Celina Mutual Insurance v. Aetna Life & Casualty Co.

Brickley, J.

(concurring). The argument made by Celina, which was accepted by the Court of Appeals, is that Corrosion Control is an additional insured under § n(d) of the no-fault policy issued by Aetna, and that coverage for Naasko’s injuries otherwise exists under the policy. We agree with the lead opinion’s characterization that "our task is to determine whether Corrosion Control is an *307insured under Aetna’s policy.”1 The lead opinion, we believe, takes the wrong route to answer that question.2 For this reason, we are compelled to write separately, even though we agree with the lead opinion’s ultimate conclusion — that Corrosion Control is not covered under Aetna’s policy. In our judgment, it is ill advised to create new law to resolve a contractual dispute when the case can be simply resolved by interpreting the contract itself. In particular, we find that the lead opinion’s extension of Citizens Ins Co of America v Tuttle, 411 Mich 536; 309 NW2d 174 (1981), is unnecessary and invites confusion.

We prefer to follow the lead of Long Island Lighting Co v Hartford Accident & Indemnity Co, 76 Misc 2d 832; 350 NYS2d 967 (1973), a case cited by neither party. Long Island Lighting Co features a policy substantially identical to Aetna’s, a strikingly similar set of facts, and a more legally responsive approach to the questions presented.

i

The lead opinion correctly observes that Tuttle focused on tort liability.3 In Tuttle, we held that the owner of a cow which wandered onto a road and was hit by a truck could not claim the immunity from tort liability granted in the no-fault act because the liability of the cow’s owner did not *308arise from the ownership, maintenance, or use of a motor vehicle.4 The lead opinion states that Corrosion Control’s wrongful conduct did not arise from the use of the boom truck.5 The conclusion then drawn in the lead opinion is, in our view, somewhat strained. The lead opinion contends that because Corrosion Control’s negligence did not arise from the use of the boom truck, coverage under Aetna’s no-fault policy is unavailable.6

There are, we believe, several problems with this analysis. First, Tuttle involved solely a question of statutory interpretation — did the liability of the cow’s owner arise from the operation, maintenance, or use of a motor vehicle for purposes of statutory immunity from tort liability? Our goal in that case, as in every case involving the interpretation of a statute,7 was to discern the intent of the Legislature. Tuttle, supra, pp 544-546. By contrast, we are asked in this case to determine whether particular acts and omissions are covered by a particular insurance contract. As we explained in Auto Club Ins Ass’n v DeLaGarza, 433 Mich 208, 217; 444 NW2d 803 (1989), the considerations we bring to bear on matters of statutory construction and contract interpretation are not identical. Unless a further link in the lead opinion’s argument is provided to support the conclusion that, in the no-fault context, established principles of insurance contract interpretation are not applicable, we cannot accept the conclusion that Tuttle controls the outcome here.

In addition, the analysis we conducted in Tuttle is simply not necessary in this case. In Tuttle, we *309were required to determine whether the cow owner’s tort liability arose from the operation, maintenance, or use of a motor vehicle in order to decide whether his tort liability had been abrogated. In the instant case, our task of determining whether the operation of Aetna’s omnibus clause renders Corrosion Control an "additional insured” does not require us to embark upon the same inquiry.8 The lead opinion, however, relies on Tuttle to manufacture a rule of law which would restrict the coverage provided under §n(d) of Aetna’s policy9 to motorist defendants whose wrongful acts arise from the operation, maintenance, or use of a motor vehicle.10 Clearly, no such requirement is incorporated in the omnibus clause itself. Nor is the reading of the lead opinion’s "motorist defendant” requirement into the contract justified by some other contractual provision of Aetna’s policy. Moreover, unlike the situation presented in Tuttle, there appears to be no statutory provision obviously applicable to the instant case which would support the engrafting of the motorist-defendant requirement onto Aetna’s omnibus clause. Simply put, the lead opinion has rewritten Aetna’s policy to make it say something that it does not.11

In our judgment, the argument that

[b]ecause the act abrogates tort liability arising from the use, operation, or maintenance of a mo*310tor vehicle, the defendant’s [insured’s?] wrongful conduct, which gives rise to that liability, must also arise from the use, operation, or maintenance of a motor vehicle.[12]

need not be made and is misleading. If Aetna is required to defend and indemnify Corrosion Control, it is not because of any statutory limitation on tort liability, but rather because Corrosion Control is covered under Aetna’s policy.

ii

Upon inspection of Aetna’s policy, we conclude that the following requirements must be satisfied in order for Corrosion Control, the indemnitee, to be covered by the motor vehicle owner’s insurer (Aetna).13 First, the indemnitee must be an insured under Aetna’s policy. Second, the covered injuries or damage must be caused by an occurrence. Third, the injuries or damage must arise out of the operation, maintenance, or use, including loading or unloading, of an automobile. Fourth, the automobile must be an owned or temporary substitute automobile. In resolving the coverage question, we need look no further than the first requirement, which is not satisfied.

