      RECOMMENDED FOR FULL-TEXT PUBLICATION
           Pursuant to Sixth Circuit Rule 206            2        Stevens, et al. v. Fireman’s                   No. 03-3005
   ELECTRONIC CITATION: 2004 FED App. 0217P (6th Cir.)            Fund Ins. Co., et al.
               File Name: 04a0217p.06
                                                             Before: MARTIN, NELSON, and FRIEDMAN, Circuit
                                                                                Judges.*
UNITED STATES COURT OF APPEALS
                                                                                _________________
             FOR THE SIXTH CIRCUIT
               _________________                                                     COUNSEL

RALPH E. STEVENS, et al.,          X                     ARGUED:          Michelle R. Dudley, SHAYNE &
                     Plaintiffs, -                       GREENWALD, Columbus, Ohio, for Appellants. Janet A.
                                    -                    Kachoyeanos, CARON, CONSTANTS & WILSON,
                                    -  No. 03-3005       Chicago, Illinois, for Appellee. ON BRIEF: Gary D.
            v.                      -                    Greenwald, SHAYNE & GREENWALD, Columbus, Ohio,
                                     >                   for Appellants.       Janet A. Kachoyeanos, CARON,
                                    ,
FIREMAN ’S FUND INSURANCE                                CONSTANTS & WILSON, Chicago, Illinois, for Appellee.
                                    -
CO .,                               -                                           _________________
           Defendant-Appellee, -
                                    -                                               OPINION
TRANSYSTEMS, INC., and              -                                           _________________
LITTLE BROWNIE PROPERTIES, -
                                    -                       DAVID A. NELSON, Circuit Judge. This is a diversity
INC.,                               -                    case that presents a question as to the applicability, under
        Defendants-Appellants. -                         Florida law, of an exclusionary clause in a liability insurance
                                    -                    policy. The appellants — two affiliated corporations engaged
                                   N                     in the trucking business — carried insurance under a single-
       Appeal from the United States District Court      insurer package that included both a commercial motor
      for the Southern District of Ohio at Columbus.     vehicle policy form (or “auto form”) and a commercial
 No. 01-00275—Edmund A. Sargus, Jr., District Judge.     general liability (CGL) policy form. The latter contained an
                                                         “auto exclusion” clause negating CGL coverage for “[b]odily
               Argued: March 12, 2004                    injury or property damage arising out of the ownership . . .
                                                         use or entrustment to others of any . . . [land motor vehicle,
           Decided and Filed: July 9, 2004               trailer or semi-trailer . . .] owned or operated by or rented or
                                                         loaned to any insured.”



                                                              *
                                                              The Honorable Daniel M. Friedman, Circuit Judge of the United
                                                         States Court of Appeals for the Federal Circuit, sitting by designation.

                           1
No. 03-3005                  Stevens, et al. v. Fireman’s     3    4     Stevens, et al. v. Fireman’s                 No. 03-3005
                                    Fund Ins. Co., et al.                Fund Ins. Co., et al.

