Hagen v. Aetna Casualty & Surety Co.

We have elected to consider this case en banc. Ernest Hagen and Jessie Ward, in partnership, operated a small retail carpet store under the name of E & J Carpet Country (E & J). It was a small operation which neither owned nor had access to a forklift. It also owned no vehicles but relied on the privately owned vehicles of Hagen and Ward in the operation of its business.

Jerry Richardson was an employee of Carpet Transport which was in the business of delivering carpet to E & J and other retail carpet stores. When the retailer had no forklift, it was common practice to pull the carpet out of the delivery truck with a vehicle owned by the retailer. Richardson carried a rope with him for this purpose.

On October 29, 1987, Richardson delivered carpet to E & J. Hagen was out of town at this time. In order to unload the carpet, Richardson tied one end of the rope to the carpet in the truck and someone from E & J tied the other end to the bumper of a vehicle used regularly by E & J for this purpose. The vehicle was then pulled forward, thereby pulling the carpet out of the delivery truck. Three rolls of carpet had thus been uneventfully pulled from the truck; however, as the fourth roll was being pulled, it knocked Richardson down and fell on him. He was injured.

Richardson sued Hagen and Ward both individually and as the partnership. Aetna, their commercial general liability insurance insurer, was notified of the action and commenced a defense. The original complaint claimed liability based on Ward’s negligent operation of the vehicle in the unloading of the carpet.

After investigating the claim and the facts giving rise to the injury, Aetna determined that the claim was for an injury excluded from its policy and, after proper notice to its insureds, withdrew from representation. It appears that after Aetna withdrew from representation, Richardson’s complaint was amended so that “the sole allegation of negligence was that (E & J) failed to have proper equipment (such as a forklift) for the unloading of carpet. There was now no claim that Ward operated the van negligently.” There is no indication in this record, nor in the allegations of the present bad faith action against Aetna, that it was ever notified of this amended complaint. A judgment in favor of Richardson was entered against Ha-gen. Both Hagen and Richardson claim bad faith in this action. After determining that there was no duty to indemnify or defend, the trial court granted summary judgment in favor of Aetna. Hagen and Richardson appeal.

Regardless of the allegations of the complaint, it is the underlying facts that determine the duty to indemnify. Aetna’s policy involved in the action contained the following exclusion:

This insurance does not apply ... to bodily injury ... arising out of the ... operation, use ... of any automobile ... operated by ... the insured.

The term “arising out of’ is broader in meaning than the term “caused by” and means “originating from,” “having its origin in,” “growing out of,” “flowing from,” “incident to” or “having a connection with” the use of the vehicle. National Indemnity Co. v. Corbo, 248 So.2d 238 (Fla. 3d DCA 1971). In appellants’ brief, they assert the following:

The accident happened because Mr. Ward, lacking a forklift or other appropriate material handling device, attempted to pull a role of carpet out of the Carpet Transport truck by means of a rope tied to the carpet and the bumper of Mr. Ward’s van. The pulling of the carpet caused one of the rolls to fall and injure Richardson.

If asked whether this injury arose out of the operation or use of a vehicle, any reasonable person would, after inquiring as to whether it was a trick question, answer in the affirmative. Appellants concede that this would be the proper answer if we were dealing with a coverage issue under an automobile’s liability insurance policy. They urge, however, that since we are here dealing with an exclusionary clause, a stricter construction should be applied in order to find coverage. We disagree.

The court in Corbo considered a similar request for strict construction. In that case, the homeowner policy excluded injuries arising out of “the ownership, maintenance, operation, use ... of (1) automobiles ... while away from the premises.... ” The court stated:

Appellant contends that there is a distinction between the construction of basic coverage provisions which obtains in its- automobile liability policy, and exclusions or exceptions to coverage in Gulfs homeowner’s policy, and a stricter rule of construction applied when coverage is excluded.

We accept appellant’s premise that exclusionary clauses are narrowly construed against the insurer but reject the attempted application to this ease, observing that while rules of construction are applied where there is doubt or ambiguity, plain language requires no construction.

Corbo, 248 So.2d at 240, 241.

We agree with Corbo that if a policy provision is unclear, it should be construed strictly against the insurer. However, if a policy provision is clear and unambiguous, it should be enforced according to its terms whether it is a basic policy provision or an exclusionary provision.

The policy provision in our case is not ambiguous. It clearly excludes injuries arising out of the use of a vehicle. The question in our case is not what the exclusionary clause means, but whether the alleged injury arose out of the use of a vehicle. Construction of the policy is not the issue; applying the admitted facts to the policy provision is our chore.

