J-E02005-14

                                 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

STATE FARM FIRE AND CASUALTY
COMPANY,

                            Appellee                     No. 1048 WDA 2012


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


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

DISSENTING OPINION BY WECHT, J.:                           FILED MAY 07, 2015

      I have the utmost respect for the learned Majority’s careful review and

application   of   this    Court’s   three-judge-panel   decision   in   Wilcha   v.

Nationwide Mutual Fire Insurance Co., 887 A.2d 1254 (Pa. Super.

2005).   However, after careful consideration, I am unable to join the

Majority’s analysis or conclusion.

      I would find that Wilcha is distinguishable from the instant matter.

This case’s resolution instead should follow our decision in Eichelberger v.

Warner, 434 A.2d 747, 750-51 (Pa. Super. 1981), and the principles and

authorities we relied upon therein.
J-E02005-14



       Today’s Majority expands Wilcha’s application to new circumstances;

circumstances that, in my view, warrant a different result. In so doing, the

Majority calls into question this Court’s more deeply-rooted precedent

embodied by Eichelberger.              I do not share the Majority’s skepticism

regarding our reasoning in Eichelberger.                It is possible to harmonize

Pennsylvania’s       prior   cases     concerning     vehicle     exclusion     clauses    in

homeowner’s insurance policies more effectively than does the Majority.

Were my views to prevail, we would preserve more fully Pennsylvania’s

enduring commitment to construe ambiguous insurance policy provisions in

favor of coverage for the insured. Thus, I respectfully dissent.

       The    fact    pattern    and     procedural     history     in   this    case     are

straightforward. Theresa Wolfe alleged in the underlying action that, as a

direct and proximate result of Robert Ross’s provision of alcohol to Wolfe’s

son (“Decedent”), Decedent departed on a dirt bike owned by Ross’s son,

lost control of the bike, and struck a fixed object, suffering fatal injuries.

See Maj. Op. at 2.1          Before trial, Wolfe and Ross entered into a consent

judgment for $200,000, pursuant to which Ross assigned to Wolfe his rights

under a homeowner’s policy issued by State Farm, which had denied any

duty to defend or indemnify under the policy’s motor vehicle exclusion.


____________________________________________


1
      The Majority aptly notes that “[a]ll allegations against [Ross] sounded
in negligence and arose from the furnishing of alcohol to the minor.” Maj.
Op. at 2.



                                           -2-
J-E02005-14



Id. at 3.    Thereafter, State Farm waived its right to litigate whether the

insured furnished alcohol and whether the alcohol was a legal cause of

Decedent’s harm; State Farm stipulated that it would remit the policy limits

of $100,000 if the court found as a matter of law that it was obligated to

provide coverage for Wolfe’s claims.

       I need not restate in detail the relevant motor vehicle exclusion at

issue in this appeal, except to note that, as in most of the cases discussed

below, the crux of the matter lies in the meaning of the phrase “arising out

of the ownership, maintenance, use, loading or unloading of . . . a motor

vehicle owned or operated by or rented or loaned to any insured.” See id.

at 6-7 (reproducing the relevant policy provisions in full).2    Accordingly, I

turn directly to my reasons for departing from the learned Majority’s

analysis.

       In Wilcha, the case that, for the parties and the Majority, is the

elephant in the room, a driver brought negligent entrustment claims against

the parents of a child with whom the driver collided while the child was

operating a motor bike.          Faced with a motor vehicle exclusion in their

homeowner’s policy akin to the exclusion in this case, the parents

maintained nonetheless that claims of negligent entrustment and negligent


____________________________________________


2
      Unless otherwise noted, the reader may assume that all motor vehicle
exclusions addressed in this dissent are, for all relevant purposes, identical
in language and scope to the motor vehicle exclusion at issue in this case.



                                           -3-
J-E02005-14



supervision existed independently of the child’s use of the motor bike such

that the insurer had a duty to defend against the claims.

      The Majority’s discussion of Wilcha warrants reproduction:

      [This Court in Wilcha] relied upon Pulleyn v. Cavalier
      Insurance Corp., 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 [that] 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.

