Foremost Insurance Co. v. Levesque

RUDMAN, J.,

with whom LEVY, J., joins, dissenting.

[¶ 17] I respectfully dissent. Robert and Percy were in the course of loading and unloading a vehicle when Percy’s injuries occurred.4 Both Robert and Percy admit this fact in their respective answers. We are not asked to decide whether Robert and Percy’s conduct translated into loading or unloading a truck. The parties have already established this fact. Consequently, the Foremost policy does not provide coverage to Robert for liability for Percy’s injuries.

[¶ 18] On September 5, 2002, Percy Levesque brought a negligence action in the Superior Court (Aroostook County) against Robert Levesque for personal injuries he suffered in the course of moving a washing machine. At the time of the accident, Robert was insured under a homeowner’s policy issued by Foremost. Robert .tendered the defense of the claim to Foremost. The Foremost policy excluded coverage for bodily injury “[a]rising out of the ownership, maintenance, use, loading *249or unloading of ... [a] land motor vehicle designed for use on public roads, owned or operated by or rented or loaned to you.” (Emphasis added.)

[¶ 19] Foremost then filed a complaint seeking a judgment declaring that Foremost be relieved of any duty to indemnify Robert because liability for the injuries arose out of the loading or unloading of a land motor vehicle. See 14 M.R.S.A. § 5954 (2003).

[¶ 20] The issue is whether Foremost is entitled to the relief it sought in its complaint for declaratory relief: “that Foremost Insurance Company [be] relieved of any duty to indemnify Robert Levesque because liability for the injuries complained of in the underlying [negligence] complaint arose out of the loading or unloading of a land motor vehicle.” The majority posits that we have a legal question to resolve, but such is not the case.

[¶ 21] We have previously held that the terms “loading or unloading” in an insurance policy are unambiguous and must be given their plain and ordinary meaning. Union Mut. Fire Ins. Co. v. Commercial Union Ins. Co., 521 A.2d 308, 311 (Me.1987). In Union Mutual we interpreted a homeowner’s insurance policy exclusion that is identical to the one at issue here.5 Id. at 311-12. In that case, we held that the homeowner’s insurance policy exclusion precluded coverage for personal injuries resulting from the accidental discharge of a firearm while being removed for hunting purposes from a vehicle. Id. at 310. Under the facts of Union Mutual, the insured person was unloading cargo (i.e. his shotgun) from his vehicle when it accidentally discharged, injuring a passenger. Id. at 309. We determined that “[t]he insured’s negligent placement of the loaded firearm ... together with his carelessness in unloading the vehicle, provided] a sufficient causal connection between the act of unloading and the consequent injury.” Id. at 311. We followed the Supreme Court of Arizona when it reasoned that: “[t]he unloading does not have to be the cause in the sense of proximate cause of the accident. The accident need only be connected with the unloading.” Id. at 312 (quoting Morari v. Atl. Mut. Fire Ins. Co., 105 Ariz. 537, 468 P.2d 564, 566 (1970)); see also Worcester Ins. Co. v. Dairyland Ins. Co., 555 A.2d 1050, 1052 (Me.1989) (“It is the activity in which the insured is engaged at the time [of the accident] that provides the temporal and spatial nexus that is determinative of the applicability of [the] exclusion in a homeowner’s insurance policy.”). We concluded that under the facts, coverage for injuries arising out of the’ unloading of the vehicle was excluded under the homeowner’s insurance policy exclusion. Union Mut. Fire Ins. Co., 521 A.2d at 312.

[¶ 22] Foremost asserts and the Lev-esques, in their respective answers to Foremost’s material facts, admit that Percy’s injuries occurred during the loading and unloading of Robert’s pickup truck. There is no issue of fact. Foremost’s undisputed statement of material facts and Robert’s answer state, in part:

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(Emphasis added.) Percy admits to all of Foremost’s material facts: “Percy Levesque, admits the Statement of Material Facts set forth in Paragraphs numbered 1 through 14 of Plaintiffs [Foremost’s] Motion for Summary Judgment.”

[¶ 23] The majority would limit “loading or unloading” to lifting on or off the motor vehicle. If the insurer intended that, it could have so provided. Although the majority may not like the result reached, the material facts are undisputed and consequently, we must apply the terms of the Foremost policy to see if Robert is entitled to coverage as a matter of law.

[¶ 24] Although exclusions and exceptions in insurance policies are not generally favored, Gross v. Green Mountain Ins. *251Co., 506 A.2d 1139, 1141 (Me.1986), and are construed strictly against the insurer, Union Mut. Fire Ins. Co., 521 A.2d at 311, coverage under a policy will be excluded when “such separately stated exclusions, when viewed as a whole, unambiguously and unequivocally negate coverage.” Id. (quotation marks and citation omitted). Additionally, “[t]he rule requiring a strict construction against the insurer and a liberal construction in favor of the insured is not applicable unless there is ambiguity in terms of the policy.” Id. (quotation marks and citation omitted).

[¶ 25] Since the Foremost policy clearly and unambiguously excludes coverage for bodily injuries arising out of loading or unloading a motor vehicle, and since both Percy and Robert admit that Percy’s injuries arose out of the loading/unloading of the truck, I would remand to the trial court for entry of a judgment declaring that Foremost owes no duty to Robert for injuries sustained by Percy arising out of their loading/unloading a washing machine on or about September 19,1996.

. The majority’s statement of facts omits the most significant undisputed fact that Robert and Percy were loading and unloading the truck when the injury occurred.

. The homeowner’s policy in Union Mutual stated that personal injuries arising from the "use, loading or unloading” of a vehicle were excluded under the policy. Union Mut. Fire Ins. Co. v. Commercial Union Ins. Co., 521 A.2d 308, 310 (Me.1987).