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                                  2015 PA Super 110

THERESA M. WOLFE, ADMINISTRATRIX                  IN THE SUPERIOR COURT OF
OF THE ESTATE OF KEVIN T. WOLFE,                        PENNSYLVANIA

                            Appellant

                       v.

ROBERT ROSS,
                            Appellee

                       v.

STATE FARM FIRE AND CASUALTY
COMPANY,

                            Appellee                  No. 1048 WDA 2012


                  Appeal from the Order Entered June 21, 2012
                 In the Court of Common Pleas of Butler County
                        Civil Division at No(s): 10-30444


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, SHOGAN, ALLEN,
        OTT, WECHT, STABILE, and JENKINS, JJ.

OPINION BY BOWES, J.:*                                  FILED MAY 07, 2015

        Theresa M. Wolfe, Administratrix of the Estate of Kevin T. Wolfe,

(“Administratrix”), appeals from the trial court’s grant of summary judgment

in favor of State Farm Fire and Casualty Company (“State Farm”) and its

corresponding denial of her motion for summary judgment. The issue before

us is whether the motor vehicle exclusion in Robert Ross’s homeowner’s

policy with State Farm operates to preclude recovery on the facts herein.

____________________________________________


*
    This matter was reassigned to this author on January 9, 2015.
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The trial court concluded that it did, based on this Court’s decision in Wilcha

v. Nationwide Mutual Fire Insurance Company, 887 A.2d 1254

(Pa.Super. 2005).    Administratrix alleges that the exclusion is ambiguous

and inapplicable on the facts herein, and that Wilcha should be limited to

negligent entrustment or supervision cases.        She urges us to adopt and

apply the independent concurrent cause rule announced in State Farm

Mutual Automobile Insurance Company v. Partridge, 514 P.2d 123

(Cal. 1973), as the law of Pennsylvania. After careful review, we affirm.

      Administratrix commenced this civil action for wrongful death and

survival against Robert Ross. She alleged the following. In late June 2002,

Mr. Ross was the host of a graduation party at his residence where alcoholic

beverages were furnished or made available to the guests, including her

decedent,   nineteen-year-old   Kevin.     Kevin   became   impaired   “in   his

judgment, perception, coordination and responses to the point where he was

unable to operate any sort of vehicle safely.” Complaint, ¶7. “As a direct

and proximate result of the impairment caused by the alcohol,” Kevin left

the party on a dirt bike owned by Mr. Ross’s son Justin, “lost control of the

vehicle, struck a fixed object and suffered fatal injuries in the collision.”

Complaint, ¶8. All allegations against Mr. Ross sounded in negligence and

arose from the furnishing of alcohol to the minor.

      State Farm, Mr. Ross’s homeowner’s carrier, refused to defend the

claim and denied coverage based on the policy’s exclusion for injuries arising


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out of the maintenance and use of a motor vehicle owned by an insured.1

Mr. Ross filed a pro se answer to the complaint in which he denied that he

furnished or provided alcoholic beverages to Kevin.        In new matter, he

averred that, to the extent Kevin consumed alcoholic beverages, he was

contributorily negligent, and his own negligence was the proximate cause of

his death.

         Prior to trial, the parties agreed to enter a consent judgment against

Mr. Ross for $200,000. By terms of the agreement, Mr. Ross assigned to

Administratrix all of his rights under his homeowner’s policy with State

Farm, including the right to sue the insurer for breach of contract and bad

faith.    In addition, Mr. Ross agreed to cooperate with Administratrix and

Administratrix agreed to forego execution against any of Mr. Ross’s assets

and to accept any verdict or settlement from any proceeding against State

Farm in full satisfaction of the judgment.        The consent judgment was

entered on March 8, 2010.

         On December 3, 2010, Administratrix proceeded to attempt to collect

the judgment by garnishing the proceeds of Mr. Ross’s State Farm

homeowner’s policy, which had liability limits of $100,000. State Farm and
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1
  We note that the exclusion herein was limited to injuries resulting from use
of an insured-owned vehicle, as in the instant case, or a vehicle operated by
or rented to an insured. It did not exclude coverage for injuries arising out
of use of all motor vehicles.




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Administratrix stipulated to certain facts.        The parties agreed that, “[t]he

plaintiff’s decedent, while operating a motor vehicle, struck a fixed object off

the insured location, and suffered fatal injuries in the collision.”          Joint

Stipulation, ¶3. “[Administratrix] contends that coverage is afforded under

the terms of the State Farm policy, because [her] decedent died as a direct

and proximate result of the impairment caused by the alcoholic beverages

allegedly furnished and/or made available to him at a graduation party for

Ross’ son, which was hosted by Ross, which was covered under the State

Farm policy, the policy limits of which are $100,000.00.” Id. at ¶12. “Ross

denied that alcohol was provided to the guests, and State Farm contends

that even if furnishing alcohol otherwise were covered, the fact that the

decedent’s death arose out of the operation of a motor vehicle triggers an

exclusion which precludes coverage.”             Id. at ¶13.   Finally, the parties

stipulated that “this case is now ripe for a decision as to whether there is

coverage for Ross under the State Farm policy for the claims made in the

underlying lawsuit[.]”2 Id. at ¶16.