      This distinction was also critical in Motorists Mutual Insurance
      Co. 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 while riding a mini-bike furnished by his aunt
      and uncle on [an] 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, 887 A.2d 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.

Maj. Op. at 12-13 (citations modified).


                                     -4-
J-E02005-14



       The Majority next discusses at length an unpublished federal opinion in

Allstate Property and Casualty Co. v. Filachek, Civ. No. 10-3634, 2011

WL 2111219 (E.D.Pa. May 25, 2011) (unpublished). See Maj. Op. at 14-16.

In that case, which, like Kulp, has no more than persuasive value for this

Court,3 the defendant insured, Filachek, spent an evening drinking with his

friend Maher, also a named defendant, at several bars. At the last bar they

visited, the two men remained until closing. While there, Maher “pounded

shots of liquor” in Filachek’s presence. Filacheck, 2011 WL 2111219, at *1.

When the bar closed, Filachek and Maher decided to drive to Atlantic City,

with Maher behind the wheel and Filachek in the passenger’s seat. Maher,

legally drunk by a considerable margin, eventually collided with a car driven

by Kap when Maher was traveling at over 100 miles per hour.                Kap was

killed. Id. at *1.

       The    plaintiff   survivor    brought    suit   against   the   above-named

defendants.     She alleged that Filachek was liable, inter alia, because he
____________________________________________


3
        This principle applies regardless of whether the case was published.
See generally Pantelis v. Erie Ins. Exch., 890 A.2d 1063, 1066 n.3
(Pa. Super. 2006); Roman Mosaic & Tile Co. v. Aetna Cas. & Sur. Co.,
704 A.2d 655, 670 & n.3 (Pa. Super. 1997) (adopting the reasoning of the
Western District of Arkansas district court’s published opinion and rejecting
the appellants’ reliance upon contrary unpublished decisions of a the Eastern
District of Pennsylvania district court). However, that the federal district
court declined to publish its decision arguably reduces that decision’s value
still further. Cf. Ray v. Dep’t of Corrs., No. 453 M.D. 2007, 2008 WL
9405086, at *2 n.4 (Pa. Cmwlth. 2008) (unpublished) (rejecting petitioner’s
reliance upon unpublished federal decisions, noting that the Commonwealth
Court may not even cite its own unpublished decisions).



                                           -5-
J-E02005-14



provided alcohol to Maher and encouraged him to drink excessively, did not

investigate     Maher’s    fitness     to   drive,      failed   to   obtain   alternative

transportation, failed to ensure that Maher operated the vehicle safely, and

failed to take over driving when it became clear that Maher was not able to

operate the vehicle safely. Id.

      Filachek’s insurer assumed his defense under a homeowner’s policy,

but filed a declaratory judgment action contesting its duty to defend on the

basis of the policy’s motor vehicle exclusion. Notably, the insurer also relied

upon a separate policy provision that excluded coverage for “the negligent

supervision by any insured person of any person.” Id. at *2 (quoting the

policy).

      Citing a non-precedential Third Circuit decision and this Court’s

decision   in   Pulleyn,    the      district   court    found   that   both   exclusions

unambiguously applied to bar coverage. Id. at *3 (citing Countryway Ins.

Co. v. Slaugenhop, 360 Fed. App’x 348 (3d Cir. 2010)). Thus, if Filachek

was liable, “such liability [was] undeniably intertwined with Maher’s use of

the vehicle that actually gave rise to the injury. The vehicle Maher drove

was both the instrumentality of the injury and a necessary element

in [the plaintiff’s] theories of liability against both men.”                   Id. at *4