Appellants contend, and rightfully so, that if the use of the vehicle was merely incidental to the injury, then coverage would obtain. In that vein, it is suggested that since several strong men could pull the carpet out of the truck, the use of the vehicle was merely incidental to the injury. The analogy is flawed. Whether it was the vehicle or the several strong men that supplied the source of the energy, the injury still resulted because the carpet was pulled from the truck while Richardson was in the zone of danger. The source of the energy that did the pulling — the vehicle or the several strong men — was critical to the cause of the injury. Even though there would have been coverage if, in fact, the carpet had been unloaded by several strong men, it was not. That does not change the fact that since the vehicle was actually used in the unloading process in such a way as to cause injury, coverage did not apply.

There is a proper analogy involving the several strong men. If several strong men had grabbed hold of the carpet directly and, being unmindful of the location of Richardson, had pulled the carpet off the truck thereby injuring him, it would prove that the use of the rope was merely incidental to the injury. It is the fact that force was used to blindly pull the carpet off the truck, not the manner in which the force was applied to the carpet, that caused the injury.

Appellants suggest that their position is supported by American Modern Home Insurance Co. v. Rocha, 151 Ariz. 595, 729 P.2d 949 (Ct.App., 1986), and Lawver v. Boling, 71 Wis.2d 408, 238 N.W.2d 514 (1976). Such is not the case. Actually these cases are good examples of how to determine whether something is the cause of an injury or is merely incidental to an injury.

In Rocha, a vehicle and a rope were used to pull a tripod into an upright position. Several strong men could have done the same thing (with or without the rope). But the injury did not result from the force exerted to pull the tripod into position. It resulted when the tripod collapsed because of its faulty construction. It would have collapsed regardless of how it was brought to the upright position. Therefore, both the vehicle and the rope were merely incidental to the injury. But a different decision would have resulted had the tripod been dragged into someone, thereby causing injury.

In Lawver, a lift chair was hoisted into position by a rope tied to a vehicle. It could have been hoisted by several strong men. But it was not the hoisting that caused the injury. The negligence in Lawver was the selection of a defective rope to carry the load. The rope would have snapped regardless of how the lift chair was hoisted into position. The vehicle and the use of a rope (as opposed to the selection of a defective rope) were merely incidental to the injury. Again, there would have been a different result if Lawver had been pulled from the lift chair because the vehicle suddenly lurched forward.

Unlike our case in which the accident resulted only because Ward failed to make sure that Richardson was out of danger before he drove forward, both Rocha and Lawver involved injuries resulting clearly from negligence unrelated to the driving of the vehicle. In Rocha, the injury would not have occurred “but for” the use of the defective tripod that collapsed; in Lawver, the injury would not have occurred “but for” the use of a defective rope that unraveled and snapped.

In our case, the rope did not snap and the carpet was not defective. Everything occurred as planned — except that Ward did not permit Richardson to move to safety before pulling the van forward. Both Rocha and Lawver indicate that had the only cause of the injury been driving the vehicle with a proper rope attached to the load, the injury would have been excluded from the policy.

The only “but for” in our case was the negligent operation of the van unless we conclude that the decision to drive the van with a rope attached to the bumper and tied to a roll of carpet was a separate and distinct act of negligence. This gets us to another proposed theory of liability which finds support in the Iowa case of Kalell v. Mutual Fire and Automobile Insurance Co., 471 N.W.2d 865 (1991), wherein the court held:

The use of the pickup to provide the force, we believe, does not excuse the insured from any negligence in his decision to remove the limb with the rope. This could be found to be an independent act of negligence and one which is covered by the policy. (Emphasis added).

So far, Kalell has been limited to Iowa. But even Kalell recognizes that the vehicle was not merely incidental to the injury. It holds that the “decision” to use a rope is a separate act of negligence which is in the nature of a concurring cause. But it is not a concurring cause. Under Florida law, “concurring causes are two separate and distinct causes that operate contemporaneously to produce a single injury.” Goldschmidt v. Holman, 571 So.2d 422, 424 (Fla.1990). First, the decision to do an act is not a “separate and distinct cause” of an injury resulting from the doing of the act. The decision merely brings about the performance of the act. Second, the decision to do the act, at least in this case, was not “contemporaneous” with the performance of the act which caused the injury. After the decision was made, a rope had to be acquired and tied to the vehicle and the carpet. Even then, no injury could result until the vehicle was pulled forward with Richardson in the zone of danger.

Kalell holds that the “decision” was a separate negligent act justifying liability; appellants herein urge that the negligence was in not having a forklift; others might say the “plan” to unload the carpet was unnecessarily dangerous and would justify liability; and still others might find liability simply because there was “negligence in the way the carpet was unloaded.” However this concept is worded, it should be fairly and completely stated. The “decision” was not merely to use a rope, it was to use a rope in conjunction with the power of a vehicle to do the unloading; the failure to have a forklift caused the use of the vehicle; the “plan,” even if unnecessarily dangerous, required the power of the pulling vehicle; and the “way the carpet was negligently unloaded” was in driving the van forward even though the driver, knowing Richardson was somewhere in the zone of danger, failed to make sure he had moved to safety.