____________________________________________


2
   Originally, State Farm retained the right to litigate whether the insured
furnished alcohol, and, if so, whether it was a legal cause of the accident. In
addition, the insurer reserved the right to challenge whether the agreement
between Administratrix and Mr. Ross was fair and reasonable. State Farm
subsequently waived those rights and stipulated that if the court determined
that the policy covered the claim, judgment could be entered against State
Farm for the policy limits of $100,000 without further proceedings. See
State Farm’s Motion for Summary Judgment, at n.1.



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      Both parties filed motions for summary judgment.               The trial court

entered summary judgment in favor of State Farm, and denied same as to

Administratrix.    Administratrix appealed and filed a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal, and the trial court

issued its Pa.R.A.P. 1925(a) opinion.

      Administratrix originally presented two issues:

      A. Whether the trial court erred in failing to find that the motor
         vehicle exclusion in a homeowner’s insurance policy was
         ambiguous in that it did not state whether the injury must be
         proximately caused by use of the motor vehicle or simply
         causally connected with use of the motor vehicle.

      B. Whether the trial court erred in failing to find that the motor
         vehicle exclusion in a homeowner’s insurance policy was
         inapplicable to claims where the motor vehicle was operated
         by the victim and where the only claim of negligence against
         the insured was that he had negligently furnished alcoholic
         beverages to the underage operator of the vehicle.

Appellant’s original brief, at 4.    In her supplemental brief, Administratrix

focuses on distinguishing Wilcha, which involved claims for negligent

entrustment and supervision, from the negligent furnishing of alcohol to a

minor claim herein. She also urges us to apply the independent concurrent

causation   rule   to   find   coverage    on   the   instant   facts.   Appellant’s

supplemental brief at 3.

      In reviewing the grant of summary judgment, we “may disturb the

order of the trial court only where it is established that the court committed

an error of law or abused its discretion.” Murphy v. Duquesne University,

777 A.2d 418, 429 (Pa. 2001) (citations omitted). “The interpretation of an

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insurance policy is a question of law that we will review de novo.” Kvaerner

Metals Div. of Kvaerner U.S., Inc. v. Commercial Union Ins. Co., 908

A.2d 888, 897 (Pa. 2006). The following principles inform our review. “Our

purpose in interpreting insurance contracts is to ascertain the intent of the

parties as manifested by the terms used in the written insurance policy.”

Babcock & Wilcox Co. v. Am. Nuclear Insurers & Mut. Atomic Energy

Liab. Underwriters, 76 A.3d 1 (Pa.Super. 2013).           Where the contract

language is clear and unambiguous, we must give effect to that language

unless it violates a clearly expressed public policy. Adamitis v. Erie Ins.

Exch., 54 A.3d 371 (Pa.Super. 2012). Alternatively, when a policy provision

is ambiguous, it is to be construed in favor of the insured and against the

insurer. Penn-America Ins. Co. v. Peccadillos, Inc., 27 A.3d 259, 265

(Pa.Super. 2011) (en banc). A policy provision is ambiguous only when it is

“reasonably susceptible of different constructions and capable of being

understood in more than one sense” when applied to a particular set of

facts.    Allstate Fire and Casualty Insurance Co. v. Hymes, 29 A.3d

1169, 1172 (Pa.Super. 2011).

         Herein, State Farm based its defense on a policy exclusion. Thus, the

burden was on the insurer to establish its application. Donegal Mut. Ins.

Co. v. Baumhammers, 938 A.2d 286, 290 (Pa. 2007). The homeowner’s

policy in question provides that:

         COVERAGE L- LIABILITY


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     If a claim is made or a suit is brought against an insured for
     damages because of bodily injury or property damage to which
     this coverage applies, caused by an occurrence, we will:

              1. pay up to our limit of liability for the damages for which
                 the insured is legally liable; and

Homeowner’s policy, at 15 (emphasis in original).           An “occurrence” is

defined as:

     7. “Occurrence,” when used in Section II of this policy,
     [Exclusions] means an accident, including exposure to
     conditions, which results in:

              a. bodily injury; or

              b. property damage;

              during the policy period. Repeated or continuous exposure
              to the same general conditions is considered to be one
              occurrence.”

Homeowner’s policy, at 2.

     The exclusion at issue provides:

     Coverage L [liability] and Coverage M [medical payments] do not
     apply to

                                ....

              e. bodily injury or property damage arising out of the
              ownership, maintenance, use, loading or unloading of:

                                ....

