Braxton v. United States Fire Insurance Co.

SMITH, Judge,

dissenting.

In recent years much public clamor has arisen that insurance policies be written in *621simple and concise language. The industry has made attempts to satisfy that clamor. If such attempts are to be successful, policies must be interpreted by the courts in accordance with the usual meaning of such language, without undue straining of that language. I do not believe the majority opinion has so interpreted this policy and I therefore respectfully dissent. I believe the language of the Supreme Court in Harrison v. MFA Mutual Ins. Co., 607 S.W.2d 137 (Mo. banc 1980) [6, 7] is applicable:

“Where language in an insurance contract is unequivocal, it is to be given its plain meaning notwithstanding the fact that it appears in a restrictive provision of a policy ... ‘[T]he courts are not authorized to pervert language or exercise inventive powers for the purpose of creating an ambiguity when none exists.’ ... We refuse to create an ambiguity under the policy language where none exists so as to construe the imaginary ambiguity in such a way to reach a result which some might consider desirable but which is not otherwise permissible under the policy or the law.”

We are here dealing with a liability insurance policy protecting the insured against the consequences of his negligence which cause bodily injury or property damage. That coverage is limited by a special typewritten endorsement which provides:

“In consideration of the premium charged, the following exclusions are added to Coverages C Liability MLB 200:
(P) to bodily injury and property damage arising out of the ownership or use of any firearms ...”

That language is clear enough to me. It states concisely that if the bodily injury arises from the use of a gun it is not covered by the policy. The exclusion is in no way conditioned upon the “use” being that of the insured or “on his behalf” or “for” him. The endorsement makes clear that for a reduced premium the insured elected not to have liability coverage for bodily injury caused by firearms. We are now, under the guise of interpretation, adding coverage which the parties specifically deleted. The case relied upon by the majority, Cochran v. Standard Accident Ins. Co. of Detroit, 219 Mo.App. 322, 271 S.W. 1011 (1925), based its holding on the rule of construction “noscitur a sociis.”1 There the reference to firearms appeared with a group of “conditions” to which, the court concluded, the insured was not to expose himself. His death resulted from a totally unexpected occurrence to which he was without knowledge or consent exposed. There are here no similar “conditions” and the exception to coverage involved deals only with one subject matter. I find the case relied on inapposite except in its recognition that where the exception clearly applies it is to be enforced. Penn v. Travelers’ Ins. Co., 225 S.W. 1033 (Mo.App.1920) is in my opinion controlling and indistinguishable.

In addition to its interpretation argument, the majority adds a second string to the bow, namely that the shooting and the negligent supervision were concurrent or independent torts and so coverage is available because of negligent supervision even if the shooting is excluded. This, of course, ignores the language of the endorsement which excludes coverage for a bodily injury arising out of the use of firearms. The injury here was caused by a firearm. Whether the use of that firearm was the product of the insured’s negligence or not does not change the fact that the injury sustained arose from the non-covered use of a firearm. The insured’s negligent supervision resulted in injury only because of the use of a firearm. The insured’s negligence was in no way concurrent or independent of the use of the firearm.

Further, this second string effectively emasculates the endorsed exclusion and presumably all the other exclusions in the policy. This was a liability policy. Plaintiff based his recovery on a judgment granting *622damages for injuries proximately caused by insured’s negligence. Negligence here consists of a duty to the injured party, a breach of that duty and an act resulting from that breach of duty causing injury. Separating out the duty and breach from the act causing the injury and treating them as independent and separate bases of recovery is a non sequitur. We are not dealing here with concurrent tortious actions by the insured but with the elements of one tort.

I do not find the cases relied upon by the majority applicable. This case does not concern a definition of “use” of a firearm and whether the injury sprung from such use. The meaning of “use” was the issue in some of the cases relied upon by the majority.2 That the injury occurred from the “use” of a firearm is conceded. Nor are we dealing with definitions of business and non-business activities, as was true in another of the cases relied on.3 The remaining cases cited involve different questions than that before us4 with one possible exception.5

I would reverse.

. “The meaning of a word is or may be known from the accompanying words.” Black’s Law Dictionary (5 Rev.Ed.1978).

. State Farm Mutual Automobile Ins. Co. v. Partridge, 10 Cal.3d 94, 109 Cal.Rptr. 811, 514 P.2d 123 (1973); LeJeune v. Allstate Insurance Co., 365 So.2d 471 (La.1978); Curry v. Iberville Parish Sheriff's Office, 405 So.2d 1387 (La.App.1981); Grand Union Co. v. General Accident, Fire & Life Assur. Corp., 254 App.Div. 274, 4 N.Y.S.2d 704 (1938); Engeldinger v. State Auto & Casualty Underwriters, 306 Minn. 202, 236 N.W.2d 596 (Minn.1975).

. New Jersey Property Liability Guaranty Assoc. v. Brown, 174 N.J.Super. 629, 417 A.2d 117 (1980).

. Unigard Mutual Ins. Co. v. Argonaut Ins. Co., 20 Wash.App. 261, 579 P.2d 1015 (1978) (whether exclusion applicable to one insured precludes coverage for another insured liable on a different theory); Brown v. City of Laconia, 118 N.H. 376, 386 A.2d 1276 (N.H.1978) (whether negligent failure to remove snow is an insured hazard of “street cleaning including snow removal” or is excluded as arising from use or condition of the streets); Dora Twp. v. Indiana Ins. Co., 67 Ill.App.3d 31, 23 Ill.Dec. 801, 384 N.E.2d 595 (1979) (meaning of word “controlled”); Snell v. Stein, 261 La. 358, 259 So.2d 876 (La.1972) (was negligent installation and maintenance of a traffic light excluded by exclusion of coverage of streets and sidewalks); Greene v. Raymond, 269 F.Supp. 871 (D.C.Colo.1967) (meaning of “service”); Biwabik Concrete Aggregate Co. v. U.S. Fidelity and Guaranty Co., 206 Minn. 239, 288 N.W. 394 (Minn.1939) (conflict between general coverage clause and exclusionary provision).

. Bulyga v. Underwriters at Lloyd’s, London, 1 Mass.App. 359, 297 N.E.2d 68 (Mass.App.1973). Arguably the court’s decision is based upon a conclusion that the exclusion was limited to non-negligent injury by fireworks. It is also possible to read the opinion as supportive of the majority’s reasoning. If the latter, I do not find it any more persuasive than I do the majority opinion for it suffers from the same vice.