Casualty Ins. v. Gradek
Filed
8/8/13 IDS Property Casualty Ins. v.
Gradek CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
IDS PROPERTY CASUALTY INSURANCE
COMPANY,
Plaintiff and
Respondent,
v.
PATRICIA GRADEK et al.,
Defendants and
Appellants.
F065169
(Kern
Super. Ct. No. 273418)
APPEAL from
a judgment of the Superior Court of
Chain Cohn
Stiles and David K. Cohn for Defendants and Appellants.
Woolls
& Peer and H. Douglas Galt for Plaintiff and Respondent.
-ooOoo-
After Ramon
Rebeles parked on a frontage road, four dogs bolted out of his vehicle. Defendant Patricia Gradek was seriously
injured when her bicycle collided with one of the dogs on a nearby bicycle
path. The Rebeles’s insurance carrier,
plaintiff IDS Property Casualty Insurance Company (plaintiff), filed a
the incident did not trigger insurance coverage because it did not result from
a “use†of the Rebeles’s motor vehicle.
(See Ins. Code, § 11580.06,
subd.(g).) Defendants claimed that the
incident arose out of the unintentional unloading of the dogs, which
constitutes a use of the motor vehicle under section 11580.06, subdivision (g).
After a court trial, the superior
court found that the dogs “had completed the process of unloading†from the
Rebeles vehicle when the incident occurred.
The court concluded that Gradek’s injury did not result from a “use†of
the motor vehicle, and entered judgment in favor of plaintiff. We affirm.
On the
morning of September 6, 2009, Patricia and Dale Gradek (defendants) were riding
bicycles on a path, when Mrs. Gradek’s bicycle collided with a dog. She sustained serious injuries.
Shortly
beforehand, Ramon and Connie Rebeles (the Rebeleses) had driven their Toyota
RAV IV (Toyota) to Alfred Harrell Highway Frontage Road. Their four dogs accompanied them in the
Toyota. The Rebeleses intended to have
their dogs run free from the frontage road to a nearby river.
Mrs.
Rebeles’s brother-in-law drove in a separate vehicle behind the Toyota. After arriving, the brother-in-law exited his
vehicle and walked towards the Toyota.
Mr. Rebeles thought the brother-in-law was going to open the rear gate
of the Toyota. This concerned Mr.
Rebeles, because he believed that the dogs would bolt out of the back door if
it was opened. To prevent that from
occurring, Mr. Rebeles opened his door and exited the vehicle while the engine
was running. As he opened his door, the
dogs jumped out of the Toyota and began running. They ran through or around a chainlink fence
between the frontage road and the bike path.
The bike path was approximately 20 feet from the Toyota. Within seconds of the dogs exiting the
Toyota, the Rebeleses heard a scream and yelling. They then observed Mrs. Gradek on the ground.
Defendants
sued the Rebeleses, alleging that they owned the dog that collided with Mrs.
Gradek’s bicycle and were liable for her injuries. The Rebeleses were insured under an automobile
insurance policy issued by plaintiff (the policy). The policy obligates plaintiff to “pay
damages for which an insured person is legally liable because of bodily injury
or property damage resulting from the ownership, maintenance or use of a car.…â€
Plaintiff initiated an action for
declaratory relief, contending that it had “no liability for the damages sought
by the Gradeks†because “the claimed injuries did not result from the
Rebeleses’ ‘ownership, maintenance or use of a car.…’ â€
At a court trial, defendants
contended that coverage was triggered because the incident arose out of the
unloading of the dogs from the motor vehicle.
Plaintiff countered that there was an insufficient causal connection
between the accident and a “use†of the vehicle.
After trial concluded, the superior
court found as follows:
“The Toyota did not
play an active role in causing Mrs. Gradek’s injury. The Toyota merely served as the means by
which the instrument that allegedly caused the injury (the Rebeleses’ dog) and
the alleged tortfeasors (the Rebeleses) were transported to the scene. [¶]
The Gradeks have argued that the accident arose out of the unloading of
the Toyota. However, the accident
occurred well beyond the unloading zone.
[Citation]. The dogs were at the
intended destination and had completed the process of unloading from the
Toyota. They were on the ground and
running. The accident occurred
(allegedly) because the dogs were now running unrestrained.â€
Judgment was entered in favor of
plaintiff, and defendants appeal.
ANALYSIS
I.
STANDARD OF
REVIEW
Both parties agree that our
standard of review is de novo. They are
only partly correct. To the extent we
are required to interpret the policy itself, we do so de novo. (
Services, Inc. (2006) 137 Cal.App.4th 812, 818.) The trial court’s factual findings, however,
are reviewed for substantial evidence. (
Farm Bureau Mut. Ins. Co. (2012) 210 Cal.App.4th 645, 654;
204 Cal.App.4th 1214, 1222 (Axis Surplus
Ins. Co.).)
Though the parties contend
otherwise, there is a dispute of fact on appeal. Defendants argue that the “real questionâ€
presented on appeal “is whether the Rebeles[es] had completed the unloading
process when the incident causing injury to Patricia Gradek occurred.†This question is one of fact. (See Amer.