                    (2) a motor vehicle owned or operated by or
                    rented or loaned to any insured, or

Homeowner’s policy, at 16 (emphasis in original).        An ATV “owned by an

insured and designed or used for recreational or utility purposes off public


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roads,” is a “motor vehicle” for purposes of liability coverage under the

policy “while off an insured location.” Homeowner’s policy, at 2 (emphasis

in original).3

       The trial court held that the policy provision was not ambiguous on the

facts herein and upheld the plain meaning.       Administratrix assigns this as

error and directs our attention to Eichelberger v. Warner, 434 A.2d 747

(Pa.Super. 1981), where identical language was held to be ambiguous

because it did not define whether it excluded coverage for injuries

proximately caused by the motor vehicle or causally connected with the

motor vehicle.     Since that finding of ambiguity rested upon very different

facts, they are pertinent to our analysis.

       In Eichelberger, the decedent was the driver of a motor vehicle that

ceased operating on a highway, presumably due to a lack of gasoline.

Decedent and her passenger walked to a gasoline station and, upon their

return with fuel, two men stopped to assist the women.        All four persons

were gathered near the rear of the vehicle, the decedent positioned partially

on the highway.       Another vehicle approached and was about to pass the

decedent’s vehicle at the precise moment when the decedent inadvertently

____________________________________________


3
  If the collision had occurred on the insured premises, the ATV would not
have been a motor vehicle within the policy definition, and the exclusion
would not have applied. Additionally, the exclusion would not have been
triggered if Administratrix’s decedent had been operating an ATV or other
motor vehicle that was not owned or rented by the insured.



                                           -8-
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stepped to the left into its path. That vehicle struck decedent and, in the

aftermath, the men who had stopped to render assistance were also injured.

At trial, the jury found both the driver and decedent to be negligent.

      At issue on appeal was whether the liability provisions of decedent’s

vehicle policy and/or her homeowner’s policy provided coverage. Under the

terms of the auto policy, the insurer agreed to pay on behalf of its insured all

damages due to bodily injury or death sustained by any person “arising out

of   the   ownership,   maintenance,    or   use   of   the   owned      vehicle.”

Eichelberger, supra at 749.      We construed the words “arising out of” to

mean the broader "causally connected with" and not "proximately caused

by," in accordance with the Supreme Court’s decision in Manufacturers

Casualty Insurance Co. v. Goodville Mutual Casualty Co., 170 A.2d 571

(Pa. 1961).    We held that “but for” causation, i.e., a cause and result

relationship, was enough to satisfy the vehicle policy provision.             The

decedent’s act of unwittingly stepping into the path of an oncoming car while

overseeing the refueling of her vehicle was causally connected with

ownership, maintenance and use of her vehicle.           See Manufacturers

Casualty, supra (holding a cause and result relationship is enough to

satisfy the "arising out of" provision of an automobile insurance policy).

Thus, there was coverage under the decedent’s automobile insurance policy.

      Under the terms of the decedent’s homeowner’s policy, the insurance

company agreed to pay all damages its insured became legally obligated to


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pay as damages for bodily injury “caused by an occurrence.” Eichelberger,

supra at 750.      An occurrence was defined as "an accident, including

injurious exposure to conditions, which results, during the policy term, in

bodily injury or property damage."     Id. However, the policy contained an

exclusion for liability for bodily injury “arising out of the ownership,

maintenance, operation, use, loading or unloading of . . . any motor vehicle

owned or operated by or rented or loaned to any insured.” Id.

      In determining the applicability of the exclusionary clause in the

homeowner's policy, the issue was whether the injuries to the decedent

arose from the decedent’s use of her motor vehicle. We found the policy to

be ambiguous because it did not state whether the injury had to be

proximately caused by the motor vehicle or simply causally connected with

it. We noted that “different canons of construction applied to exclusionary

clauses as distinguished from coverage clauses” and relied upon the rule in

Manufacturers Casualty, supra.          We held that “for purposes of an

exclusionary clause, when the words ‘arising out of’ the use of an automobile

are read strictly against the insurer, then it must be concluded that this

clause acts to exclude only those injuries which are proximately caused by

the automobile.”   Eichelberger, supra at 752.       When this exclusion was

read strictly against the insurer, it did not apply to the decedent’s conduct as

the injuries were proximately caused by the decedent’s movement, not by

the use of her vehicle.


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       State Farm contends that there is no ambiguity surrounding the words

“caused by” on the facts herein as the motor vehicle was both the proximate

cause and the cause in fact of the injury to decedent.4 The insurer directs

our attention to Wilcha, supra and Allstate Property and Cas. Ins. Co.

v. Filachek, 2011 WL 2111219 (E.D. Pa. 2011), where identical policy

language was held to be unambiguous and enforced on similar facts.       In

addition, the insurer maintains that in Wilcha and Filachek, decided

decades after Eichelberger,5 it was the cause of the injury, not the conduct

of the insured, which determined whether the exclusion applied. According

to State Farm, that is why claims based on the insured’s conduct, such as

negligent entrustment, negligent supervision, and furnishing alcohol to a

minor, do not escape the effect of the exclusion.