Under § n(c)(2) of Aetna’s policy, Naasko qualifies as an insured because he was using the boom truck during loading and was an employee of the named insured, B&L Hotshot, Inc. Section n(d) provides that any other person or organization which becomes liable because of the acts or omissions of an insured under §ii(c) is also an insured. Thus, Celina contends, Corrosion Control is liable because of the acts of Naasko, who was án insured *311under §ii(c); Corrosion Control, argues Celina, is therefore also an insured. In our view, however, the interpretation of the words "because of” suggested by Celina and the Court of Appeals below is too broad.

We would adopt, instead, the analysis of this issue in Long Island Lighting, supra. In that case, a truck operator named McGovern was electrocuted when a boom on the truck touched a high-tension wire maintained by defendant Long Island Lighting Company (lilco). Lilco, like Celina, sought to claim coverage under an automobile insurance policy issued to the owner of the truck. Like Celina, lilco argued that its liability arose "because of” the acts of McGovern and that it was, therefore, an additional insured under the policy. In rejecting lilco’s claim, the court stated:

Lilco rests its case on a broad construction of the words in section n(d), "liability because of acts or omissions of an insured under (a), (b) or (c) above.” It contends any organization is insured with respect to its liability occasioned because of acts or omissions of an insured. Says lilco, in effect, "McGovern’s employee, an insured, drove the truck into the wires, and therefore his act led in sequence to the accident and resulting claim against lilco.” This position is that "but for” McGovern’s acts there would have been no loading, no accident, no lilco liability.
However, the court believes that there is a more circumscribed meaning to "because of” than merely being a sequential link in the chain of events. The words imply a relationship connecting the culpable acts of persons using the vehicle to liability of another, who then becomes an "insured.” The phrase appears to include persons or organizations held in by way of vicarious liability or derelictions of McGovern, its employees, or a consensual user of the vehicle.
*312There is no demonstrated intent to deem as an "insured” just any party whose own separate negligence, apart from the vehicle, was a contributor to an accident.
The end result under lilco’s interpretation would be bizarre. A wholly negligent instrumentality in an accident causing injury to a McGovern employee would then become an "insured” under McGovern’s own policy simply because an employee’s totally faultless act was one sequential factor out of many events leading to an accident. Every person encountering McGovern’s staff would then potentially be an "insured.” A negligent contractor leaving a pothole in the road, a property owner poorly lighting an area, a party who improperly marks off a hazard, would all become "insured” under lilco’s attempted construction when the McGovern car, however innocently driven, met disaster upon their encounter. The end result is too odd to accept. Some rule of reason must accompany the semantic exercises. [Long Island Lighting Co, supra, pp 836-837. Additional emphasis supplied.]

To this analysis we would add the observation that Corrosion Control, if it is indeed liable at all, is liable because of its own negligence, not because it must answer vicariously for the acts of Naasko. If Naasko were to succeed in recovering a tort judgment from Corrosion Control, it would be incumbent on Naasko to demonstrate that Corrosion Control’s negligence was a proximate cause of his damages. Thus, Corrosion Control would not be liable unless it were shown that Corrosion Control’s liability arose not "because of” Naasko’s acts or omissions, but "because of ” its own acts or omissions.

For these reasons, we conclude that Corrosion Control is not an insured under Aetna’s policy and *313that Celina’s claim therefore fails. We concur with the result reached in the lead opinion.

Griffin, J., concurred with Brickley, J.

Ante, p 294 (Archer, J.).

The lead opinion defines the issue before the Court in several different ways. For example, the lead opinion inquires not only whether Corrosion Control is an additional insured under the omnibus clause of Aetna’s policy, but also whether Corrosion Control "used” the boom truck (ante, pp 297-298 [Archer, J.]); whether Naasko’s complaint alleges that Corrosion Control's wrongful conduct arose from the operation, maintenance, or use of a motor vehicle (ante, p 299 [Archer, J.]); and whether Corrosion Control is a motorist defendant whose tort liability falls within the scope of the no-fault act and Aetna’s policy (ante, p 299 [Archer, J.]).

Ante, pp 294-296 (Archer, J.).

MCL 500.3135(2);' MSA 24.13135(2).

Ante, pp 299, 304 (Archer, J.).

Ante, p 299 (Archer, J.).

See Franks v White Pine Copper, 422 Mich 636, 658; 375 NW2d 715 (1985).

See § ii.

The policy language is reproduced at ante, pp 292-293, ns 7-8 (Archer, J.).

Ante, p 297 (Archer, J.).

The lead opinion continues along in the same vein by relying on secondary authority for the propositions that an additional insured must be "legally responsible for the use of an insured vehicle” and bear "some type of relationship” to the named insured (ante, pp 291, n 2, 297 [Archer, J.]). The lead opinion cites neither case law, statutory language, nor policy language to support this judicial modification of the omnibus clause of Aetna’s policy.

Ante, p 304 (Archer, J.).

See ante, pp 292-293, ns 7-8 (Archer, J.).