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City of Everett v. American Empire Surplus Lines Insurance Co.12/23/1991
reman v. Continental Cas. Co., 770 F.2d 487, 489 (5th Cir. 1985).
Finally, the City argues that because there is a question of fact as to whether its own negligent supervision, training and equipping of Gary Parks or Parks' death proximately caused the claimed damages, the "efficient proximate cause" rule precludes summary judgment under exclusion 6. The City relies on Safeco Ins. Co. of Am. v. Hirschmann, 112 Wash. 2d 621, 773 P.2d 413 (1989) and Graham v. Public Employees Mut. Ins. Co., 98 Wash. 2d 533, 656 P.2d 1077 (1983). Hirschmann and Graham involved the application and interpretation of language in homeowners' insurance policies which excluded losses resulting from or caused by earth movement. In each case, the court was faced with exclusionary language which required it to apply the "efficient proximate cause" rule of all-risk homeowners insurance coverage. This rule states that "where an insured risk itself sets into operation a chain of causation in which the
last step may have been an [excluded] risk, the [excluded] risk will not defeat recovery.'" (Italics omitted.) Hirschmann, 112 Wash. 2d at 626 (quoting Villella v. Public Employees Mut. Ins. Co., 106 Wash. 2d 806, 815, 725 P.2d 957 (1986)).
Recently, in Toll Bridge Auth. v. Aetna Ins. Co., 54 Wash. App. 400, 773 P.2d 906 (1989), this court held that the rule followed in Hirschmann and Graham did not apply to exclusionary language in a ferry terminal facilities policy which used the phrase "arising out of". Noting that the phrase was unambiguous and had a broader meaning than "caused by" or "resulted from", the court concluded that the efficient proximate cause rule did not apply. The court reasoned that a determination of proximate cause was not necessary to a determination of coverage under the policy. Toll Bridge Auth., 54 Wash. App. at 404, 407.
The language of the E&O;policy at issue here precludes coverage for "any damages, whether direct, indirect or consequential, arising from, or caused by . . . death". Although the policy uses the same "caused by" language present in Hirschmann and Graham, it also, as in Toll Bridge, uses the "arising from" language which renders a proximate cause analysis unnecessary. In conformance with our opinion in Toll Bridge, we conclude that "arising from" implies something broader than causation. The phrase is "ordinarily understood to mean 'originating from', 'having its origin in', 'growing out of', or 'flowing from'." Toll Bridge Auth., 54 Wash. App. at 404 (quoting Avemco Ins. Co. v. Mock, 44 Wash. App. 327, 329, 721 P.2d 34 (1986)).
In this case, the damage claim being asserted indisputably "arises from" Gary Parks' death. Indeed, the very existence of Ms. Parks negligence action depends upon the fatal injury sustained by her husband. Accordingly, we hold that coverage for the Parks claim is precluded by exclusion 6. Since summary judgment in favor of American is sustainable
on this basis, we do not reach the issue of whether exclusion 14 would bar coverage or the issue raised in American's cross appeal concerning the City's alleged prior knowledge of the Parks claim.
Affirmed.
Disposition
Holding that the policy was not ambiguous and that an exclusion precluded coverage, the court affirms the judgment.
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