       In Wilcha, parents sued the operator of a motor vehicle that collided

with the dirt bike operated by their thirteen-year-old son.      The driver

brought claims of negligent entrustment against the parents.    The parents

did not dispute that the homeowner's policy excluded coverage for accidents

____________________________________________


4
 In McCabe v. Old Republic Ins. Co., 228 A.2d 901, 903, (Pa. 1967), the
phrase "arising out of" used in a policy exclusion was not ambiguous. In
accord Madison Constr. Co. v. Harleysville Mut. Ins. Co., 735 A.2d 100,
110, (Pa. 1999) (finding “arising out of” language in pollution exclusion
unambiguous).
5
  State Farm contends that in Eichelberger, this Court erred in ignoring the
policy language referring to the cause of the bodily injury, and instead
focused on the act that caused liability.



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involving a motor vehicle and that their son was using and/or operating a

motor vehicle, as that term was defined in the homeowner's policy, when

the accident occurred.         The issue was whether the claims of negligent

entrustment and supervision directed toward the Wilchas triggered a duty to

defend on the part of their homeowner’s carrier.

       We relied upon Pulleyn v. Cavalier Insurance Corporation, 505

A.2d 1016, 1020 (Pa.Super. 1986) (en banc), where we held that the insurer

had no duty to defend a negligent entrustment claim against an employer

under a casualty policy which contained an exclusion for personal injury

arising from maintenance or use of an automobile operated by an employee

in the course of his employment. In Pulleyn, we reasoned that it was not

the negligent entrustment of the vehicle that caused the plaintiff's injuries,

but rather the use of the vehicle by the employee that caused the harm.6

       This distinction was also critical in Motorists Mutual Insurance

Company v. Kulp, 688 F. Supp. 1033 (E.D. Pa. 1988), a decision the

Wilcha Court found to be persuasive. In that case, a minor sustained injury
____________________________________________


6
   In Pulleyn v. Cavalier Insurance Corp., 505 A.2d 1016, 1019-21
(Pa.Super. 1986) (en banc), this Court surveyed the evolving case law
regarding the applicability of vehicle use exclusions to negligent entrustment
claims. We acknowledged that some state courts hold that such exclusions
do not bar coverage when an insured is sued for negligent entrustment.
However, Pennsylvania courts have rejected that approach, reasoning that
"although the act of negligently entrusting a motor vehicle is an essential (if
not the primary) element of the tort [of negligent entrustment], liability
giving rise to the tort is not actually triggered until the motor vehicle is used
in a negligent manner resulting in injury." Id. at 1020.



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while riding a mini-bike furnished by his aunt and uncle on adjacent

property.     His parents asserted claims of negligent supervision and

entrustment against the aunt and uncle, and they in turn submitted the

claims to their homeowner’s carrier.   The homeowner’s policy contained a

motor vehicle exclusion that was virtually identical to the one at issue

herein.     The insurer filed a declaratory judgment action to determine

whether the policy provided coverage for the claims.      The district court,

citing Pulleyn, supra, held that the motor vehicle exclusion applied and

precluded coverage as it was the use of the bike that triggered the insureds’

alleged liability, not their negligent supervision or entrustment. In Wilcha,

we called this reasoning “sound” and “consistent with more recent

Pennsylvania jurisprudence.” Wilcha, supra at 1264.

     This Court ultimately concluded in Wilcha that the homeowner’s

insurer had no duty to defend the Wilchas on claims for negligent

supervision and negligent entrustment.      We found no ambiguity in the

exclusionary language. Since the minor’s injuries arose from use of the dirt

bike, the motor vehicle exclusion was applicable.

     Administratrix contends that negligent entrustment and supervision

claims should be treated differently than the alcohol-related claim herein.

She points to Wilcha’s discussion of the negligent entrustment tort in Erie

Insurance Exchange v. Transamerica Insurance Company, 507 A.2d

389 (Pa.Super. 1986), and specifically the fact that negligent operation of


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the entrusted vehicle is an essential element of that tort. She argues that

the decedent’s operation of the motor vehicle was not essential to Mr. Ross’s

liability for negligently serving alcohol to a minor. We find the distinction to

be of no consequence where the policy language excluded coverage for

injuries caused by a motor vehicle, not conduct arising out of use or

maintenance of a motor vehicle.

