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Industrial Indemnity Co. of the Northwest v. Central National Insurance Co. of Omaha12/22/2000
early a cause of Douglas Day's injuries. In order for the insured's conduct to constitute "use" of an automobile, the conduct must be essential to the theory of liablity and the specific duty breached by the insured must flow from the use of the automobile. Edwards v. Horstman, 96-1403 at p. 7, 687 So.2d at 1012. If the specific duty breached by the insured existed independently of the automobile, then liability does not arise out of use even though the duty could have been performed by the use of an automobile.
CNIC points out TAT was found to be negligent in sending the wrong type of trailer for the loading job to be accomplished by the seller's employees, which was pre-loading. It argues that even if its policy covers injuries sustained in the loading process, the jury did not assign fault to any of the participants in that process, and therefore, there cannot be any "legal cause" of injury in the loading process, and thus there is no basis for the conclusion that the negligence of TAT was the "use" of a vehicle that was the "legal cause" of the injury to Douglas Day.
We disagree. The loading, and thus use, of the covered vehicle was essential to the theory of liability. TAT's negligence in sending an unsuitable vehicle to accomplish the loading job simply cannot exist independently of the use of the transportation vehicle. Furthermore, our courts have rejected artificial formulas to resolve use issues in favor of a common-sense approach.
In this case, a loading accident occurred on a vehicle covered under CNIC's automobile policy because of the negligence of the insured in providing a vehicle unsuitable for that loading operation. The CNIC policy provides coverage for injuries arising during the loading of the vehicle. On the other hand, the CGL policy excludes coverage for injuries arising from the loading of an automobile. These policies are thus mutually exclusive. Common sense dictates a finding that the automobile policy provided coverage for the injuries sustained by Douglas Day in the loading accident.
For the above reasons, we hold that the CNIC policy provided coverage for Day's injuries, reverse the summary judgment entered in favor of CNIC and grant summary judgment in favor of Industrial on the coverage issue. Industrial's lawsuit also raises issues regarding apportionment of the amounts owed by the respective insurers, its entitlement to costs of the defense and whether it can be reimbursed the costs of bringing this reimbursement lawsuit. Accordingly, we remand this case to the trial court to conduct proceedings not inconsistent with this opinion. Costs of this appeal are assessed to CNIC's successor, Vesta Insurance Company.
REVERSED AND RENDERED; REMANDED.
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