Stevens v. Fireman's Fund Ins

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Stevens, et al. v. Fireman’s No. 03-3005 ELECTRONIC CITATION: 2004 FED App. 0217P (6th Cir.) Fund Ins. Co., et al. File Name: 04a0217p.06 Before: MARTIN, NELSON, and FRIEDMAN, Circuit Judges.* UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT _________________ COUNSEL

RALPH E. STEVENS, et al., X ARGUED: Michelle R. Dudley, SHAYNE & Plaintiffs, - GREENWALD, Columbus, Ohio, for Appellants. Janet A. - Kachoyeanos, CARON, CONSTANTS & WILSON, - No. 03-3005 Chicago, Illinois, for Appellee. ON BRIEF: Gary D. v. - Greenwald, SHAYNE & GREENWALD, Columbus, Ohio, > for Appellants. Janet A. Kachoyeanos, CARON, , FIREMAN ’S FUND INSURANCE CONSTANTS & WILSON, Chicago, Illinois, for Appellee. - CO ., - _________________ Defendant-Appellee, - - OPINION TRANSYSTEMS, INC., and - _________________ LITTLE BROWNIE PROPERTIES, - - DAVID A. NELSON, Circuit Judge. This is a diversity INC., - case that presents a question as to the applicability, under Defendants-Appellants. - Florida law, of an exclusionary clause in a liability insurance - policy. The appellants — two affiliated corporations engaged N in the trucking business — carried insurance under a single- Appeal from the United States District Court insurer package that included both a commercial motor for the Southern District of Ohio at Columbus. vehicle policy form (or “auto form”) and a commercial No. 01-00275—Edmund A. Sargus, Jr., District Judge. general liability (CGL) policy form. The latter contained an “auto exclusion” clause negating CGL coverage for “[b]odily Argued: March 12, 2004 injury or property damage arising out of the ownership . . . use or entrustment to others of any . . . [land motor vehicle, Decided and Filed: July 9, 2004 trailer or semi-trailer . . .] owned or operated by or rented or loaned to any insured.”

* The Honorable Daniel M. Friedman, Circuit Judge of the United States Court of Appeals for the Federal Circuit, sitting by designation.

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A tractor-trailer owned by one of the appellants and leased In March of 2001 a declaratory judgment action was by it to the other appellant was involved in a collision with a commenced in the United States District Court for the train. Several people were injured in the accident, and there Southern District of Ohio by Norfolk Southern Railway was significant property damage. Company and others against Fireman’s Fund, Transystems, Little Brownie, and the driver of the tractor-trailer. Count III It was asserted in the ensuing litigation that the insurance of the complaint sought a declaration that the general liability company was obligated to indemnify the appellants under form of the Fireman’s Fund policy covered damages resulting both the commercial general liability policy and the motor from Little Brownie’s allegedly negligent dispatch of the vehicle policy, with the two policy limits being aggregated. driver. (The plaintiffs in the declaratory judgment action had This assertion was based on the proposition that the auto previously sued Transystems and Little Brownie, among exclusion clause did not apply where, as here, there was a others, for compensatory and punitive damages. One of the claim that the accident resulted in part from negligence in the claims asserted against Little Brownie was that it had dispatching of a truck driver who should not have been dispatched the driver of the tractor-trailer to a pickup location permitted to drive because he had exceeded an hours-in- at a time when he had exceeded the maximum hours in service limitation. service allowed under the Federal Motor Carriers Safety Regulations; this purported violation was alleged to have been The district court rejected this proposition, holding that the a contributing cause of the collision.) auto exclusion clause meant what it said and effectively barred coverage under the commercial general liability policy. Transystems and Little Brownie filed cross-claims against Upon de novo review we find ourselves in agreement with the Fireman’s Fund, joining in the plaintiffs’ contention that district court’s view; the judgment in favor of the insurance coverage was available under the general liability form. company will therefore be affirmed. Fireman’s Fund then filed a third-party complaint for a declaratory judgment and interpleader, naming train crew I members as defendants. All parties moved for summary judgment. Appellant Transystem, Inc., owned a tractor-trailer that was leased to its affiliate, Appellant Little Brownie Properties, The district court granted Fireman’s Fund’s motion for Inc. In the spring of 1999, while the rig was being driven by summary judgment and denied the other motions. Applying a Transystems employee who had been assigned to operate it Florida law — Florida being the state that had the most by Little Brownie, the tractor-trailer collided with a Norfolk significant relationship to the insurance contract — the court Southern freight train in Perry County, Ohio. The train was held that the “auto exclusion” clause in the general liability derailed, and four members of the train crew were injured. form barred coverage under that form. Final judgment was entered in favor of Fireman’s Fund, whereupon Transystems Transystems and Little Brownie were insured by Appellee and Little Brownie filed a timely appeal. Fireman’s Fund Insurance Company. The contract of insurance included a commercial general liability coverage form and an auto coverage form. Each form had a policy limit of $1 million.

