casaya action. On July 6, 2012 the parties resolved that
action by a stipulated judgment in the amount of $360,000. In addition, the plaintiffs signed a covenant
not to execute on the judgment in exchange for an assignment of action by the
Bautistas.
Farmers
then filed this action against the Bautistas for declaratory relief. Farmers sought a declaration that it was not
obligated to provide coverage under the Bautistas’ homeowners insurance policy
with respect to the Casaya action for two reasons: (1) The motor vehicle exclusion in
the homeowners policy precluded any potential coverage because all of the
claims in the Casaya action arose out of Jose Bautista’s use of a motor
vehicle; and (2) the homeowners policy excluded coverage for residents of the
insureds’ household, and Valerie was a resident of the Bautistas’ household at
the time of the accident. The Bautistas
filed a cross-complaint for breach of the implied covenant of good faith and
fair dealing and for fraud based on Farmers’ failure to pay benefits due under
both the homeowners and automobile insurance policies.
Farmers
filed a motion for summary adjudication on the complaint and the Bautistas’
cross-complaint on the ground there was no potential for coverage and thus no
duty to defend or indemnify the Bautistas under the homeowners insurance
policy. Relying on State Farm Mut. Auto. Ins. Co. v. Partridge (1973) 10 Cal.3d 94 (
Jose’s use of a vehicle caused Valerie’s death, and Sara’s negligent
supervision of Valerie was not an independent cause of Valerie’s death, the
motor vehicle exclusion in the homeowners insurance policy precluded coverage
under that policy. The Bautistas opposed
the motion on the ground that two independent negligent acts, Jose’s negligent
use of the vehicle and Sara’s negligent supervision of the children, caused
Valerie’s death. The Bautistas argued
that under Partridge and
(1982) 131 Cal.App.3d 1031 (Kohl)
Sara Bautista was independently liable for Valerie’s death because she placed
Valerie in the “zone of danger,†and therefore the Bautistas’ homeowners
insurance policy provided coverage.
The trial
court agreed with the Bautistas and denied Farmers’ motion for summary
adjudication. The court found that under
Partridge and Kohl “Sara Bautista’s negligent supervision [of Valerie] exists
independently of the ‘use’ of a motor vehicle.â€
The court concluded that the motor vehicle exclusion in the homeowners
insurance policy did not apply.
Farmers
filed this petition for writ of mandate seeking review of the order denying its
summary adjudication motion. (Code Civ.
Proc., § 437c, subd. (m)(1).) We
issued an order to show cause why the writ should not be granted.
A.
“‘An order
denying a motion for summary adjudication may be reviewed by way of a petition
for writ of mandate. [Citation.] Where the trial court’s denial of a motion
for summary judgment will result in trial on non-actionable claims, a writ of
mandate will issue. [Citations.] Likewise, a writ of mandate may issue to
prevent trial of nonactionable claims after the erroneous denial of a motion
for summary adjudication.
[¶] Since a motion for summary judgment or summary
adjudication “involves pure matters of law,†we review a ruling on the motion
de novo to determine whether the moving and opposing papers show a triable
issue of material fact.
[Citations.] Thus, the appellate
court need not defer to the trial court’s decision. “‘We are not bound by the trial court’s
stated reasons, if any, supporting its ruling; we review the ruling, not its
rationale.’†[Citation.]’ [Citation.]â€
(Arnall v. Superior Court
(2010) 190 Cal.App.4th 360, 364; accord, Diamond
v. Superior Court (2013) 217 Cal.App.4th 1172, 1182.)
B. The
Applicable Law
The leading
case in this area of law is Partridge. In Partridge
the defendant was insured under homeowners and automobile policies issued by
State Farm. The homeowners policy
excluded coverage for injuries arising out of the use of an automobile. The defendant owned a pistol that he had
modified by filing the trigger mechanism so that it had “hair trigger
action.†He was out driving his
four-wheel drive Ford Bronco with two friends and using the pistol to shoot
jackrabbits through an open window when the car hit a bump and the pistol discharged. The bullet hit and seriously injured one of
his friends. (Partridge, supra, 10
Cal.3d at pp. 96-98.) The trial court
found that the defendant’s negligence in modifying the pistol was an
independent, concurrent proximate cause of the friend’s injuries, and therefore
his homeowners insurance as well as his automobile insurance provided coverage
for the accident. (Id. at p. 99.)