      In Filachek, supra, a federal district court applied Pennsylvania law in

a declaratory judgment action to determine whether a homeowner’s insurer

had a duty to defend in a case involving both alcohol-related claims and

claims for negligent supervision that were not limited to the use of a motor

vehicle.   Filachek was a passenger in a vehicle owned and operated by

Maher when the vehicle struck and killed Kap.        Prior to getting into the

vehicle that night, Filachek and Maher spent the evening drinking, and

Maher was legally intoxicated. Kap’s personal representative commenced an

action for wrongful death and survival against Maher, Filachek, and a bar

that they had frequented. Liability against Filachek was premised on claims

that he provided Maher with alcohol and encouraged Maher to drink to

excess and failed to supervise Maher’s driving.            Allstate, Filachek’s

homeowner’s carrier, retained counsel on his behalf, but also filed a

declaratory judgment action seeking a declaration that it was not obligated

to defend Filachek because the policy, under two clauses, excluded coverage

for injuries arising from the use, or supervision of the use, of a motor


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vehicle. The first provision excluded coverage for “bodily injury or property

damage arising out of the ownership, maintenance, use, occupancy, renting,

loaning, entrusting, loading or unloading of any motor vehicle or trailer.”

Filachek, supra at *2.    It also contained a vehicle supervision exclusion,

which excluded coverage “for bodily injury arising out of an insured’s

negligent supervision of another or statutorily imposed liability arising from

the ownership, maintenance, use . . . of any aircraft, vehicle or trailer not

covered under that policy.” Id.

     Filachek argued, as Administratrix argues herein, that the terms of the

policy were ambiguous.     Kap’s representative asserted, as Administratrix

asserts herein, that the exclusions were inapplicable because Filachek's

purported negligence was unrelated to the vehicle and constituted a

separate, non-automobile-related cause of injury. The district court rejected

both arguments, finding the liability to be “undeniably intertwined with

Maher’s use of the vehicle that actually gave rise to the injury.” Id. at *4.

The court continued that the vehicle “was the instrumentality of the injury

and the death ‘arose out of the use’ of a motor vehicle.”     Id.   The court

relied upon Wilcha for the proposition that “any liability-inducing conduct

which occurred before such use cannot be divorced from the negligent

driving that led to the fatal car accident.” Id.; Wilcha, supra at 1263 n.3.

     The Filachek court continued that, “the vehicle use exclusion is not

directed at those liability-inducing actions which relate to the ownership,


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maintenance, use, or occupancy of a motor vehicle. Instead, the exclusion

bars coverage for all ‘bodily injury or property damage’ which arises out of

‘the ownership, maintenance, use, occupancy, renting, loaning, entrusting,

loading or unloading of any motor vehicle or trailer.’” Filachek, supra at *4

(emphasis in original). The focus was on the cause of the injury, not on the

conduct of the insured.

      Administratrix attempts to distinguish Filachek as involving claims

that a passenger “negligently plied the driver with alcohol and then

negligently supervised the intoxicated driver’s operation of the vehicle[.]”

Appellant’s supplemental brief at 8. She avers further that, as in Wilcha,

the vehicle was an essential element of the insured’s liability.         Id.

Adminstratrix simply ignores the express language of the exclusion that

focuses on whether the motor vehicle was the cause of the injury, not

whether the insured’s conduct giving rise to liability arose out of use of a

motor vehicle. The fact that the serving of alcohol to a minor subjected Mr.

Ross to liability even without the involvement of a motor vehicle does not

change the fact that the policy language excludes coverage for injuries

arising out of use of a motor vehicle. It is undisputed that the decedent’s

use of the ATV was both the proximate cause and the cause in fact of his

injury.   We find no ambiguity in the exclusionary language on the facts

herein.




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      In her second issue, Administratrix argues that the motor vehicle

exclusion is inapplicable for two reasons.       She contends first that the

exclusion applies only where tortious use of the motor vehicle resulted in

harm to someone other than the operator of the vehicle. A variation of this

argument was advanced and rejected in Wilcha, i.e., that the exclusion was

limited to injuries that arose from the insured's use of a motor vehicle, and

provided coverage for injury or damage arising out of another’s use of

insured’s vehicle. We reject the argument herein as the exclusion expressly

applies to bodily injury arising out of the use of any motor vehicle either

owned by an insured or operated by an insured.             We would have to

disregard the clear policy language, specifically the use of the disjunctive, in

order to credit Administratrix’s proposed construction.

      Administratrix also contends that the exclusion does not apply where,

as here, her claims against Mr. Ross are premised solely on the fact that he

provided alcohol to decedent. It was Mr. Ross’s non-vehicle related conduct,

according to Administratrix, that was the proximate cause of the accident,

and the liability provision of the homeowner’s policy is concerned only with

the conduct of the insured, not with the conduct of the decedent.           The

operation of the dirt bike was “only a fortuitous circumstance under which

the injury occurred.” Appellant’s brief at 14. State Farm counters that the

furnishing of alcohol to the minor decedent was the type of liability-inducing

conduct that preceded the use of the motor vehicle, which the Wilcha Court


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held could not be separated from the negligent driving that culminated in the

accident. Wilcha, supra at 1263 n.3.