But whether we consider the “decision,” “the failure to have a forklift,” the “plan” or the “negligent unloading,” each necessarily involves the use of the vehicle in the act which caused the injury, and all injuries arising out of such use are expressly excluded by the policy terms.

To put it another way, because Hagen and Richardson didn’t have a forklift, they made a “decision” to come up with a “plan” to “unload (negligently)” a roll of carpet from the truck by using a rope tied to a vehicle and then driving that vehicle forward. The argument which divides this incident into segments concedes that the “act” itself (driving the vehicle forward to pull the carpet off the truck) is excluded from the policy — otherwise there is no need for sequencing. But the concept that the failure to have a forklift, the decision to do the act, the plan to do the act and the result of doing the act (unloading) are separate and distinct incidents of negligence from the act itself is metaphysics at its best.

The effort to change the focus from the fact that an injury results from the operation of a vehicle is not new. In Gargano v. Liberty Mutual Insurance Company, 384 So.2d 220 (Fla. 3d DCA 1980), the plaintiff urged as an independent act of negligence the “negligent entrustment” of the vehicle to a minor child. The court rejected this theory, holding that any negligent entrustment necessarily arose out of the ownership, operation or use of the vehicle within the meaning of the exclusionary clause of the homeowner’s policy.

Also in Atkins v. Bellefonte Insurance Company, 342 So.2d 837 (Fla. 3d DCA 1977), the court was confronted with the same exclusionary clause when considering an injury which resulted from a collision involving two vehicles. The defendant school was sued not because the improper operation of its vehicle caused the collision (an excluded act), but because it was negligent in allowing a minor to escape from the school thus requiring that the vehicle be used to return the child. The court rejected this claim, observing that the injury would not have resulted but for the use of the school’s vehicle. Why the vehicle was used was not a legal cause of the accident.

Similarly, the fact that E & J did not own a forklift was not the legal cause of this injury; the negligent use of its vehicle was.

Even though the parties stipulated that the issue of duty to defend would be considered after the court determined the issue of the duty to indemnify, the court determined that under the facts presented to it, there was no duty to defend or to indemnify. Under the facts of this case, we agree.

It should be noted that Aetna fully investigated the original complaint and determined that the facts of the case precluded coverage. Even though the complaint was amended to assert a different basis for recovery in order to avoid the exclusionary clause, the facts have not changed. There remains no duty to indemnify. Further, since appellants have not alleged that the amended complaint was ever provided Aetna, an action for bad faith settlement was never properly alleged. Aet-na urges that the amended complaint was filed in bad faith in an effort to disguise the true nature of the cause of the injury. We find no bad faith. We believe that Richardson was attempting to establish a new concept of negligence that would avoid the exclusionary clause. We simply think he failed. Even so, we still have the problem of lack of record notice to Aetna of the amended complaint.

Florida courts discourage trial by ambush. Aetna should not be liable for failing to defend a cause of action not brought to its attention. Appellants have not contended in this appeal that Aetna was wrong in failing to defend the cause of action originally pled by Richardson.

The court in Baron Oil Co. v. Nationwide Mut. Fire Ins. Co., 470 So.2d 810 (Fla. 1st DCA 1985), stated the principle as follows:

The rule is well established that where the complaint alleges facts that clearly do not fall within the policy liability coverage provisions and the insurer nevertheless assumes the defense of the action, the insurer may conduct an investigation and, upon determining the true facts and concluding-no coverage exists, may withdraw its defense of the action against the insured without having waived its rights and defenses as to coverage. (Citations omitted). Similarly, where the original complaint fails to allege facts within the policy coverage, if it later becomes apparent from an amended pleading that claims not originally within the scope of the pleadings are being made which are within the insurance coverage, the insurance carrier, upon notification, would become obligated to defend.

Id. at 8145 (emphasis added).

We find appellants other contentions without merit.

AFFIRMED.

DAUKSCH, COBB, W. SHARP, THOMPSON and ANTOON, JJ., concur.

GOSHORN, J., dissents with opinion in which PETERSON, C.J., concurs and GRIFFIN, J., concurs in part.

GRIFFIN, J., dissents, with opinion.

. This is the standard according to Appleman, Insurance Law and Practice, section 4317 and National Indemnity Co. v. Corbo, 248 So.2d 238 (Fla. 3d DCA 1971).

. Except as otherwise provided by statute or principle of public policy, insurance contracts are regarded in the same light as ordinary business contracts between individuals and are subject to the same general principles of construction. The parties áre entitled to make their own contract so long as they do not offend some rule of law or contravene public policy, and a contract which is not uncertain as to meaning and which fulfills these requisites will be enforced as made. It should not be the policy of the court to make a new contract for the parties. Appleman, Insurance Law and Practice, section 7381.