   A tractor-trailer owned by one of the appellants and leased       In March of 2001 a declaratory judgment action was
by it to the other appellant was involved in a collision with a    commenced in the United States District Court for the
train. Several people were injured in the accident, and there      Southern District of Ohio by Norfolk Southern Railway
was significant property damage.                                   Company and others against Fireman’s Fund, Transystems,
                                                                   Little Brownie, and the driver of the tractor-trailer. Count III
  It was asserted in the ensuing litigation that the insurance     of the complaint sought a declaration that the general liability
company was obligated to indemnify the appellants under            form of the Fireman’s Fund policy covered damages resulting
both the commercial general liability policy and the motor         from Little Brownie’s allegedly negligent dispatch of the
vehicle policy, with the two policy limits being aggregated.       driver. (The plaintiffs in the declaratory judgment action had
This assertion was based on the proposition that the auto          previously sued Transystems and Little Brownie, among
exclusion clause did not apply where, as here, there was a         others, for compensatory and punitive damages. One of the
claim that the accident resulted in part from negligence in the    claims asserted against Little Brownie was that it had
dispatching of a truck driver who should not have been             dispatched the driver of the tractor-trailer to a pickup location
permitted to drive because he had exceeded an hours-in-            at a time when he had exceeded the maximum hours in
service limitation.                                                service allowed under the Federal Motor Carriers Safety
                                                                   Regulations; this purported violation was alleged to have been
  The district court rejected this proposition, holding that the   a contributing cause of the collision.)
auto exclusion clause meant what it said and effectively
barred coverage under the commercial general liability policy.       Transystems and Little Brownie filed cross-claims against
Upon de novo review we find ourselves in agreement with the        Fireman’s Fund, joining in the plaintiffs’ contention that
district court’s view; the judgment in favor of the insurance      coverage was available under the general liability form.
company will therefore be affirmed.                                Fireman’s Fund then filed a third-party complaint for a
                                                                   declaratory judgment and interpleader, naming train crew
                               I                                   members as defendants. All parties moved for summary
                                                                   judgment.
  Appellant Transystem, Inc., owned a tractor-trailer that was
leased to its affiliate, Appellant Little Brownie Properties,        The district court granted Fireman’s Fund’s motion for
Inc. In the spring of 1999, while the rig was being driven by      summary judgment and denied the other motions. Applying
a Transystems employee who had been assigned to operate it         Florida law — Florida being the state that had the most
by Little Brownie, the tractor-trailer collided with a Norfolk     significant relationship to the insurance contract — the court
Southern freight train in Perry County, Ohio. The train was        held that the “auto exclusion” clause in the general liability
derailed, and four members of the train crew were injured.         form barred coverage under that form. Final judgment was
                                                                   entered in favor of Fireman’s Fund, whereupon Transystems
  Transystems and Little Brownie were insured by Appellee          and Little Brownie filed a timely appeal.
Fireman’s Fund Insurance Company. The contract of
insurance included a commercial general liability coverage
form and an auto coverage form. Each form had a policy
limit of $1 million.
No. 03-3005                  Stevens, et al. v. Fireman’s     5    6      Stevens, et al. v. Fireman’s               No. 03-3005
                                    Fund Ins. Co., et al.                 Fund Ins. Co., et al.

                               II                                  534 (Fla. 1998), where the same court held that a
                                                                   homeowner’s insurance policy covered carbon monoxide
  The parties agree that the auto form provides coverage of        injuries alleged to have been caused “not by the running
$1 million in respect of the collision. Our task is to decide      engine of the motor vehicle but instead by . . . the negligent
whether the general liability form provides additional             placement of the air conditioning equipment in the garage, or
coverage.                                                          by the failure to open the garage door or to ventilate the
                                                                   garage, or by the failure to locate carbon monoxide detection
  The auto exclusion clause of the general liability form          devices throughout the house.”
certainly seems to preclude coverage. As noted at the outset
of this opinion, the clause excludes from coverage all                The majority of Florida’s district courts of appeal that have
“[b]odily injury or property damage arising out of the             considered such a question, however, have held that general
ownership . . . use or entrustment to others of any . . . [land    liability policies with auto exclusion clauses provide no
motor vehicle, trailer or semi trailer . . .] owned or operated    coverage for injuries that would not have occurred but for the
by or rented or loaned to any insured.” The bodily injuries        use of an auto. Thus where a van was used to pull a roll of
and property damage sustained in the collision undoubtedly         carpet out of a truck and a man was struck and injured by the
arose out of the use of such a vehicle, whether or not they also   carpet, the Fifth District Court of Appeal declined to hold that
arose out of negligence in the dispatch of the driver.             “fail[ure] to have proper equipment (such as a forklift) for the
                                                                   unloading of carpet” was an independent cause of the accident
  Transystems and Little Brownie contend that the dispatch         that could support general liability coverage. Hagen v. Aetna
was somehow independent of the use of the tractor-trailer.         Casualty & Surety Co., 675 So.2d 963, 965 (Fla. App.),
Acceptance of this contention would mean that the companies        review denied, 683 So.2d 483 (Fla. 1996). As the court
could claim the benefit of at least two Florida appellate          explained,
decisions.
                                                                       “appellants . . . urge that the negligence was in not
   Florida’s Fourth District Court of Appeal has held that             having a forklift; others might say the ‘plan’ to unload
damages arising from an auto accident may be covered by a              the carpet was unnecessarily dangerous and would justify
general liability policy with an auto exclusion clause if at           liability; and still others might find liability simply
least one alleged cause of the accident did not involve the use        because there was ‘negligence in the way the carpet was
of an auto. In a case involving a child’s fall from a truck-           unloaded.’
pulled “playground ride,” the Fourth District held that a
general liability policy covered the child’s injuries because                             *       *       *
negligent supervision of the child – which the court viewed as
“independent of, and unrelated to,” use of the truck – was             But whether we consider . . . ‘the failure to have a
alleged as a cause of the accident. Frontier Insurance Co. v.          forklift,’ the‘plan’ or the ‘negligent unloading,’ each
Pinecrest Preparatory School Inc., 658 So.2d 601, 603 (Fla.            necessarily involves the use of the vehicle in the act
App.), review denied, 664 So.2d 248 (Fla. 1995); see also              which caused the injury.” Id. at 967.
Westmoreland v. Lumbermens Mutual Casualty Co., 704
So.2d 176, 187 (Fla. App. 1997), review dismissed, 717 So.2d
No. 03-3005                 Stevens, et al. v. Fireman’s     7    8    Stevens, et al. v. Fireman’s                 No. 03-3005
                                   Fund Ins. Co., et al.               Fund Ins. Co., et al.