      In support of her position, Administratrix urges us to consider the

reasoning of Salem Group v. Oliver, 607 A.2d 138 (N.J. 1992), affirming

590 A.2d 1194 (N.J. Super. 1990), a case virtually identical on its facts.

Therein, an uncle furnished alcohol to his nephew, a minor, while he was

riding the uncle’s ATV. There was an accident and the nephew was injured.

At issue was whether the uncle’s homeowner’s insurance company had a

duty to defend a claim based on his furnishing of alcohol to his nephew.

After recognizing that insurers are generally obligated to defend their

insureds on social host claims, the court framed the question as whether the

insurer can avoid that obligation simply because a separate excluded risk,

the operation of an all-terrain vehicle (ATV), constituted an additional cause

of the injury. It distinguished negligent entrustment or supervision cases,

finding that those claims, in contrast to social host liability claims, could not

be isolated from the ownership and operation of the insured automobile.

      The Salem Court held that the insurer had a duty to defend the social

host count as it provided an additional basis for liability independent of the

insured’s ownership or use of the ATV. It reasoned that one need not own a

motor vehicle in order to serve alcohol to another who, in that case, was a

minor. It viewed the service of alcohol and the ATV as concurrent causes of

the accident for purposes of determining whether the insurer had a duty to


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defend. The court expressly declined, however, to go as far as the California

Supreme Court did in Partridge, supra at 129, and adopt a rule in the

context of a homeowner’s policy that an insurer was required to both defend

and indemnify for "concurrent proximate causes . . . so long as one of the

causes is covered by the policy." The New Jersey Supreme Court qualified in

Salem, “[w]e hold not that the insurer may ultimately be liable under the

policy, but only that it must honor its duty to defend.” Salem, supra at 140

(N.J. 1992).

      Preliminarily, we reject Administratrix’s contention that the nature of

the negligence claim pled, premised solely on social host liability, is

determinative of coverage or the applicability of the exclusion.           In

determining whether there is a duty to indemnify, unlike the duty to defend,

we are not limited to the claims pled.       State Farm Fire & Cas. Co. v.

Decoster, 67 A.3d 40, 46 (Pa.Super. 2013); see also Mutual Benefit Ins.

Co. v. Haver, 725 A.2d 743, 745 (Pa. 1999) (dismissing notion that

complaint’s negligence claims were conclusive of whether an exclusion for

“knowing endangerment” was implicated, and holding it was necessary to

look at the factual allegations contained in the complaint).        Thus, for

purposes of coverage, it matters not that the only causal negligence

asserted against Mr. Ross was his furnishing of alcohol to Kevin.

      Furthermore, Administratrix’s reliance upon Salem is misplaced. The

Salem Court limited its concurrent causation approach to the duty to defend


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and expressly declined to extend that theory to coverage, which is the issue

before us.    See Flomerfelt v. Cardiello, 997 A.2d 991, 1000-1001 (N.J.

2010) (noting that Salem majority limited its holding to an insurer’s duty to

defend only, not a duty to indemnify under a concurrent causation theory).

Moreover, with regard to the duty to defend, Salem is consistent with

current Pennsylvania jurisprudence.            As we noted in Penn-America Ins.

Co. v. Peccadillos, Inc., supra, in ascertaining whether there is a duty to

defend, it is the nature of the claim that is determinative.          Thus, the

obligation to defend is determined by reference to the allegations in the

complaint.    Am. & Foreign Ins. Co. v. Jerry's Sport Ctr., Inc., 2 A.3d

526, 541 (Pa. 2010).7

____________________________________________


7
  In Penn-America, this Court held that allegations that a bar ejected from
its premises a patron so inebriated as to render him a danger behind the
wheel of a car, when liberally construed in favor of the insured, stated a
claim subject to coverage under that establishment’s commercial general
liability policy. Id. We recognized that,

       The duty to defend is a distinct obligation, separate and apart
       from the insurer's duty to provide coverage. Moreover, the
       insurer agrees to defend the insured against any suit arising
       under the policy even if such suit is groundless, false, or
       fraudulent. Since the insurer agrees to relieve the insured of the
       burden of defending even those suits which have no basis in
       fact, the obligation to defend arises whenever the complaint filed
       by the injured party may potentially come within the coverage of
       the policy. American and Foreign Ins. Co. v. Jerry's Sport
       Center, Inc. (Jerry's Sport Center I), 2008 PA Super 94, 948
       A.2d 834, 845-846 (Pa. Super. 2008) (quoting Wilcha v.
       Nationwide Mut. Fire Ins. Co., 2005 PA Super 395, 887 A.2d
       1254, 1258 (Pa. Super. 2005) (emphasis added)).
(Footnote Continued Next Page)


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J-E02005-14


      In a final attempt to escape the exclusion, Administratrix urges this

Court to adopt and apply the independent concurrent cause approach to

indemnity espoused in Partridge, supra, and discussed in Salem.            We

decline to do so for several reasons, not the least of which is that, were we

to do so, it likely would not achieve the result Administratrix seeks in the

instant case.