The court
observed that the use of the defendant’s vehicle was not the sole cause of the
victim’s injuries “but was only one of two joint causes of the accident,†with
the other cause being the modification of the pistol. (Partridge,
supra, 10 Cal.3d at p. 102.) Assuming the connection between the vehicle
and the accident was “the type of non-ambiguous causal relationship which would
normally bring the exclusionary clause into play, the crucial question
presented [was] whether a liability insurance policy provides coverage for an
accident caused jointly by an insured risk (the negligent filing of the trigger
mechanism) and by an excluded risk (the negligent driving).â€
constitute concurrent proximate causes of an accident, the insurer is liable so
long as one of the causes is covered by the policy.†(Ibid.)
The court
explained that in issuing the homeowners insurance policy, “State Farm agreed
to protect the insured against liability accruing from non-auto-related
risks.†(Partridge, supra, 10
Cal.3d at p. 103.) State Farm admitted
that had the pistol accidently fired in another setting, any damages caused by
the firing of the gun would be covered under the policy. The court concluded that the fact that the
gun accidently fired in the car did not preclude coverage. The defendant’s “negligent modification of
the gun suffices, in itself, to render him fully liable for the resulting
injuries. Under these facts the damages
to [the victim] are, under the language of the homeowner’s coverage clause,
‘sums which the Insured . . . [became] legally obligated to pay’
because of the negligent filing of the trigger mechanism; inasmuch as the
liability of the insured arises from his non-auto-related conduct, and exists
independently of any ‘use’ of his car, . . . the homeowner’s
policy covers that liability.†(
automobile insurance policies, the insured was driving his truck when he struck
a motorcyclist who was then thrown to the ground. After the accident, the insured and a
bystander dragged the motorcyclist out of the street, causing the motorcyclist
additional serious injuries. (
the dragging constituted two separate occurrences for purposes of insurance
coverage. (Id. at pp. 1034-1035.)
The
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.’ [Citations.]â€
(Kohl, supra, 131 Cal.App.3d at p. 1035, italics omitted.) The court found “that under general tort
principles, the additional injury suffered by [the motorcyclist] as a result of
the conduct of [the insured and the bystander] in negligently ‘dragging’ [the
motorcyclist] 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 [citation] thus invoking the coverage clause of the auto
policy.†(Ibid., italics omitted.)
The
could nonetheless be coverage under the homeowners policy. “[T]he question narrows as to one of whether
the postaccident conduct of [the insured] was so intimately involved with the
use of the vehicle and the part of a course of interrupted 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 nonvehicular conduct
which replaced or concurred with the vehicle use as a cause of the additional
injury.†(Kohl, supra, 131
Cal.App.3d at p. 1036.) The court
recognized that in contrast to Partridge,
where “the operation of the vehicle . . . impacted on the existing
and continuing antecedent nonvehicular negligence of the insured,†in the
current case “the nonvehicular conduct of [the insured] impacted on his
antecedent vehicular negligence.†(
principle,†“controlling,†and that “its effect is not altered by the
sequential order of the two types of conduct.â€
(Ibid.) The insured’s act of dragging the motorcyclist
“was independent of and unrelated to his use of the vehicle even though his use
of the vehicle placed the victim in a position which led to the additional
injury.†(Ibid.) Thus, both the
accident and the “dragging†were concurrent proximate causes of the
motorcyclist’s injuries, and there was coverage under the homeowners
policy. (Id. at pp. 1033, 1039.)
In
& Indemnity Co. (1983) 148 Cal.App.3d 641 (Ohio Casualty) the court followed Partridge and Kohl. The insured in Ohio Casualty was a parent who took a group of high school
teachers and students for an outing on a lake in his boat, and one of the
students was injured when she dove off the boat for a swim while the boat was
stationary and she was run over by another boat operated by one of the
teachers. (Id. at p. 643.) The injured
student sued the parent for negligent operation of the boat and negligent
supervision of the student in giving her permission to dive into the lake. (Ibid.) The parent had a yacht policy with one
insurer and a homeowners policy, “which excluded coverage for bodily injury
arising out of the use or operation of a watercraft,†with another
insurer. (Id. at p. 644.) The yacht
insurer provided coverage and a defense to the parent, and then sued the
homeowner’s insurer for one-half the cost of the indemnity and defense. (Id.
at pp. 643-644.)
