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Payne v. Acuity6/1/2005
Before Wedemeyer, P.J., Fine and Curley, JJ.
Depositors Insurance Company appeals from an order granting summary judgment to Acuity, a Mutual Insurance Company f/n/a Heritage Insurance Company. The trial court concluded that injuries Ethel M. Payne sustained when her oxygen tank exploded in a car are covered under Depositors's and Acuity's automobile insurance policies, and not Acuity's homeowner's insurance policy. We affirm.
I.
The explosion occurred while Annette Payne, Ethel Payne's daughter, was driving her car. Ethel Payne was in the front passenger seat with her portable oxygen tank, and Rio Payne, Ethel Payne's grandson, was in the back seat. Rio Payne flicked a lighter, the oxygen tank exploded, and a fire erupted. Ethel Payne suffered first and second-degree burns on her hands and feet.
Several insurance policies were potentially in effect at the time of the explosion. Annette Payne had an automobile insurance policy with Acuity that had a per-person liability limit of $50,000. She also had a homeowner's policy with Acuity that had a per-accident personal liability limit of $300,000. Ethel Payne, and her husband, Fletcher Payne, had an automobile insurance policy with Depositors that provided $300,000 in underinsured-motorist coverage.
Ethel and Fletcher Payne sued Acuity, Annette Payne, and Rio Payne. They alleged that Ethel Payne's injuries were caused by: (1) Rio Payne's negligent handling of the lighter, and (2) Annette Payne's negligent supervision of Rio Payne. They further alleged that the accident was covered by Annette Payne's homeowner's insurance or, in the alternative, her automobile insurance.
Depositors moved to intervene in order to assert that Ethel Payne's automobile insurance did not cover the accident. It also requested an order "bifurcating insurance coverage issues ... and staying proceedings until insurance coverage issues have been resolved." Pursuant to a trial-court order, Depositors was allowed to intervene as a defendant, and the insurance-coverage issues were bifurcated from the liability and damages issues.
Annette Payne was deposed. She testified that her mother had emphysema and that for years, when her mother went anywhere in a car, she used a portable oxygen tank to help her breathe. On the day of the explosion, she picked her mother up for a trip to a shopping mall. According to Annette Payne, while she was driving to the mall, she heard a whistling sound coming from the oxygen tank. Her mother made an adjustment to the tank and the whistling stopped. Annette Payne further testified that, at some point during the trip, Rio Payne told her that he saw smoke, but that she did not see or smell any smoke. Three or four minutes later, the oxygen tank exploded. Annette Payne claimed that she did not know Rio Payne had a lighter.
Rio Payne was also deposed. He testified that, on the way to the shopping mall, he heard a whistling noise, which stopped after his grandmother straightened the oxygen tank. According to Rio Payne, he then told his mother that he saw smoke. He further testified that, while he was in the car he was playing with the lighter and the oxygen tank exploded.
Edward M. Schaefer, an engineer with Schaefer Engineering, submitted a report after reviewing the deposition testimony and photographs of the car. He opined that the car was not the source of ignition; rather, the oxygen tank provided the fuel for the fire, and Rio Payne ignited the fire by playing with the cigarette lighter.
Acuity then sought summary judgment that Annette and Rio Payne were covered under its automobile policy and the underinsured provi
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