      In Partridge, the issue before the court was whether the insured was

covered under his homeowner’s policy, his automobile policy, or both, when

his negligent acts, one automobile-related and the other unrelated to a

motor vehicle, were concurrent causes of an accident. The insured enjoyed

hunting and owned a .357 Magnum pistol. Prior to the accident, he filed the

trigger mechanism of the pistol to lighten the trigger pull, creating a hair-

trigger. On the day of the accident, the insured, accompanied by two of his

friends, was driving in the countryside in the insured’s vehicle. He and one

                       _______________________
(Footnote Continued)


Penn-America Ins. Co. v. Peccadillos, Inc., 27 A.3d 259, 265 (Pa.Super.
2011) (en banc). The duty to defend remains until the insurer “clearly
defeats every cause of action averred in the underlying complaint.”

In Penn-America, the liquor liability exclusion, which excluded liability
based on the bar having “caused or contributed to the intoxication” of the
patron, did not limit liability that could be assessed for other reasons, such
as ejecting inebriated patrons who then got behind the wheel of a car. See
also Donegal Mut. Ins. Co. v. Baumhammers, 938 A.2d 286 (Pa. 2007)
(under intentional act exclusion, fact that injuries were caused by intentional
conduct of an insured did not absolve insurer of duty to defend other
insureds whose allegedly negligent conduct enabled that conduct).



                                           - 21 -
J-E02005-14


of his passengers were shooting jackrabbits from the windows of the moving

vehicle and the insured was using his modified .357 Magnum for that

purpose. At one point, the insured drove his vehicle off the paved road to

keep a jackrabbit within the car's headlights. The vehicle hit a bump, and

the pistol, which was either on the insured’s lap or resting on top of the

steering wheel, discharged. The bullet struck the second passenger in the

left arm and penetrated her spinal cord, resulting in paralysis.

      The court interpreted the automobile policy broadly to afford coverage.

It relied on authority finding it was enough that the insured vehicle bore

“some, albeit slight, causal connection with the shooting incident.”        Id. at

100. The homeowner’s policy contained an exclusion for "bodily injury . . .

arising out of the . . . use of . . . any motor vehicle[.]" The trial court found

that the insured had been negligent both in modifying the gun by filing its

trigger mechanism and in driving his vehicle off the paved road onto the

rough terrain. It reasoned that these two negligent acts committed by the

insured were independent, concurrent proximate causes of the passenger’s

injuries, one of which was non-vehicle related and the other related to use of

a motor vehicle.     Since the insured's negligent modification of the gun

sufficed, in itself, to render the insured fully liable for the resulting injuries,

and liability existed independently of the insured’s use of his car, the court

found coverage under the homeowner’s policy.




                                      - 22 -
J-E02005-14


      While Administratrix assumes she would escape the exclusion that

bars coverage herein if we adopted concurrent causation, Partridge’s

progeny suggest otherwise.       As illustrated in Farmers Ins. Exchange v.

Superior Court, 220 Cal. App. 4th 1199 (2013), the concurrent causation

approach does not ipso facto serve to avoid the motor vehicle exclusion in a

homeowner’s policy. In Farmers, a toddler exited her grandparents’ home

without her grandmother’s knowledge to greet grandfather. He unknowingly

drove over the child in the driveway.          A vehicle negligence claim was

asserted against grandfather; a negligent supervision claim was lodged

against grandmother. The trial court held that the motor vehicle exclusion

barred coverage under the grandparents’ homeowner’s policy for the death

of the two-year-old child.

      On appeal, the California Superior Court framed the issue as whether

the two causes were dependent or independent concurrent proximate causes

of the child’s fatal injuries.   The court surveyed California cases involving

such exclusions and observed the following.       In Partridge, supra, State

Farm Fire & Cas. Co. v. Kohl, 131 Cal. App. 3d 1031 (1982), and Ohio

Casualty Ins. Co. v. Hartford Accident & Indemnity Co., 148 Cal. App.

3d 641 (1983), and similar cases, where “the excluded instrumentality did

not play an active role in causing the injury,” courts generally found that the

motor vehicle or other relevant exclusion did not apply.       (quoting Ohio

Casualty, supra at 646); see also, e.g., Safeco Ins. Co. of America v.


                                      - 23 -
J-E02005-14


Parks, 170 Cal. App. 4th 992, 998 (2009). The court distinguished cases

such as National American Ins. Co. v. Coburn, 209 Cal. App. 3d 914

(1989) (motor vehicle rolled over victim) and Prince v. United Nat. Ins.