The
watercraft exclusion in the homeowners policy did not apply because the “only
‘use’ of the boat was to transport [the injured student and the insured parent]
to the scene of the accident,†and “[o]nce there, the boat’s engine was turned
off and it became nothing more than a floating dock or platform.†(Ohio
Casualty, supra, 148 Cal.App.3d
at p. 646.) The court stated that the
insured’s negligent supervision of the injured student “was not in any way
dependent on the use of the boat before liability would arise,†and that the
insured’s liability “would be unaffected whether the acts occurred on a boat, a
pier, or on the shore.†(
The court noted that the insured’s “negligent supervision of [the
student’s] swimming was separate and independent of any use of the excluded
watercraft because there were many ways and places such conduct could have
given rise to liability without use of the boat, even though in the instant
case it was a use of the boat which actually placed the victim in the position
which led to the injury.†(
the insured had a homeowner’s insurance policy with a motor vehicle
exclusion. The insured was preparing for
a camping trip by loading a van he had parked in his driveway, while his
children were playing with three other children. The insured had put the van in park but had
not set the parking brake. While the
insured was in the house, one of the children moved the shift lever in the
unattended van and it rolled backward down the driveway, killing one of the
children playing with the insured’s children.
(Coburn, supra, 209 Cal.App.3d at pp. 916-917.) Relying on Partridge, the insured argued that the “alleged negligent
supervision of the children was independent of any act excluded by the policyâ€
and therefore covered. (
alleged liability of the [insured] does not arise from [his] nonauto-related
conduct and exist independently of
any use of [the] vehicle. Thus the
homeowner’s policy does not afford coverage for that alleged liability.†(Ibid.)
The
for Partridge to apply, there must be
two negligent acts or omissions of the insured, one of which, independently of
the excluded cause, renders the insured liable for the resulting injuries. [Citations.]’
[Citation.] [¶] Here, the alleged negligence consisting of
the [insured’s] failure to properly supervise the children, exposing them to
the hazard of a vehicle parked on an incline with its doors open and without
its parking brake set, and [the insured’s] leaving the vehicle’s doors open
while it was parked on an incline without setting the parking brake, could not
render the [insured] liable for the [child’s] death independently of [the
insured’s] use and loading of the vehicle.
All the alleged negligence arose from the [insured’s] auto-related
conduct, i.e., the use and loading of the van for the camping trip. It cannot be seriously argued that the
parking, leaving open and braking of a vehicle are anything other than aspects
of the ‘use’ of the vehicle. None of the
alleged negligence, including the negligent supervision of the children, exists
independently of [the insured’s] use and loading of the vehicle. Under the exclusionary clause the personal
liability claim arose out of the use and loading of the van, a motor vehicle
operated by the insured . . . .†(Coburn,
supra, 209 Cal.App.3d at pp. 919-920,
fn. omitted.)
142 Cal.App.4th 233 (Prince) also
distinguished Partridge and followed
In Prince the foster mother of
two young children left them in her car on a hot day for more than six hours
and they died. (Id. at p. 235.) In
finding that the exclusionary clause applied, the court noted that the foster
mother’s “negligence in leaving the children in the hot vehicle ‘simply cannot
be dissociated from the use of the vehicle.’
([Coburn],
920-921.) It was her abandonment of them
in the vehicle that subjected them to the conditions causing their deaths. Had she left them on a park bench, in a
grocery store, or on a neighbor’s porch, they would not have expired from
hyperthermia.†(Prince, supra, at
p. 245.)
C.