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II 534 (Fla. 1998), where the same court held that a homeowner’s insurance policy covered carbon monoxide The parties agree that the auto form provides coverage of injuries alleged to have been caused “not by the running $1 million in respect of the collision. Our task is to decide engine of the motor vehicle but instead by . . . the negligent whether the general liability form provides additional placement of the air conditioning equipment in the garage, or coverage. by the failure to open the garage door or to ventilate the garage, or by the failure to locate carbon monoxide detection The auto exclusion clause of the general liability form devices throughout the house.” certainly seems to preclude coverage. As noted at the outset of this opinion, the clause excludes from coverage all The majority of Florida’s district courts of appeal that have “[b]odily injury or property damage arising out of the considered such a question, however, have held that general ownership . . . use or entrustment to others of any . . . [land liability policies with auto exclusion clauses provide no motor vehicle, trailer or semi trailer . . .] owned or operated coverage for injuries that would not have occurred but for the by or rented or loaned to any insured.” The bodily injuries use of an auto. Thus where a van was used to pull a roll of and property damage sustained in the collision undoubtedly carpet out of a truck and a man was struck and injured by the arose out of the use of such a vehicle, whether or not they also carpet, the Fifth District Court of Appeal declined to hold that arose out of negligence in the dispatch of the driver. “fail[ure] to have proper equipment (such as a forklift) for the unloading of carpet” was an independent cause of the accident Transystems and Little Brownie contend that the dispatch that could support general liability coverage. Hagen v. Aetna was somehow independent of the use of the tractor-trailer. Casualty & Surety Co., 675 So.2d 963, 965 (Fla. App.), Acceptance of this contention would mean that the companies review denied, 683 So.2d 483 (Fla. 1996). As the court could claim the benefit of at least two Florida appellate explained, decisions. “appellants . . . urge that the negligence was in not Florida’s Fourth District Court of Appeal has held that having a forklift; others might say the ‘plan’ to unload damages arising from an auto accident may be covered by a the carpet was unnecessarily dangerous and would justify general liability policy with an auto exclusion clause if at liability; and still others might find liability simply least one alleged cause of the accident did not involve the use because there was ‘negligence in the way the carpet was of an auto. In a case involving a child’s fall from a truck- unloaded.’ pulled “playground ride,” the Fourth District held that a general liability policy covered the child’s injuries because * * * negligent supervision of the child – which the court viewed as “independent of, and unrelated to,” use of the truck – was But whether we consider . . . ‘the failure to have a alleged as a cause of the accident. Frontier Insurance Co. v. forklift,’ the‘plan’ or the ‘negligent unloading,’ each Pinecrest Preparatory School Inc., 658 So.2d 601, 603 (Fla. necessarily involves the use of the vehicle in the act App.), review denied, 664 So.2d 248 (Fla. 1995); see also which caused the injury.” Id. at 967. Westmoreland v. Lumbermens Mutual Casualty Co., 704 So.2d 176, 187 (Fla. App. 1997), review dismissed, 717 So.2d

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The court concluded that the negligent use of an auto was the considered “independent of, and unrelated to” use of a truck. sole legal cause of the accident. See id. at 968. Frontier Insurance, 658 So.2d at 603. The dispatch has no purpose, after all, other than to get the truck moving. In American Surety & Casualty Co. v. Lake Jackson Pizza, Dispatch, in this respect, is comparable to hiring, supervision, Inc., 788 So.2d 1096, 1099-1100 (Fla. App. 2001), review or retention of a driver – acts that Florida law regards as denied, 814 So.2d 439 (Fla. 2002), Florida’s First District “inextricably intertwined” with the use of an auto. Muzzio, Court of Appeal held that a general liability policy did not 799 So.2d at 274-75. cover claims of negligent hiring, training, and supervision of a pizza delivery man “because the injuries [resulting from an Transystems and Little Brownie rely on Manuel v. Luckett, automobile accident caused by the delivery man] arose out of 577 So.2d 203, 208 (La. App.), writ denied, 580 So.2d 378 the ownership, maintenance, or use of an auto owned or (La. 1991), where a Louisiana court held that one form of operated by an insured.” The employer’s policies and dispatch – a sheriff’s deputy’s coding of a radio call – “did practices did not, in the court’s view, constitute unrelated or not constitute a use of [an] automobile.” But in Manuel the independent causes of the accident. See id. at 1100. court not only heard evidence that “the coding system had a use beyond conveying information on how to use an Absent any contrary indication from the Supreme Court of automobile,” it also heard evidence that deputies frequently Florida, we are inclined to think that Hagen and Lake Jackson responded to coded calls without using an auto. Id. at 206. Pizza, rather than Frontier Insurance and Westmoreland, Against that background the court concluded that “[t]he duty represent the better view. The former cases are more faithful, to properly code a call exists independently of the it seems to us, to the language of the typical auto exclusion automobile.” Id. at 208. In the case at bar, by contrast, there clause – language that asks whether an injury arose from the is no suggestion that Little Brownie’s dispatch of the tractor- use of an auto and not whether every contributing cause trailer driver had any function independent of the use of a involved the use of an auto. Hagen and Lake Jackson Pizza motor vehicle. Little Brownie owed no duty of care to the also draw support from the principle that automobile policies plaintiffs, we believe, except insofar as the dispatch resulted and general liability policies are usually “deemed [to be] in such use. complementary” rather than overlapping. Frontier Insurance, 658 So.2d at 603; see Muzzio v. Auto-Owners Insurance Co., Because the dispatch of a driver is “inextricably 799 So.2d 272, 274 (Fla. App. 2001) (“Florida law has intertwined” with the use of a motor vehicle, there is no view generally recognized that duplicate coverage for an of Florida law under which the appellants’ general liability automobile accident injury covered by an automobile policy form can reasonably be thought to cover the damages in this is not ordinarily available . . . .”), review denied, 817 So.2d case. The auto exclusion clause precludes such coverage, and 848 (2002). the judgment entered in favor of Fireman’s Fund is AFFIRMED. In the circumstances of the case at bar, however, it is probably unnecessary for us to opine on how we think the conflict among Florida’s district courts of appeal should be resolved. It seems to us that dispatch of a truck driver – unlike supervision of a child, for instance – cannot be