Co., 142 Cal. App. 4th 233 (2006) (motor vehicle heated up on a hot day),

where the motor vehicle played an active role in causing the injury and was

the only instrumentality of injury.    In such cases, the court observed that

the motor vehicle or relevant exclusion applied to bar coverage. See, e.g.,

Belmonte v. Employers Ins. Co., 83 Cal. App. 4th 430, 434 (2000)

(vehicle exclusion precluded coverage where van negligently driven by

insured's niece hit and injured the victim, even though insured was allegedly

negligent in allowing his niece to obtain the key); Gurrola v. Great

Southwest Ins. Co., 17 Cal. App. 4th 65 (1993) (vehicle exclusion

precluded coverage under comprehensive general liability policy where

insured's negligently driven rebuilt Bantam Coupe killed passenger in

collision, even though the insured was allegedly negligent in welding the

vehicle).   The Farmers Court relied on the latter line of authority and

affirmed the trial court’s holding that the exclusion barred coverage on the

facts before it.

      There is no dispute herein that the motor vehicle played an active role

in and was the instrumentality of the decedent’s fatal injuries. The parties

stipulated that “[t]he plaintiff’s decedent, while operating a motor vehicle,

struck a fixed object off the insured location, and suffered fatal injuries in


                                      - 24 -
J-E02005-14


the collision.”   See Stipulation, ¶3.   Thus, even if we were to adopt the

independent concurrent causation approach first espoused in Partridge, and

apply it consistently with subsequent California case law as it has been

construed, the exclusion would still bar coverage on the facts herein.

      We acknowledge that a number of other jurisdictions have employed

an independent concurrent causation approach to coverage determinations.

However, a closer reading of those cases reveals nuances in its application

from state to state.     For instance, as State Farm notes, some of those

jurisdictions have held that a concurrent proximate cause only escapes an

exclusion if it is truly separate and distinct from the excluded cause. See

Allstate Insurance Company v. Blount, 491 F.3d 903, 911 (8th Cir. 2007)

(Missouri courts determine whether there are concurrent proximate causes

of an injury by determining whether each cause could have independently

brought about the injury); accord Gateway Hotel Holdings, Inc. v.

Lexington Ins. Co., 275 S.W.3d 268, 282 (Mo. Ct. App. 2008); see also

United States Fid. & Guar. Co. v. St. Elizabeth Med. Ctr., 716 N.E.2d

1201, 1205 (Ohio App. 1998) (holding that “when a loss for which an

insured seeks coverage results from two or more causes, at least one of

which is covered under the insurance policy and at least one of which is

excluded, coverage will extend to the loss provided that the cause of loss

covered under the policy is independent of the excluded cause of loss,” i.e.,

“when the covered cause of loss (1) provides a basis for a cause of action in


                                    - 25 -
J-E02005-14


and of itself and (2) does not require the occurrence of the excluded risk to

make it actionable.”). Under the aforementioned tests, the exclusion would

bar coverage on the facts herein.

      In conclusion, we do not find the exclusion to be ambiguous on the

facts herein.    Even interpreting the “injuries arising out of” language

narrowly   “as   proximately    caused    by,”   it   is   undisputed   that   the

instrumentality of Kevin Wolfe’s death was the ATV.         Additionally, we find

the exclusion applicable on the instant facts. Finally, we decline to jettison

our jurisprudence in favor of Partridge or any variation of its concurrent

causation approach. In this Commonwealth, we generally permit insurers to

contractually limit their liability and to impose conditions on their obligations

so long as the limitations and conditions are not in contravention of a statute

or public policy. Administratrix has not alleged that the exclusion is violative

of any statute or public policy. Moreover, with regard to public policy, the

rationale for excluding coverage for injuries arising out of operation or use of

an insured’s vehicle, or an insured’s use of another vehicle in a

homeowner’s policy is obvious: the homeowner’s carrier is seeking to avoid

liability for the losses that attend the higher risks associated with motor




                                     - 26 -
J-E02005-14


vehicles operated on public roads and which are traditionally covered by the

insured’s motor vehicle policy.8

       For all of the foregoing reasons, we find that the motor vehicle

exclusion in the instant case operates to exclude homeowner’s coverage for

the tragic death of Administratrix’s decedent.

       Order affirmed.

       Ford Elliott, P.J.E., Bender, P.J.E., Shogan, Allen, Ott, Stabile, and

Jenkins, JJ. join the Opinion.

       Wecht, J. files a dissenting opinion.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/7/2015




____________________________________________


8
 In recognizing the motivation for the exclusion, we are not suggesting that
homeowner’s insurance and automobile coverages are mutually exclusive.
We expressly rejected that position in Pulleyn v. Cavalier Insurance
Corp., 505 A.2d 1016, 1019-21 (Pa.Super. 1986) (en banc) and
Eichelberger v. Warner, 434 A.2d 747 (Pa.Super. 1981), in favor of
examining each policy on its own terms.



                                          - 27 -