The
coverage issue in this case turns on whether Jose’s negligent operation of his
truck and Sara’s negligent supervision of the children are dependent or
independent concurrent proximate causes of Valerie’s fatal injuries. The difficulty in resolving this issue arises
in part from determining how independent a proximate cause has to be in order
to avoid the motor vehicle exclusion in the homeowners policy, and in part from
the elasticity of the concept of proximate case. (See Bridge
v. Phoenix Bond & Indem. Co. (2008) 553 U.S. 639, 654 [128 S.Ct. 2131,
170 L.Ed.2d 1012] [proximate cause “is a flexible concept that does not lend
itself to ‘“a black-letter rule that will dictate the result in every caseâ€â€™â€];
(2003) 29 Cal.4th 1134, 1181 [proximate cause “is a generic label for ‘the
judicial tools used to limit a person’s responsibility for the consequences of
[his or her] acts’â€]; Mays v. Chang
(W.Va. 2003) 579 S.E.2d 561, 565 [“proximate cause is an ‘elastic and mystical
term that is meaningless unless it is applied to the facts of a particular
case’â€].) It does not always provide
easy answers in close cases like this one.
This case
is somewhere between Partridge,
other. We conclude that the nature of
the allegations and the undisputed facts in this record, however, bring this
case closer to Coburn and
Kohl, and Ohio Casualty, “‘[t]he excluded instrumentality did not play an
active role in causing the injury.’†(
Cal.App.3d at p. 646.) In such cases,
courts have generally found that the motor vehicle or other relevant exclusion
does not apply. (See, e.g.,
(2009) 170 Cal.App.4th 992, 998, 1012 [vehicle exclusion in homeowner’s policy
did not apply where insured was driving victim home, her car got a flat tire,
and a friend picked them up; after the friend ejected victim from friend’s car,
victim started walking along freeway and was struck by a passing vehicle];
Ins. Co. (1980) 103 Cal.App.3d 694, 696-697, 700 [vehicle exclusion in
homeowners policy did not apply where insured’s son accidentally shot passenger
in car while “chambering a round†at target practice site];
Cal.App.3d 390, 392, 394-395, 397 [vehicle exclusion in homeowners policy did
not apply where insured accidentally shot passenger when he reached for a
loaded shotgun under the front seat to shoot a squirrel sitting on a stump];
see also Taylor v. American Fire &
Cas. Co. (Utah Ct.App. 1996) 925 P.2d 1279, 1284 [“when determining a
homeowners’ policy exclusion of coverage for damages arising from the use of a
motor vehicle, we focus on the instrumentality causing the damages and not the
theory of liability alleged in the complaint
In
contrast, the excluded instrumentality in Coburn,
Prince, and this case, the motor
vehicle, played an active role in causing the injury by rolling over the victim
(Coburn), heating up on a hot day (
(this case). The injury “involved no
instrumentality other than the vehicle itself,†and “there would have been no
accident without the use or operation of†the vehicle. (Safeco
Ins. Co. v. Gilstrap (1983) 141 Cal.App.3d 524, 530-531; see
(1990) 222 Cal.App.3d 268, 278 [“the ‘excluded instrumentality’ . . .
was not the mere passive situs of negligence divorced from the vehicle’s
maintenanceâ€].) In such cases, courts
have generally found that the motor vehicle or relevant exclusion applies to
bar coverage. (See, e.g.,
Cal.App.4th 430, 434 [vehicle exclusion precluded coverage where van negligently
driven by insured’s niece hit and injured the victim, even though insured was
allegedly negligent in allowing his niece to obtain the key];
(1993) 17 Cal.App.4th 65, 68-69 [vehicle exclusion precluded coverage under
comprehensive general liability (CGL) policy where insured’s negligently driven
rebuilt Bantam Coupe killed passenger in collision, even though the insured was
allegedly negligent in welding the vehicle]; State Farm Fire & Casualty Co. v. Keenan (1985) 171 Cal.App.3d
1, 22 [aircraft exclusion precluded coverage where airplane “crash involved no instrumentality other
than the accident aircraft, and there would have been no crash in the absence
of the use or operation of the accident aircraft,†even though insureds
allegedly were negligent in entrusting the airplane to the pilot];
(1983) 142 Cal.App.3d 406, 412, 415 [aircraft exclusion precluded coverage
under homeowners policy where insured crashed plane shortly after takeoff
killing one passenger and injuring others, even though insured allegedly was
negligent in his “‘preflight preparation and/or planning’†and in piloting
plane while under the influence of alcohol]; Safeco Ins. Co. v. Gilstrap, supra,
141 Cal.App.3d at p. 530 [vehicle exclusion precluded coverage where insureds’
unlicensed son drove motorcycle and injured passenger in collision, even though
the insureds allegedly were negligent in entrusting the motorcycle to their
son]; Allstate Ins. Co. v. Jones
(1983) 139 Cal.App.3d 271, 277 [vehicle exclusion precluded coverage under CGL
policy where rebar on insured’s truck struck and killed driver of the other car
in a collision, even though the insured allegedly was negligent in loading and
securing the rebar on the truck]; State
Farm Fire & Cas. Co. v. Camara (1976) 63 Cal.App.3d 48, 53-56 [vehicle
exclusion precluded coverage under homeowners policy where insured drove a dune
buggy and injured the passenger, even though the insured allegedly was
negligent in designing and building the dune buggy]; State Farm Fire & Cas. Co. v. Estate of Evoniuk (N.D.Cal. 1988)
681 F.Supp. 662, 664-665 [vehicle exclusion precluded coverage under homeowners
policy where insureds’ minor son drove motorcycle after drinking alcohol in the
presence of his mother, even though the parents allegedly were negligent in
supervising their son].)