(emphasis added).         Consequently, as in Wilcha, the underlying liability

claim was defined by reference to the stewardship of the driver in relation to

the vehicle’s use.        Put simply, what was at issue was not Filachek’s




                                            -6-
J-E02005-14



supervision of Maher’s drinking, as such, but rather his responsibilities as

defined by encouraging or permitting Maher to drive while intoxicated.4

       In Eichelberger, which I find in principle more on point with the

instant case despite its divergent fact pattern, Herby Eichelberger, one of

several parties injured in a car accident, sued Vivian Warner and the

administrator of the estate of Dava Rice, Warner and Rice being the two

drivers involved in the accident.         The jury found in favor of Eichelberger

against both defendants.         Warner settled the verdict with Eichelberger in

return for an assignment of judgment. Then, Warner filed a praecipe for a

writ of execution against Rice’s homeowner’s and auto insurance policies,

issued respectively by Valley Mutual and Federal Kemper.          The trial court

granted summary judgment in favor of Warner and against Valley Mutual

and Federal Kemper. At issue in the subsequent cross-appeals to this Court

was whether either or both policies were obligated to cover Rice. See 434

A.2d at 748.

       The facts in Eichelberger were as follows: Rice was driving her car,

with her sister in the passenger seat, when the car stopped running. Rice

parked the car as close to the guard rail as possible, but could not remove

the car entirely from the lane of travel. Rice and her sister then traveled on
____________________________________________


4
      Notably, in Filachek, rather than rely exclusively upon the policy’s
motor vehicle exclusion, the district court ruled in the alternative that
coverage was precluded by the policy provision excluding coverage for
“negligent supervision,” which has no analog in the instant case.



                                           -7-
J-E02005-14



foot to obtain gasoline, in hopes that the car merely had run out of fuel.

When they returned with the gas, two good Samaritans, including Herby

Eichelberger, stopped to assist. While the Samaritans prepared to fuel the

vehicle, Rice was standing “slightly on the highway behind her vehicle with

her back to oncoming . . . traffic.”    Id. at 749.   Just then, Warner was

approaching in the partially obstructed lane. As Warner neared the disabled

vehicle, Rice stepped backward into Warner’s path. Warner struck Rice, lost

control of her car, and ran into the rear of Rice’s vehicle, killing Rice and

injuring both Samaritans. A jury found that Warner and Rice both had been

negligent. Id. at 748-49.

     Because our Supreme Court previously had held in Morris v.

American Liability and Surety Co., 185 A. 201 (Pa. 1936), that

“‘maintenance’ as used in the context of an automobile insurance policy

includes all acts [that] come within the ordinary scope and meaning of the

word,” we found it “inescapable that the replacement of fuel [that] has been

exhausted with use[,] and without which a motor vehicle is inoperative, is a

species of maintenance.”    Eichelberger, 434 A.2d at 750 (quoting State

Farm Mut. Ins. Co. v. Pan Am. Ins. Co., 437 S.W.2d 542, 545 (Tex.

1969)). Notwithstanding that Rice had been deemed negligent in stepping

into Warner’s path, we found that Rice’s auto insurance policy was obligated

to provide coverage because “a cause and result relationship is enough to

satisfy the ‘arising out of’ provision of an automobile insurance policy.” Id.




                                       -8-
J-E02005-14



Rice’s negligent act was not “so remote from the ownership, maintenance or

use of her vehicle as to be unconnected with them.” Id.

       Turning to Rice’s homeowner’s policy, we noted that, as in the case

sub judice, it excluded coverage for “bodily injury or property damage

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. Our explanation as to why this deployment of

materially identical language—i.e., “arising out of”—led to different results

vis-à-vis the auto and insurance policies is instructive:

       [C]overage clauses are interpreted broadly so as to afford the
       greatest possible protection to the insured. Mohn v. Am. Cas.
       Co. of Reading, 326 A.2d 346 (Pa. 1974); Penn-Air Inc. v.
       Indem. Ins. Co. of N. Am., 269 A.2d 19 (Pa. 1970); Miller v.
       Prudential Ins. Co. of Am., 362 A.2d 1017 (Pa. Super. 1976)
       (en banc); Celley v. Mut. Benefit Health & Accident Ass’n,
       324 A.2d 430 (Pa. Super. 1974) (en banc). These rules of
       construction are necessary because, as this [C]ourt has noted,
       insurance policies are in essence contracts of adhesion. Ranieli
       v.    Mut.   Life    Ins.   Co.   of   Am.,     413   A.2d   396
                           5
       (Pa. Super. 1979).[ ] Because of these canons of construction,
       it must be emphasized that a homeowner’s policy and an
       automobile policy are not necessarily mutually exclusive. See
       State Farm Mut. Auto Ins. Co. v. Partridge, 514 P.2d 123
       (Cal. 1973) (even though inclusionary clause of homeowner’s
       policies and exclusionary clause of automobile insurance policies
       held by the insured had both been issued by the same insurer
       and contained nearly identical language, such policies were held
       not to be mutually exclusive)[.] As one treatise states:

____________________________________________


5
      See also Adamitis v. Erie Ins. Exch., 54 A.3d 371, 380 (Pa. Super.
2012) (noting that ambiguous provisions should be interpreted in favor of
the insured because “the insurer drafts the policy[] and controls coverage”).



                                           -9-
J-E02005-14


        (S)ome courts and writers have confused further the
        problem of the use of the automobile with the exclusionary
        clauses of the homeowner personal comprehensive liability
        and general liability policies. They have focused attention
        on the exclusions rather than on the insuring agreements.
        The insuring agreements of the policies are not the same.
        The automobile policy agrees to pay all damages ‘* * *
        arising out of the * * * use of the automobile’ whereas the
        general liability policy agrees to pay all damages ‘* * *
        arising out of an occurrence[.’] The exclusion of the
        general liability policy seems to suggest that if the loss
        arises out of the ‘use’ of an automobile away from the
        premises it is excluded. However, such a view ignores the
        insuring agreement on the different policies, and the fact
        that one focuses on an occurrence and the other on the
        automobile. And they are not mutually exclusive. The
        court has a legitimate interest in determining whether the
        use of the automobile was the ‘occurrence’ [that] produced
        the liability. Clearly, if the ‘use’ of the automobile was
        only incidental to the event that produced liability it
        should not be an excluded event under homeowner
        or general liability policies. And, as a California court
        has stated, the courts will give broad construction to the
        coverage provisions but strict construction to the
        exclusions. Thus, there are cases that provide coverage
        under the homeowner’s policy in the absence of a causal
        connection between the use of the vehicle and the
        accident.

        The exclusions of the general liability and homeowner
        policies and the insuring agreement of the automobile
        policy are not mutually exclusive and recovery can be had
        under both polices.

     [7A Appleman, Ins. Law & Practice, § 4500 (1979)]

Eichelberger, 434 A.2d at 751-52 (citations modified; footnote omitted;

emphasis added).

     We then turned to examine the California Supreme Court’s decision in

Partridge, supra:



                                  - 10 -
J-E02005-14


     In Partridge, the Supreme Court of California was asked to
     construe the same language as that which is now before our
     Court, i.e., “arising out of the use” of an automobile. As in the
     case sub judice, this language in Partridge was contained in
     both the inclusionary clause of an automobile policy held by the
     insured and in the exclusionary language of the homeowner’s
     policy. The Partridge court said:

        In view of the (different canons of construction) the fact
        that an accident has been found to ‘arise out of the use’ of
        a vehicle for purposes of an automobile policy is not
        necessarily determinative of the question of whether that
        same accident falls within the similarly worded
        exclusionary clause of a homeowner’s policy. (citations
        omitted)

     Partridge, 514 P.2d at 128.

