When the Motor Vehicle Exclusion Doesn’t Apply in Motor Vehicle Accidents
Judgment was obtained against express scientific Transporters, and an equitable garnishment become
later added against the insurance provider by Bowan to gather the judgment. The eastern
District Appellate court agreed with the Trial court docket that the loading and unloading a part of the
motor automobile exclusion did no longer apply because Bowan become now not “property.” The Bowan opinion
observed that the whole exclusion did no longer apply due to the fact below the concurrent proximate purpose
doctrine, the failure to relaxed Bowan within the car was a concurrent proximate cause of her
injuries. The concurrent proximate cause doctrine requires coverage inside the face of an applicable
exclusion if there's a separate and unbiased purpose of the damage from the accident which isn't
excluded by using the coverage. The courtroom then had to determine whether or no longer the failure to cozy
Bowan become a negligent act distinct from the operation of the car and whether that failure to
cozy turned into a concurrent proximate motive of her accidents.
The court mentioned classes of cases interpreting the doctrine. the first category worried
instances wherein the negligence of the defendant is unbiased of or divisible from the use of a
motor vehicle. In Centermark residences, Inc. v. home Indemnity, 897 S.W.2d ninety eight (Mo. App.
E.D. 1995), a stolen car collided with a police officer’s patrol automobile, injuring the police
officer. The court discovered insurance, even though the commercial trendy liability policy
contained an automobile legal responsibility exclusion, primarily based on a separate and wonderful cause of movement for
negligence wherein it changed into claimed that the Centermark employees “did not comply with
processes for apprehending, subduing and controlling third events and humans suspected of
crook activity, and it didn't have right and adequate hiring practices….” id. at one zero one. The
court discovered these allegations to be independent of the possession, preservation or operation of
the automobile. The court also refers to Columbia Mutual v. Neal, 992 S.W.2nd 204 (Mo. App.
E.D. 1999), wherein a child turned into run over with the aid of a car. healthy changed into introduced in opposition to the child’s
grandparents for negligent supervision of the child. The court mentioned that negligent
supervision of a infant changed into separate and wonderful from the operation of the motor car, as
opposed to such claims as negligent entrustment and negligent supervision of employees.
The courtroom did cite different categories of cases, locating that the concurrent proximate motive
doctrine did no longer follow. One such case turned into American States coverage enterprise v. Porterfield,
844 S.W.second thirteen (Mo. App. W.D. 1992). This turned into a Western District of Missouri case in which a
trailer became detached from a truck and struck and injured plaintiffs. It became claimed that the
business enterprise changed into negligent in failing to correctly supervise personnel as to the right method of
hitching the trailer to the truck. The Western District determined that the accidents arose out of the use
of the truck and now not from negligent supervision. coverage did now not observe due to the motor vehicle
exclusion. The court docket additionally noted the case of safe haven Mutual coverage enterprise v. Politte, 663
S.W.2d 777 (Mo. App. E.D. 1983), wherein it turned into discovered that coverage did now not observe because of the
motor automobile exclusion. In Politte there was a declare for negligent entrustment of a vehicle by using a
father to his son. The japanese District court of Appeals located that in a case of negligent
entrustment, the liability of the character entrusting the automobile necessarily arises out of the
operation of the motor vehicle, and the exclusion applies. The Bowan courtroom, nonetheless,
tried to differentiate cases including Politte by the following reasoning:
this case is distinguishable from Politte in that despite the fact that motive force had no longer operated
the van negligently with the aid of violating the site visitors signal and it changed into involved in an
accident while the vehicle was no longer in operation, he nonetheless could have been chargeable for
negligence for the failure ‘to make certain’ Bowan turned into sporting her seat belt.
consequently, the failure to properly at ease Bowan turned into an independent and awesome act of
negligence that did no longer necessarily contain operation of the automobile.
The Bowan case, simply because the Centermark case, both japanese District cases, appear to go out of the
way to discover a concurrent proximate motive for an coincidence that might allow insurance under the
policy. Later reviews, as will be discussed, seem to be moving back from such an excessive
function. though, language in Bowan including the following is troubling:
in addition, this case is distinguishable on the statistics from Porterfield due to the fact in that
case, the court specifically held that the injuries did now not stand up out of the negligent
supervision of personnel however from using the truck. In this situation, we found in
the underlying case that both the failure to correctly comfy Bowan and the
negligent operation of the automobile have been wonderful causes of Bowan’s injuries.
consequently, there existed an independent and awesome act of negligence (the failure
to correctly comfortable Bowan) that changed into a reason of Bowan’s accidents and was not
excluded under the policy. wherein an insured threat and an excluded hazard constitute
concurrent proximate causes of an accident, a liability insurer is in charge so long as
one of the reasons is blanketed through the coverage. Braxton, 651 S.W.2nd at 619.
On a greater nice note, the Bowan court did country:
The finding in this situation, that EMT become answerable for failing to properly cozy Bowan
is similar to the finding in Neal with appreciate to negligent supervision of a infant
who turned into run over by a vehicle. each claims worried individuals who to a few
quantity, needed supervision, and were injured in element because of a loss of
supervision.
choose Gary M. Gaertner, Sr., who authored the opinion in Bowan, refers best to the “operation”
of the vehicle in reasoning that the concurrent proximate reason doctrine applies. that is, he
states that the coincidence in Bowan may want to have ended in injury because of negligence that did not
always “involve operation of the car.” The exclusion excludes insurance for the
“possession, protection or use…of an car…owned or operated by means of or rented to or loaned to
any insured.” The court appears to have not noted motors that have been “owned” or “used” through an
insured and concentrated handiest at the term “operated” via an insured.
cases inside the Western District of Missouri have tended to locate that the exclusion does follow to
accidents brought about inside the course of the operation of a automobile. for example, in Kinnaman-Carson v.
Westport insurance enterprise, 2008 WL 4128057 (Mo. App. W.D. 2008), a Honda
vehicle become saved at ABC’s towing lot. Wallace Hopkins unlawfully took the Honda from
the lot and allowed Ms. Norton to pressure the vehicle in an intoxicated condition. Hopkins become a
passenger within the car on the time of the accident. Norton crossed the middle line and struck
plaintiff’s head-on, inflicting critical damage. Carolyn Carson sued the towing company which had
saved the car in conjunction with Ms. Norton. Theories towards the towing organization covered negligent
hiring, schooling and supervision of personnel and negligent implementation of protection degree
to prevent unauthorized use of stored motors (those are allegations much like the ones in
Centermark, supra, in which the japanese District courtroom of Appeals located coverage). KinnamanCarson
and her husband obtained a judgment in excess of $1 million and filed an equitable
garnishment towards Defendant Westport coverage corporation. Westport defended below its
automobile liability exclusion, which excluded bodily harm arising out of the “ownership” or
use of any car “owned or operated through or rented or loaned to any insured.” the entire
exclusion inside the Westport coverage regarding motor cars is about out under.
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