Moreover,
as in Coburn, the supervision here
was negligent only because it exposed the children to the danger of negligent
automobile use. Although the negligent
supervision claimed in this case is not as closely “auto-related†as it was in
it does not constitute an “independent, concurrent proximate cause[] ofâ€
Valerie’s fatal injuries. (
v. Westport Ins. Corp. (2006) 143 Cal.App.4th 819, 835 [“[c]ourts following
Partridge have made it clear that its
holding only applies to ‘multiple causes that operated totally independently of
one another’â€]; Allstate Ins. Co. v.
Jones, supra, 139 Cal.App.3d at
p. 277 [“[i]t is clear when reviewing the facts set forth in
that one of the negligent acts which occurred did not depend upon the use of an
automobile and, thus, did not fall within the exclusionary clauseâ€].)
It was
undisputed that “Sara’s alleged negligence is in allowing Valerie to be out of
the house in the zone of danger,†which was created when Jose came home in his
truck. It was undisputed that Sara
“needed to take extra precautions for the younger grandchildren, including
Valerie,†because the “grandchildren would routinely go out to greet Jose at
his truck, when he came home.†Sara
testified that the children were normally excited when their grandfather
arrived home, that they waited in anticipation for him to come home, and that
“[t]hey would hear him and then they would go out.†In addition, it was “kind of normal to be on
the lookout for . . . Grandpa coming home to ensure that the younger
ones would be safe.†As the Bautistas
argue in their answer to the petition, “it was foreseeable that if Valerie got
out of the house unsupervised, due to her tender years, she could be injured
and killed in just the manner which she was.â€
Thus, Sara’s alleged negligent supervision consisted of allowing Valerie
to become exposed to the specific hazard created by the arrival of Jose in his
truck. The undisputed evidence on
summary judgment, and the Bautistas’ position in this litigation, is not that
Sara’s negligence allowed the children to be exposed to one of a number of
dangers, such as the danger of wandering away and becoming lost, abduction by
strangers in the neighborhood, or even collisions with cars driving down the
street. To the contrary, the Bautistas
claim, and the evidence is undisputed, that Sara’s only negligence in this case
was to expose the children to the known danger of Jose’s use of the truck. None of the alleged negligent supervision
“exists independently of [Jose’s] use . . . of the vehicle.†(Coburn,
supra, 209 Cal.App.3d at p.
920.) As in Coburn, “the conduct of [Sara] in negligently supervising the
children . . . was an omission separate from the use of the
vehicle only in terms of time and it cannot be disassociated from the use of
the vehicle itself . . . .â€
(Id. at pp. 920-921.)
