UNITED STATES FIDELITY & GUARANTY COMPANY
v.
CITIZENS INSURANCE COMPANY OF AMERICA
Docket No. 149280.
Michigan Court of Appeals.
Submitted October 7, 1992, at Marquette. Decided March 25, 1993. Approved for publication September 8, 1993, at 9:05 A.M.Lori, Jaspen & Stopczynski, P.C. (by Daniel M. Jaspen), for the plaintiff.
*492 Davis, Olsen, Filoramo, Jarvi & McNamara, P.C. (by Stephen T. Davis), for the defendant.
Before: CONNOR, P.J., and BRENNAN and MARILYN KELLY, JJ.
PER CURIAM.
This declaratory judgment action was commenced to determine which party was primarily liable for the defense of the Dickinson-Iron Community Action Agency and the satisfaction of a potential judgment. Both parties insured the Agency. The trial court granted summary disposition to defendant. On appeal, plaintiff argues that the court erred in ruling that defendant had no duty to defend or indemnify. We affirm.
The Agency provides bus services for senior citizens. In December, 1985, Marguerite Richard was a passenger on one of its buses. After her ride, Richard got out of the bus, walked behind it and into the street where she was struck by a vehicle and died. On the date of the accident, plaintiff covered the Agency with a general business automobile insurance policy and defendant covered it with a general liability insurance policy.
Richard's estate sued the Agency. Although plaintiff retained counsel to defend it, plaintiff reserved all policy rights and obligations. Richard's complaint alleged in part that the Agency failed to operate the transportation service in a safe manner. It alleged failure to properly train drivers, to provide an escort from the van to Richard's destination and to maintain safety features on the van.
Plaintiff filed a complaint for declaratory relief seeking to determine the rights and obligations of the parties under the Agency's insurance contracts. The trial court granted summary disposition for defendant after concluding that the automobile *493 exclusion in defendant's insurance policy applied.
I
Plaintiff argues that the trial court erred in granting summary disposition to defendant. It asserts that it is defendant that had the duty to defend the Agency and to provide potential indemnification. Defendant's general liability insurance policy provides:
The Company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence, and arising out of the ownership, maintenance or use of the insured premises and all operations necessary or incidental to the business of the named insured conducted at or from the insured premises....
* * *
This insurance does not apply:
* * *
(b) to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of
(1) any automobile or aircraft owned or operated by or rented or loaned to any insured.
The duty of an insurance carrier to provide a defense in an underlying tort action depends upon the allegations in the complaint. It extends to allegations which "even arguably come within the policy coverage." Allstate Ins Co v Freeman, 432 Mich. 656, 662-663; 443 NW2d 734 (1989). However, the duty to defend and the duty to indemnify are not determined solely on the basis of the terminology used in a plaintiff's pleadings. Freeman, 662. *494 Instead, a court must focus on the cause of the injury to ascertain whether coverage exists. Id., 662-663. It is the substance rather than the form of the allegations in the complaint which must be scrutinized. Id.
Plaintiff alleges that Richard's complaint contained two separate theories of liability: (1) damages arising from the Agency's breach of its duty as a transporter, and (2) damages arising from its breach of duty as a caretaker. Plaintiff argues that the damages arising from breach of duty as a caretaker could arguably fall within defendant's general liability insurance policy. Plaintiff acknowledges that it would be liable for damages arising from the Agency's breach of duty as a transporter.
Plaintiff characterizes the allegations in Richard's complaint as theories of liability or recovery, as opposed to theories of causation. The characterization is an apparent attempt to escape the rule enunciated in Vanguard Ins Co v Clarke, 438 Mich. 463; 475 NW2d 48 (1991). The facts in Vanguard are that William Clarke drove home one night, closed the garage door and left the car running. Clarke, his wife and son died from carbon monoxide poisoning. William was still inside the car. His wife and son were inside the home. The Clarkes' homeowners' insurance policy excluded coverage for bodily injury arising out of the ownership, maintenance, operation or use of a motor vehicle. Clarkes' daughter filed a wrongful death action and sought recovery under the insurance policy. She argued that the deaths resulted from not one but two proximate causes, the closing of the garage door and the operation of the automobile.
The issue in Vanguard was whether Michigan should adopt the theory of dual or concurrent causation in the context of insurance liability. *495 Concurrent causation arises when one cause of the injury was insured and one or more additional causes were not. Vanguard, 465. In Vanguard, it was clear that the automobile insurance carrier was liable for damages arising out of the use of the automobile. In fact, the estate received insurance proceeds under William Clarke's automobile insurance policy. Id., 473, n 8. It was less clear whether the homeowners' insurance carrier could be held liable, as well.
The Supreme Court refused to apply the theory of concurrent causation to hold the homeowners' insurance carrier liable. It found no compelling legal basis for or policy reason why the doctrine of dual causation should nullify an unambiguous insurance policy exclusion. Since the homeowners' insurance policy was unambiguous, the Court found that the carrier had no duty to defend or indemnify.
In this case, some of the allegations in Richard's complaint could arguably fall within defendant's general liability insurance policy. However, having examined the substance of Richard's allegations, we agree that, if the Agency is liable, it is for injuries arising from the ownership or use of its bus. See Freeman, 662-663. Had the Agency not owned the bus or operated it in the manner in which it did, there would have been no accident allegedly attributable to it.
Defendant's auto-related insurance policy exclusion is clear and unambiguous. See Vanguard, 471-472. There is no compelling legal basis or policy reason to nullify the policy exclusion. Id., 474-475. Therefore, we refuse to distinguish between the Agency's alleged duties as transporter and caretaker under the facts presented. See Vanguard, 471-472. Moreover, the insured could have had no reasonable expectation that defendant would cover *496 Richard's injuries and subsequent death based on the policy's unambiguous exclusion. See Vanguard, 472. The trial court did not err in granting summary disposition to defendant.
Affirmed.