     In Partridge, the [c]ourt was faced with a situation where the
     insured had committed two negligent acts [that] jointly caused
     the accident. The insured in Partridge had modified a gun by
     filing the trigger so that it had a “hair” trigger. The insured took
     this gun with him in his vehicle when he went to hunt
     jackrabbits. At the time of the accident, the insured intentionally
     drove his vehicle off the paved road and onto . . . bumpy terrain.
     The gun accidentally discharged, injuring the passenger. The
     issue in Partridge was whether the insured’s homeowner’s
     policy, in addition to the insured’s automobile policy, covered
     this accident. We recognize that the Partridge case is factually
     different from the instant case and that the court did find that
     both policies covered the accident for the reason that there were
     two joint causes to the accident[,] one auto-related and one
     non-auto[-]related. Nonetheless, it should be noted that the
     Partridge Court said that “liability under the homeowner’s
     policy could possibly be predicated upon the ambiguity of the
     exclusionary clause in the context of the instant accident . . . .”
     Id. at 129. Such an ambiguity exists under the facts of the
     present case. The exclusionary clause, although it says that the
     policy does not apply to bodily injury “arising out of” the
     ownership, etc., of any motor vehicle, does not state whether
     such injury must be proximately caused by the auto or simply
     causally connected with the auto. . . .         [W]e hold 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

                                    - 11 -
J-E02005-14


     those injuries [that] are proximately caused by the automobile.
     This interpretation is consistent with the general rule that
     insurance policies are read to effect the policy’s dominant
     purpose of indemnity or payment to the insured.

Eichelberger, 434 A.2d at 751-52 (citations modified).

     Nor is this the only aspect of Partridge, which this Court in

Eichelberger     clearly   endorsed   and      adopted   in   part,   that   warrants

consideration. In Partridge, “State Farm contended that because the use of

the car played some causal role in the accident in question, the injuries

‘arose out of the use of the car’ within the meaning of the homeowner’s

exclusionary provision.” Id. 514 P.2d at 126. The Partridge court rejected

that argument:

     Here the “use” of Partridge’s car was not the sole cause of
     Vanida’s injuries but was only one of two joint causes of the
     accident. Thus, even if we assume that the connection of the
     car with the accident is the type of non-ambiguous causal
     relationship [that] would normally bring the exclusionary clause
     into play, the crucial question presented is whether a
     liability insurance policy provides coverage for an
     accident caused jointly by an insured risk (the negligent
     filing of the trigger mechanism) and by an excluded risk
     (the negligent driving).      Defendants correctly contend
     that when two such risks constitute concurrent proximate
     causes of an accident, the insurer is liable so long as one
     of the causes is covered by the policy.

                                      ****

     In the instant case, . . . although the accident occurred in a
     vehicle, the insured’s negligent modification of the gun
     suffices, in itself, to render him fully liable for the
     resulting injuries. Under these facts the damages to Vanida
     are, under the language of the homeowner’s coverage clause,
     “sums [that] the Insured . . . [became] legally obligated to pay”
     because of the negligent filing of the trigger mechanism;
     inasmuch as the liability of the insured arises from his non-auto-

                                      - 12 -
J-E02005-14


       related conduct, and exists independently of any “use” of his car,
       we believe the homeowner’s policy covers that liability.

Id. at 129 (emphasis added).

       Heavily relying upon the reasoning set forth in Partridge, and in light

of the ambiguity we found in the vehicle exclusion, in Eichelberger, we

found that coverage would lie. Although the use of the vehicle was a factual

or “but-for” cause of the accident, the exclusion did not in unambiguous

terms bar coverage when an “occurrence” that, standing alone, would incur

coverage played a proximately causal role in the harm upon which the suit

was based.6      Cf. Penn-Am. Ins. Co. v. Peccadillos, Inc., 27 A.3d 259,

265 (Pa. Super. 2011) (en banc) (holding that provision of alcohol exclusion

did not preclude the duty to defend where, among alcohol-related allegations

that clearly were excluded, the plaintiff also stated a claim for improperly

ejecting intoxicated patron when bar staff knew or should have known that

the plaintiff would attempt to drive).




____________________________________________


6
      At least one court has read Eichelberger as I do. See Kalell v. Mut.
Fire & Auto Ins. Co., 471 N.W.2d 865, 867-69 (Iowa 1991) (reviewing
Eichelberger at length and finding that coverage would lie for damages
arising from pulling a tree limb down by attaching it to a motor vehicle,
because the removal of a tree limb was “an independent act of negligence
and one [that] is covered by the policy,” holding that, “when two
independent acts of negligence are alleged, one vehicle-related and one not
vehicle-related, coverage is still provided under the homeowner[’s] policy
unless the vehicle-related negligence is the sole proximate cause of the
injury”).



