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County of Kaua v. Scottsdale Insurance Co.5/27/1999
to Hawaii Revised Statutes (HRS) § 577-3. 68 Haw. at 4, 702 P.2d at 302. Like the law enforcement policy in the present case, the defendants' homeowner's policy in Fortune excluded "bodily injury . . . arising out of the ownership, maintenance, operation, use, loading or unloading of . . . any motor vehicle owned or operated by . . . any Insured." Id. at 10, 702 P.2d at 305.
This court acknowledged that it had "long subscribed to the principle that [insurance policies are contracts of adhesion and are to be] construed liberally in favor of the insured and [that] ambiguities [are to be] resolved against the insurer," but noted that "the rule is not applied without exception upon mere assertions of ambiguity. Rather, ambiguity is found [and the rule is followed] only when the contract taken as a whole is reasonably subject to differing interpretation." Id. at 10, 702 P.2d at 306 (citations and internal quotation marks omitted) (some brackets added and some in original). The Fortune court further observed that "what we are committed to enforce are he objectively reasonable expectations of applicants and intended beneficiaries regarding the terms of insurance contracts." Id. at 10-11, 702 P.2d at 306 (citations and internal quotation marks omitted). With respect to the facts before it, the Fortune court engaged in the following analysis:
"The homeowner's policy declared in unambiguous language that it did not apply to bodily injury arising from the operation of a motor vehicle by an insured. The complaint in the personal injury action charged that [the defendants' minor son] drove a motor vehicle in a negligent fashion, his negligence resulted in bodily injury, and his parents were liable for damages. Inasmuch as a court "cannot rewrite the contract of the parties," 12 G. Couch, Cyclopedia of Insurance Law (2d. ed.) § 44A:2 (1981) (footnote omitted), we cannot say liability for [the defendants' minor son's] negligence was within the intendment of the parties."
"Nor are there grounds for inferring the insured could have reasonably expected their homeowner's policy to insure the risk of [their son's] negligence in driving. "Generally speaking, the personal liability provisions of a homeowner's policy bind the insurer to pay damages for which the insured shall become liable as a result of accidents in and around his home." Herzog v. National American Insurance Co., 2 Cal.3d 192, 197, 84 Cal. Rptr. 705, 707, 465 P.2d 841, 843 (1970) (footnote omitted). The use of an automobile "presents hazards not closely associated with the home, for which other insurance is customarily carried and is generally understood to afford coverage." Id. (footnote omitted)"
". . . ." Id. at 11, 702 P.2d at 306.
In HIG, this court extended its holding in Fortune to claims of negligent entrustment. HIG involved a declaratory judgment action filed by a homeowner's insurer, praying for a judgment that it was not obligated to defend its insured in a tort action stemming from a fatal automobile accident that had occurred when a minor was driving a car owned by the named insured and entrusted to the minor by the named insured's son. 68 Haw. at 338-39, 713 P.2d at 429. The homeowner's insurance policy at issue contained a motor vehicle exclusion substantially similar to the one before us in the present case. Id. at 338, 713 P.2d at 429. The defendant-insureds in the underlying tort action argued that "the tort of negligent entrustment arises out of an individual's personal conduct (i.e., his `entrustment') rather than that individual's `ownership, maintenance, operation, use, loading or unloading' of an automobile" and that " he claim of negligent entrustment is a separate and independent cau
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