The court concluded that the negligent use of an auto was the     considered “independent of, and unrelated to” use of a truck.
sole legal cause of the accident. See id. at 968.                 Frontier Insurance, 658 So.2d at 603. The dispatch has no
                                                                  purpose, after all, other than to get the truck moving.
  In American Surety & Casualty Co. v. Lake Jackson Pizza,        Dispatch, in this respect, is comparable to hiring, supervision,
Inc., 788 So.2d 1096, 1099-1100 (Fla. App. 2001), review          or retention of a driver – acts that Florida law regards as
denied, 814 So.2d 439 (Fla. 2002), Florida’s First District       “inextricably intertwined” with the use of an auto. Muzzio,
Court of Appeal held that a general liability policy did not      799 So.2d at 274-75.
cover claims of negligent hiring, training, and supervision of
a pizza delivery man “because the injuries [resulting from an        Transystems and Little Brownie rely on Manuel v. Luckett,
automobile accident caused by the delivery man] arose out of      577 So.2d 203, 208 (La. App.), writ denied, 580 So.2d 378
the ownership, maintenance, or use of an auto owned or            (La. 1991), where a Louisiana court held that one form of
operated by an insured.” The employer’s policies and              dispatch – a sheriff’s deputy’s coding of a radio call – “did
practices did not, in the court’s view, constitute unrelated or   not constitute a use of [an] automobile.” But in Manuel the
independent causes of the accident. See id. at 1100.              court not only heard evidence that “the coding system had a
                                                                  use beyond conveying information on how to use an
   Absent any contrary indication from the Supreme Court of       automobile,” it also heard evidence that deputies frequently
Florida, we are inclined to think that Hagen and Lake Jackson     responded to coded calls without using an auto. Id. at 206.
Pizza, rather than Frontier Insurance and Westmoreland,           Against that background the court concluded that “[t]he duty
represent the better view. The former cases are more faithful,    to properly code a call exists independently of the
it seems to us, to the language of the typical auto exclusion     automobile.” Id. at 208. In the case at bar, by contrast, there
clause – language that asks whether an injury arose from the      is no suggestion that Little Brownie’s dispatch of the tractor-
use of an auto and not whether every contributing cause           trailer driver had any function independent of the use of a
involved the use of an auto. Hagen and Lake Jackson Pizza         motor vehicle. Little Brownie owed no duty of care to the
also draw support from the principle that automobile policies     plaintiffs, we believe, except insofar as the dispatch resulted
and general liability policies are usually “deemed [to be]        in such use.
complementary” rather than overlapping. Frontier Insurance,
658 So.2d at 603; see Muzzio v. Auto-Owners Insurance Co.,          Because the dispatch of a driver is “inextricably
799 So.2d 272, 274 (Fla. App. 2001) (“Florida law has             intertwined” with the use of a motor vehicle, there is no view
generally recognized that duplicate coverage for an               of Florida law under which the appellants’ general liability
automobile accident injury covered by an automobile policy        form can reasonably be thought to cover the damages in this
is not ordinarily available . . . .”), review denied, 817 So.2d   case. The auto exclusion clause precludes such coverage, and
848 (2002).                                                       the judgment entered in favor of Fireman’s Fund is
                                                                  AFFIRMED.
  In the circumstances of the case at bar, however, it is
probably unnecessary for us to opine on how we think the
conflict among Florida’s district courts of appeal should be
resolved. It seems to us that dispatch of a truck driver –
unlike supervision of a child, for instance – cannot be