Auto. Ins. Co. v. Amer. Fid. & Cas. Co. (1951) 106 Cal.App.2d 630,
636-637 (American Auto).) And, the parties offer conflicting
answers. Plaintiff contends the
unloading process was completed before the dog allegedly injured Gradek. Defendants contend that the unloading process
was not completed (or even begun) when the dog allegedly injured Gradek.
The trial court answered this
question of fact, expressly finding that, “the accident occurred well beyond
the unloading zone. [Citation.] The dogs were at the intended destination and
had completed the process of unloading from the Toyota.†We defer to this factual finding and review
it only to ensure that it is supported by substantial evidence. (Axis
Surplus Ins. Co., supra, 204
Cal.App.4th at p. 1222.)
II.
THE TRIAL COURT’S RELEVANT
FINDINGS ARE SUPPORTED BY SUBSTANTIAL EVIDENCE
The trial court’s finding that the
dogs had “completed the process of unloading†when the accident occurred is
supported by substantial evidence. Connie Rebeles testified that Gradek was on
the ground in the bike path 20 feet (or maybe 30 feet) away from the Rebeleses’
vehicle. The trial court also found that
the Rebeleses intended to have the dogs run from the frontage road to the
river.
That the collision between Gradek
and the Rebeleses’ dog occurred on a bike path 20 feet (or more) away from the
vehicle was evidence that the dog had completed unloading from the
vehicle. (See State Farm Mut. Auto Ins. Co. v. Grisham (2004) 122 Cal.App.4th
563, 568 (Grisham) [tort occurring
“20 to 25 yards†away from vehicle was “well beyond any unloading zone or
activityâ€].) That the Rebeleses intended
to have their dogs run from the frontage road supports the finding that
unloading concluded once they exited the vehicle. (See id.
at p. 567.) Because the trial
court’s finding that the dog had completed unloading from the vehicle is
supported by substantial evidence, we accept it as true on appeal.
THE FACTS AS FOUND BY THE TRIAL
COURT DO NOT TRIGGER COVERAGE UNDER THE POLICY
In order for an injury to arise out
of the use of a vehicle, one or more of the following must be a predominate
cause of the injury: (1) operation; (2)
movement; (3) maintenance; (4) loading; or (5) unloading of the vehicle. (§ 11580.06, subd. (g);
Defendants do not contend that the injury here resulted from the
movement, maintenance or loading of the vehicle. Thus, we are left to determine whether the
(1) operation or (2) unloading of the vehicle was a predominate cause.
In this vein, defendants present
two arguments: (1) the transportation of the dogs constituted a use of the
vehicle; and (2) the unintentional unloading of the dogs constituted a use of
the vehicle, and Mrs. Gradek’s injuries arose out of that use. The first contention is correct, but not
dispositive. The transportation of the
dogs, though a use of the vehicle, was not sufficiently causally related to the
incident. The second contention has no
merit.
THE DOGS TO A PLACE NEAR THE SITUS OF INJURY DOES NOT ESTABLISH THE REQUISITE
LEVEL OF CAUSATION TO TRIGGER COVERAGE
Defendants first argue that the
transportation of the dogs was a “use†of the motor vehicle. We agree.
(See Hartford Accident &
Indemnity Co. v. Civil Service Employees Ins. Co. (1973) 33 Cal.App.3d 26,
32.) But defendants end their
transportation-as-use argument there.
The next analytical step – whether the bodily injury at issue resulted
from that particular use – is left unaddressed.
There is only a single causal link
between the use of the vehicle to transport the dogs and the injury: it’s how the dogs arrived at the site of the
injury. It is well-settled that this
type of causal relationship is insufficient to trigger coverage. (Cf. Grisham,
supra, 122 Cal.App.4th at pp.
567-568.) “ ‘ “ ‘[T]he mere
transportation of a tortfeasor to a site where he commits a tort after
department from the … vehicle’ does not establish the requisite causal
relationship†’ between the use of the vehicle and the injury.†(Ibid.) A contrary rule would, if “[c]arried to its
logical conclusion[,] … attach automobile insurance coverage to every accident
which occurred after an insured had first been transported by automobile.†(Aetna
Cas. & Surety Co. v. Safeco Ins. Co. (1980) 103 Cal.App.3d 694, 700.)
UNLOADING OF THE DOGS
Defendants
next argue that the injury was caused by the “unintentional unloading†of the
dog from the vehicle. There is no
general rule of law as to when an accident arises out of the “unloading†of a
vehicle. (American Auto, supra, 106
Cal.App.2d at p. 636.) Rather, a
case-specific factual evaluation must be performed. (Id. at
p. 637.) Here, that factual
evaluation was done by the trial court.
The trial court found that the dogs “had completed the process of
unloading†from the vehicle when the incident occurred. It further found that the injury did not
result from a use of the Rebeles vehicle.
