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Oahu Transit Services5/31/2005
FOR PUBLICATION
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
Plaintiff-appellant Oahu Transit Services, Inc. (OTS) and third-party defendant-appellant City and County of Honolulu [hereinafter, "the City"] appeal from the Circuit Court of the First Circuit's March 18, 2003 first amended judgment. As points of error, OTS and the City contend that the circuit court erred in issuing its March 28, 2002 order granting summary judgment in favor of defendant-appellee/third-party plaintiff-appellee Northfield Insurance Company (Northfield) and denying summary judgment in favor of OTS and the City.
The main issue on appeal is whether an automobile exclusion clause in a Commercial General Liability (CGL) insurance policy (providing that no coverage exists for "' odily injury ' or 'property damage' arising out of the ownership, maintenance, use or entrustment to others of any . . . 'auto' . . . owned or operated by or rented or loaned to any insured") applies so as to bar coverage in the instant case. We hold that the circuit court correctly concluded that this exclusion applies and that Northfield is not required to defend or indemnify OTS or the City.
I. BACKGROUND
A. The Parties OTS operates transit services, including paratransit services, for the City. In addition to operating "TheBus" and "TheHandi-Van," OTS contracted with private corporations to provide supplemental services. One such private corporation was Aloha State Cab, Inc. (Aloha State).
B. The Accident
On May 27, 2000, Aloha State was assigned the job of transporting Roy Muramoto to a dialysis appointment. While in transit to the appointment, Muramoto's wheelchair tipped over and Muramoto was pinned in the corner of the van. The driver stopped the van and went to assist Muramoto; Muramoto was strapped into his wheelchair by a belt connected to the chair, and -- according to the driver -- Muramoto asked the driver to disconnect the belt because Muramoto was pinned in the corner and uncomfortable. The driver complied, but when the belt was released, Muramoto collapsed to the floor. Muramoto suffered a spinal cord injury and paralysis of his diaphragm as a result. The record suggests that most, if not all, of Muramoto's injuries occurred when Muramoto collapsed to the floor: the driver had indicated that, when Muramoto was pinned in the corner prior to releasing the belt, Muramoto did not appear to be in distress.
C. The CGL Policy
At the time of the accident, Aloha State had a CGL policy with Northfield. This same CGL policy also listed OTS as an additional insured party. However, although OTS was listed as an additional insured, the CGL policy covered OTS "only with respect to liability arising out of [Aloha State's] operations or premises owned by or rented to [Aloha State]."
The CGL policy provided that Northfield "will pay those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury ' or 'property damage' to which this insurance applies." The policy also contained the following exclusion, which is the focus of the instant case:
This insurance does not apply to:
"Bodily injury " or "property damage" arising out of the ownership, maintenance, use or entrustment to others of any aircraft, "auto" or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and "loading or unloading".
(This exclusion will hereinafter be referred to as "the CGL automobile exclusion.")
D. Procedural History
On August 30, 2001, Muramoto filed his Second Amended Complaint against the City, OTS, and Al
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