Similarly,
as in Prince, it was Sara’s failure
to supervise Valerie when she went out to greet Jose as he drove home in his
pickup truck that “subjected [Valerie] to the conditions causing [her]
death[].†(Prince, supra, 142
Cal.App.4th at 245.) Had Sara’s failure
to supervise Valerie occurred at any other time, Valerie would not have been
exposed to the risk of Jose’s truck arriving home. As the court stated in Prince, “‘in order for Partridge
to apply there must be two negligent acts or omissions of the insured, one of
which, independently of the excluded cause, renders the insured liable for the
resulting injuries.’†(
399 [Partridge “should be utilized
only in liability cases in which true
concurrent causes, each originating from an independent act of negligence,
simultaneously join together to produce injuryâ€].) Sara’s alleged negligent supervision would
not have rendered her and Jose liable independently of Jose’s driving of his
vehicle, and was not a “totally independent[]†cause of Valerie’s death. (Medill
v. Westport Ins. Corp., supra,
143 Cal.App.4th at p. 835.)
name="_ftnref3" title="">[3]
Moreover,
as in Coburn, where the injury caused
by the insured’s non-vehicular negligence (failing to supervise children while
packing a van parked in his driveway) could only have occurred at the time and
in the manner of the vehicular negligence (loading a van in the driveway
without setting the parking brake), Sara’s non-vehicular negligence (failing to
supervise children while Jose drove his truck in the driveway) can only have
occurred at the time and place of the vehicular negligence: in the Bautistas’
driveway when Jose came home from work.
In contrast, in Partridge, the
injury caused by the insured’s non-vehicular negligence (modifying the gun’s
trigger mechanism) could have occurred anywhere at any time: on the road, at
home, or in a public place. Similarly,
in Kohl, the injury caused by the
insured’s non-vehicular negligence (dragging an injured person) could have
occurred anywhere at any time: on the asphalt, during a rescue from a burning
building, or on a football field. (But
see Kohl, supra, 131 Cal.App.3d at p. 1041 (dis. opn. of Beach, J.)
[“vehicular accident placed plaintiff on the ground, a condition crying for
rescue,†and although “the rescue may be separable from driving the vehicle
. . . the results of both are included in the greater circle of
circumstance or condition which is defined as arising from operation of a
vehicleâ€].) Sara’s negligent supervision
was not “separate and independent†of Jose’s negligent automobile use because
there was only one way, one place, and one time Sara’s negligence could give
rise to liability: when Jose arrived home in his truck. (Cf. Ohio
Casualty, supra, 148 Cal.App.3d
at p. 648 [“there were many ways and places†the insured’s negligent
supervision of child could have led to injury independent of use of yacht].)
Therefore,
the trial court erred in finding “Sara Bautista’s negligent supervision [of
Valerie] exists independently of the ‘use’ of a motor vehicle,†and that the
motor vehicle exclusion in the homeowners insurance policy did not apply. Her negligence was sufficiently related to
Jose’s use of the vehicle and “part of a course of uninterrupted conduct†that
it fell within the motor vehicle exclusion.
(Kohl, supra, 131 Cal.App.3d at p. 1036.) Farmers had no liability under the homeowners
insurance policy as a matter of law and was entitled to summary adjudication on
its complaint and the Bautistas’ cross-complaint that it had no duty to
indemnify or defend the Bautistas in the Casaya action. (See County of Los Angeles v. Superior Court (2009) 181 Cal.App.4th 218, 226.) We therefore order the trial court to grant
Farmer’s motion for summary adjudication.
(Arnall v. Superior Court,
supra, 190 Cal.App.4th at p. 374; see Choate v. Celite
Corp. (2013) 215 Cal.App.4th 1460, 1468.)
DISPOSITION
Let a
peremptory writ of mandate issue directing the trial court to vacate its order
denying Farmers’ motion for summary adjudication and to issue a new order
granting Farmers’ motion for summary adjudication that it had no duty to defend
or indemnify the Bautistas under the homeowners insurance policy. Farmers is to recover its costs.
SEGAL,
J.
We concur:
PERLUSS,
P. J.
ZELON,
J.
name="_ftn1" title="">
car†includes a pickup truck.
name="_ftn2" title="">
court noted that a “different rule of construction applies to exclusionary
clauses as distinguished from coverage clauses.
Whereas coverage clauses are interpreted broadly so as to afford the
greatest possible protection to the insured [citations], exclusionary clauses
are interpreted narrowly against the insurer.
[Citations.] These differing
canons of construction, both derived from the fundamental principle that all
ambiguities in an insurance policy are construed against the insurer-draftsman,
mean that in ambiguous situations an insurer might be found liable under both
insurance policies. [Citations.]†(Partridge,
supra, 10 Cal.3d at pp.
101-102.) Thus, “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.
[Citations.]†(
