Gurrola v. Great Southwest Insurance

a homeowners policy was a hunting enthusiast who had filed the trigger mechanism of his handgun so that the weapon had a hair-trigger action. The insured and his friends were hunting by shooting from the windows of the insured’s vehicle. The insured hit a bump and the weapon discharged, hitting one of his friends, who, as a result, was paralyzed. (10 Cal.3d at pp. 97-98.) Although the insured’s homeowners policy contained an exclusion for injuries arising out of the use of a motor vehicle, the court held that the policy provided coverage for the injuries sustained. The court found that “although the accident occurred in a vehicle, the insured’s negligent modification of the gun suffices, in itself, to render him fully liable for the resulting injuries. . . . [I]nasmuch as the liability of the insured arises from his non-auto-related conduct, and exists independently of any ‘use’ of his car, we believe the homeowner’s policy covers that liability.” (Id., at p. 103.)

In State Farm Fire & Cas. Co. v. Camara (1976) 63 Cal.App.3d 48 [ 133 Cal.Rptr. 600 ], Partridge was distinguished based on facts that are effectively identical to those involved in our case. In Camara, the insured under a homeowners policy with an auto use exclusionary clause, was driving a dune buggy when a “collision” occurred causing injuries to the plaintiff passenger. The plaintiff alleged that the insured had negligently designed, constructed and assembled the vehicle so as to “ ‘proximately cause the vehicle to overturn.’ ” (Id. at p. 50.) The court held that under Partridge, “the nonvehicle-related cause must be independent of the vehicle-related cause in order for the liability to be covered” by the homeowners policy (id., at pp. 54-55) and found no coverage under that policy. The Camara court pointed out that “the only way in which plaintiff could have been exposed to the claimed design risk was through the operation or use of the motor vehicle.” (Id., at p. 55.) In this case, too, the only way that plaintiff or the decedent could have been exposed to the risk of the negligent welding was through the operation or use of the motor vehicle.

We are aware of no case after Camara which has not applied the principle that a homeowners policy provides no coverage for auto-related accidents unless there are “ ‘two negligent acts or omissions of the insured, one of which, independently of the excluded cause, renders the insured liable for the resulting injuries. [Citations.]’ ” (National American Ins. Co. v. Cobum (1989) 209 Cal.App.3d 914 , 919 [ 257 Cal.Rptr. 591 ], and see discussion therein.)^[2]

Plaintiffs, however, rely on Gonzalez v. St. Paul Mercury Ins. Co. (1976) 60 Cal.App.3d 675 [ 131 Cal.Rptr. 626 ], in which coverage was found under

a homeowners policy with an auto use exclusionary clause, based on the facts that the insured negligently repaired the brakes, “a negligent act occurring on the premises of the insured,” and that the insured was involved in an accident injuring a third party while driving the vehicle. (Id. at p. 680.) We agree, however, with Camara and cases following that the liability must arise from nonvehicular conduct and must exist independently of the use or ownership of the vehicle: “We can only observe that the St. Paul Mercury court has fallen into the same error as the Pacific Employers [Ins. Co. v. Maryland Casualty Co. (1966) 65 Cal.2d 318 ( 54 Cal.Rptr. 385 , 419 P.2d 641 )] court. A hundred similar cases can be conceived. Today the defendant-owner negligently repairs the brakes; tomorrow he carelessly leaves worn tires on the vehicle (which later result in a blowout) or he fails to apply the hand brake when parked on a hill (as a result of which it rolls uncontrolled down the hill). . . . Injury from any such acts unquestionably arises out of the ownership, maintenance, operation, use, etc. of the vehicle, yet under the St. Paul Mercury holding it is still covered when the homeowner’s policy”—here, business liability policy—“clearly says it is not.” (State Farm Fire & Cas. Co. v. Camara, supra, 63 Cal.App.3d at p. 55.)

Plaintiffs, recognizing the uphill battle, rely on Garvey v. State Farm Fire & Casualty Co. (1989) 48 Cal.3d 395 [ 257 Cal.Rptr. 292 , 770 P.2d 704 ], for language which, plaintiffs contend, bolsters their position that Partridge does not say what it said and that Camara and cases following are simply wrong. Garvey cannot rationally be read to support plaintiffs’ hopes. First, Garvey had nothing to do with a third party claim; rather Garvey held that the dual causation concept, allowed in Partridge in third party claims, does not apply in first party claims. (Garvey v. State Farm Fire & Casualty Co., supra, 48 Cal.3d at pp. 406-408.) Second, the language quoted by plaintiffs from Garvey about the intended meaning of Partridge as applied to third party claims is too remote from the issues facing the court in Garvey to be read as a reinterpretation of Partridge, particularly in light of the disclaimer also quoted by plaintiff.^[3]