Builders Mutual Insurance v. North Main Construction, Ltd.

Justice TIMMONS-GOODSON

dissenting.

Because I believe the Sirohis have forecast evidence that establishes as a matter of law the presence of a non-automobile proximate cause, I would hold that the automobile exclusion contained in North Main’s Commercial General Liability Insurance Policy does not apply. Therefore, I respectfully dissent.

*90The sole issue before us is whether Builders Mutual has a duty to defend North Main Construction and Ronald Exware against the Sirohis’ claims that North Main engaged in negligent hiring, supervision, and retention. Because an insurer’s duty to defend is broader than its duty to provide coverage, we need not determine whether North Main will ultimately be held liable or whether Builders Mutual will be required to provide coverage. Waste Management of Carolinas, Inc. v. Peerless Insurance Co., 315 N.C. 688, 691, 340 S.E.2d 374, 377 (1986). Rather, we must determine whether the pleadings contain any facts demonstrating that “the alleged injury is covered by the policy.” Id. If such facts are present, “then the insurer has a duty to defend.” Id. Finally, “[a]ny doubt as to coverage is to be resolved in favor of the insured.” Id. at 693, 340 S.E.2d at 378.

In State Capital Insurance Co. v. Nationwide Mutual Insurance Co., 318 N.C. 534, 547, 350 S.E.2d 66, 74 (1986), we held that “exclusionary language ... should be interpreted as excluding accidents for which the sole proximate cause involves the use of an automobile. If there is any non-automobile proximate cause, then the automobile use exclusion does not apply.” Id. at 547, 350 S.E.2d at 74 (emphasis added). As the majority recognizes, under the facts of State Capital, “negligent mishandling of [a] rifle” was a non-automobile proximate cause. Id. Therefore, the homeowners policy in question provided coverage. Id.

The State Capital decision is in line with our long-standing general rule that “ [exclusions from and exceptions to undertakings by [an insurance company] are not favored, and are to be strictly construed to provide the coverage which would otherwise be afforded by the policy.” Maddox v. Colonial Life & Accident Ins. Co., 303 N.C. 648, 650, 280 S.E.2d 907, 908 (1981); see also Wachovia Bank & Tr. Co. v. Westchester Fire Ins. Co., 276 N.C. 348, 355, 172 S.E.2d 518, 522-23 (1970); Allstate Ins. Co. v. Shelby Mut. Ins. Co., 269 N.C. 341, 346, 152 S.E.2d 436, 440 (1967); Thompson v. Mut. Benefit Health & Accident Ass’n, 209 N.C. 678, 682, 184 S.E. 695, 698 (1936). The majority in the instant case misapplies State Capital.

We have defined proximate cause as “a cause that produced the result in continuous sequence and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such a result was probable under all the facts as they existed.” Mattingly v. N.C. R.R. Co., 253 N.C. 746, 750, 117 S.E.2d 844, 847 (1961) (citing Ramsbottom v. Atl. Coast Line R.R. Co., 138 N.C. 38, 50 S.E. 448 (1905)). In a claim for negligent hiring *91and retention, two separate inquiries must be conducted as to causation: First, did the employee’s actions cause the injury? Second, did the employer’s hiring and retention of the employee cause the injury? See, e.g., Waddle v. Sparks, 331 N.C. 73, 87, 414 S.E.2d 22, 29 (1992) (“An essential element of a claim for negligent retention of an employee is that the employee committed a tortious act resulting in plaintiffs’ injuries.”); Medlin v. Bass, 327 N.C. 587, 591, 398 S.E.2d 460, 462 (1990) (noting that the essential elements of a claim for negligent employment or retention include proof of both the underlying negligent act and that the injury resulted from the employer’s negligent hiring and retention).

Though the majority in the instant case cites State Capital, it applies that case’s proximate cause standard incorrectly when it concludes that North Main’s “actions were harmful to Poonam Sirohi only because Exware was required to drive the company van in the course of his employment.” The Sirohis claim that North Main’s negligent hiring, retention, and supervision of employees regarding the use of drugs and alcohol was a proximate cause of Poonam Sirohi’s injuries. These causes of action impose direct liability for North Main’s negligence, as opposed to vicarious liability for Exware’s use of the vehicle. See Charles E. Daye & Mark W. Morris, North Carolina Law of Torts § 23.10, at 453 (2d ed. 1999). As such, aproximate cause of the harm for the negligent hiring, retention, and supervision claims is North Main’s negligence in hiring, retaining, and supervising Exware, this negligence concurring with Exware’s negligent use of the automobile. North Main’s decision to hire and retain Exware predates the tortious activity that is the subject of this case and is wholly separate from that activity. Thus, while Exware’s operation of a vehicle was a proximate cause of Poonam Sirohi’s injuries, it was not the sole one.

The facts of Nationwide Mutual Insurance Co. v. Davis provide a helpful comparison to the present case. 118 N.C. App. 494, 455 S.E.2d 892, disc. rev. denied, 341 N.C. 420, 461 S.E.2d 759 (1995). In Davis, a young girl was hit by a car after leaving her grandmother’s van to follow her grandmother across the street. Id. at 495-96, 455 S.E.2d at 893. The Court of Appeals found that “the ‘use’ of the van was not the sole proximate cause of the accident; a concurrent cause was [the grandmother’s] negligent supervision of [the girl] when [she] exited the van.” Id. at 501, 455 S.E.2d at 896. Because there was a non-automobile proximate cause, the Court of Appeals held that the automobile exclusion did not apply. Id. In the same way, the automo*92bile that Exware was driving was not the sole proximate cause of Poonam Sirohi’s injuries. Here, North Main’s negligent hiring, retention, and supervision of its employees regarding the use of drugs and alcohol is a concurrent proximate cause.

Whether the Sirohis can ultimately prove that North Main’s negligent hiring, retention, and supervision caused Poonam Sirohi’s injuries is a question for the jury. I would hold, however, that because the Sirohis have forecast sufficient evidence of a non-automobile proximate cause as a matter of law, Builders Mutual must defend North Main under its Commercial General Liability Insurance Policy. Therefore, I respectfully dissent.

Justice MARTIN joins in this dissenting opinion.