concurring.
I concur in the holding which reverses the summary judgment in favor of Indiana Farmers.
I further agree that the lawsuit against Siler and Fuqua premised upon respondeat superior does not preclude Barga’s present claim. The two suits are not inherently inconsistent. It is possible for a reasonable trier of fact to conclude that Siler’s personal use of the vehicle was the predominant use to which the vehicle was being put at the- time and therefore removed the use from the “auto business” exclusion, but that such use was not of such extent as to remove the ease from the earlier determined respondeat superior liability of Siler and Fuqua.
More disquieting, however, is the equating of the term “arising out of’ with the term “caused by” as drawn from Indiana Lumbermens Mut. Ins. Co. v. Statesman Ins. Co. (1973) 260 Ind. 32, 291 N.E.2d 897. See also Lincoln v. Whirlpool Corp. (1972) 151 Ind.App. 190, 279 N.E.2d 596, 599. (In the worker’s compensation area, “the term ‘arising out of refers to the origin and cause of the ‘accident’ ”.) In the Lumbermens case, it is not difficult to understand how the court, perhaps inadvertently, used the “caused by”, or more specifically the “efficient and predominating cause” analysis. In that case, the court was faced with an insurance provision which dealt with “arising out of the ownership, maintenance or use” of the vehicle. The court held that, although the policy expressly included the loading or unloading of the vehicle as a “use”, the accident did not arise out of the use of the truck. Rather, it occurred because of a negligently-maintained stairway to the basement of the residence to which a delivery was being made. In short, the court held that the accident must arise from the use of the truck. The “predominately caused by” analysis was easily seized upon as a means of resolving the issue of non-liability. . The application of the “predominant cause” test is not so easily made when dealing with an “arising out of auto business operations”, as. here.
Certainly, the “arising out of’ requirement suggests that there is a causative factor involved in the analysis. However, to say that the exclusion does not apply unless the injury is “caused by” the business operation is too simplistic. In my view, under few, if any, sets of circumstances would an injury be truly “caused by” an auto business operation. In such instances there is always some act of *580negligence which causes the injury as opposed to the abstraction of the business operation itself. For instance, where a drop of gasoline from a negligently-welded gas tank causes a fire, the causative element may be said to be directly associated with the business operation, but the injury is not caused by the business itself. See Allstate Ins. Co. v. Cincinnati Ins. (1996) Ind.App., 670 N.E.2d 119 (fire caused by leaking gasoline while automobile was on a lift jack for inspection was not covered under a “while being used” policy. The policy did not involve a “maintenance or use” provision as in Lumbermens ).
Perhaps this accounts for the selection of the term “predominant cause” in assessing insurance coverage in that “arising out of’ may involve multiple “causes”. That this is perhaps the correct analysis may be gleaned from the fact that the court in Lumbermens, supra, 291 N.E.2d at 897, in establishing the “efficient and predominating cause” as the test, did so not in the context of “caused by ‘the use’ ” of the vehicle itself (here, it would be “caused by the business operation itself’). Rather, the court held that the efficient and predominating cause “must arise out of the use of the vehicle”. Id. at 899. Thus the test, more accurately stated in the case before us, is whether the efficient and predominating cause, i.e. the negligent driving of the vehicle, arose out of the auto business operation. In other words, if the efficient and predominating cause of the injury was directly and inextricably associated with the conduct of the business operation, it is within the exclusion and there is no coverage.
In applying the Lumbermens test to the case before us, and as we hold today, a factual analysis is required as to whether the “personal use” of the vehicle predominated over the “business operation” use, i.e. the test driving.
Subject to the observations stated herein, I concur.