Substantial evidence supported these dispositive findings. (See issue II, ante.)
Cases cited
by defendants do not alter this conclusion.
Defendants rely primarily on three cases: American
Auto, supra, 106 Cal.App.2d 630,
1940) 115 F.2d 297 (Tighe), and
Mutual Ins. Co. (1979) 95 Cal.App.3d 102 (National Indemnity). None of
these cases control here.
Auto
In
an oil spill arose out of the unloading of a tank truck and trailer carrying
diesel oil. Ultimately, the court held
that, “the accident falls within the coverage of the ‘loading and unloading’
provision of defendant’s policy since the accident occurred while unloading was
in progress and before the oil had come to … its ultimate destination.†(Id.
at p. 638.)
Here, the trial court found the
accident did not occur while “unloading was in progress.†The trial court further found that the
incident did not occur before the dogs had come to their intended destination. Thus, neither of the two rationales in
name="_ftnref4" title="">[4]
In
whether an accident arose out of the unloading of a motor vehicle. Appellee Leong Cheung made a delivery of
vegetables to a restaurant, and was walking on the sidewalk when he collided
with Tighe. The trial court found that
Leong Cheung was returning to his truck “for the purpose of obtaining further
vegetables to deliver†when he collided with Tighe. The trial court found that “at the time of
the alleged accident[, appellee] was unloading the truck …†and that coverage
was triggered. The Ninth Circuit
affirmed. (Id. at p. 298.)
Unlike the trial court in
case determined that the dogs had “completed the process of unloading†when the
accident occurred. In
mechanism of injury) was engaged in an integral part of the unloading process
when the accident occurred. Cheung was
returning to his truck to unload more vegetables. Here, there is no analogous fact suggesting
that the process of unloading the dogs was ongoing when the accident occurred.
Indemnity
In
tragic vehicle versus pedestrian accident arose out of a use of a motor
vehicle. Lucia Quibael was driving her
daughter, Iriss, and her nephew, Conrad Cortes, to the Cortes residence. Lucia parked her vehicle, and Iriss opened
the passenger side door. Conrad exited
the vehicle on the passenger’s side and crossed the street in front of Lucia’s
vehicle. Conrad was half way across the
street when he was struck by a vehicle.
The Court of Appeal found that the
incident did arise from a “use†of Lucia’s motor vehicle. The National
Indemnity court reasoned that the “process of unloading a child from a
motor vehicle does not end the moment that the child’s feet touch the ground or
when his or her body is entirely outside the vehicle.†(National
Indemnity, supra, 95 Cal.App.3d
at p. 106.) National Indemnity is distinguishable.
First, the
trial court’s decision here was not based solely on the fact that the dogs were
entirely outside the vehicle with their paws on the ground. The trial court also found that (1) the
accident occurred well beyond the unloading zone (cf. Grisham, supra,
dogs were at their intended destination, (3) the dogs were on the ground and
running unrestrained, and (4) the unloading process had completed before the
accident occurred. Thus, the finding
here is predicated on more than the bases National
Indemnity deemed insufficient by themselves.
Second, the
intended destination of the “unloadee†(i.e., the child) in
home. (National Indemnity, supra,
95 Cal.App.3d at p. 105.) He had not yet
arrived at that intended destination when the accident occurred. (
Thus, the child’s exit from the vehicle and placement of his feet on the
ground did not conclude the unloading process.
Conversely, the intended destination for the Rebeleses’s dogs was the
frontage road where the Toyota was parked.
The Rebeleses’ intention was that the dogs would run free, beginning
from the frontage road. Thus, the dogs’
exit from the vehicle itself resulted in arrival at the intended destination.
Moreover, National Indemnity provides no general rule for determining when a
particular unloading process has ended, and for good reason. The essential inquiry at issue in
case, is factual and thus resistant to rules of broad applicability. The unloading process for food deliveries,
process for diesel, American Auto,
which is different from the unloading process for dogs, Grisham, supra, 122
Cal.App.4th at page 565. There is no
universal endpoint to these varying unloading processes (or their ensuing
effects). Rather, whether an accident
arises out of the unloading a vehicle is determined on a case-by-case
basis. (American Auto, supra, 106
Cal.App.2d at pp. 636-637.)
“Necessarily, no general rule can be laid down as to when an accident
arises out of the ‘unloading’ of a vehicle, but each case must be separately
considered according to the particular facts involved.†(Ibid.,
fn. omitted.) It is the type of inquiry
left to finders-of-fact, and is ill-suited to bright-line rules and
second-guessing from appellate courts.
Here, the task of conducting that fact-intensive consideration fell to
the trial court, which concluded that the accident did not arise from the
unloading of the Rebeleses’ vehicle.
None of the cases cited by
defendants compel reversal of that conclusion.
The judgment is affirmed.
_____________________
Poochigian, J.
WE CONCUR:
______________________
Cornell, Acting P.J.
______________________
Gomes, J.
All further statutory references are to the Insurance Code unless otherwise
stated.
Defendants do not challenge this finding on appeal.