                                          - 13 -
J-E02005-14



       It is worth noting that Pennsylvania courts long have recognized

“concurrent causation” in the context of joint and several liability, holding

that “multiple substantial factors may cooperate to produce an injury.”

Harsh v. Petroll, 887 A.2d 209, 218 (Pa. 2005).        Moreover, Partridge’s

concurrent causation approach has been adopted in some form by a

considerable number of our sister states.7
____________________________________________


7
       See Scottsdale Ins. Co. v. Nguyen, 763 P.2d 540 (Ariz. Ct.
App. 1988) (finding coverage where house-moving company employee was
electrocuted when, during moving of house, it came into contact with power
line spanning street); U.S. Fid. & Guar. Co. v. State Farm Mut. Auto.
Ins. Co., 437 N.E.2d 663 (Ill. App. Ct. 1982) (finding coverage where child
was expelled from vehicle operated by day care because other acts of
negligence were asserted against day care); Kalell v. Mut. Fire & Auto.
Ins. Co., 471 N.W.2d 865 (Iowa 1991) (finding that coverage may lie where
injury arose from using pick-up truck to pull down tree limb); Lejeune v.
Allstate Ins. Co., 365 So. 2d. 471, 479 (La. 1978) (finding coverage where
sheriff driving with funeral cortege failed to secure intersection because “the
decisions [the court] could find hold that, where the automobile use
exclusion clause is sought to be applied so as to avoid coverage for injuries
otherwise covered by a general liability policy, the exclusion clause does not
apply where the insured’s act is a result of negligence independent of, even
though concurring with, his use of an automobile”); Waseca Mut. Ins. Co.
v. Noska, 331 N.W.2d 917, 923 (Minn. 1983) (finding homeowner’s
coverage when insured caused a fire while driving smoldering garbage to
landfill: “where act of placing live embers in the uncovered barrels was a
cause of the fires, homeowner’s policy afforded coverage for the risk,
without regard to intervention of the contributing cause consisting of use of
the truck”); Allstate Ins. Co. v. Watts, 811 S.W.2d 883, 887 (Tenn. 1991)
(“[T]here should be coverage in a situation . . . where a non[-]excluded
cause is a substantial factor in producing the damage or injury, even though
an excluded cause may have contributed in some form to the ultimate result
and, standing alone, would have properly invoked the exclusion . . . .”); see
also Wallach v. Rosenberg, 527 So.2d 1386, 1388 (Fla. 3d Dist. Ct. App.
1988) (quoting Couch, 11 Couch on Insurance 2d § 44:268 (rev. ed. 1982))
(finding a jury question regarding coverage under all-risk policy where
(Footnote Continued Next Page)


                                          - 14 -
J-E02005-14



      In my view, the best way to reconcile Eichelberger with Wilcha is to

recognize that the gist of all of the claims in Wilcha, Filachek, Pulleyn,

and most of the other cases cited by the Majority addressed failures of

supervision or entrustment directly associated with the use or operation of a

vehicle.   In these cases, not only did the accident result from the use or

operation of the vehicle, but the underlying tort claim could not be separated

from the vehicle’s operation.            In none of those cases did the act of

negligence at issue entirely precede the introduction of a motor vehicle into

                       _______________________
(Footnote Continued)

weather combined with negligence to cause loss because policy did not
“contain[] a provision [that] specifically exclude[d] coverage where a
covered and an excluded cause combine to produce a loss,” and noting that
such coverage may lie even when the insured risk is not “the prime or
efficient cause of the accident”), disagreed with by American Home
Assurance Co., Inc., v. Sebo, 141 So.3d 195 (Fla. 2d Dist. Ct. App. 2013),
review granted by Sebo v. Am. Home. Assur. Co., Inc., No. SC14-897,
2014 WL 5093402 (Fla. Oct. 7, 2014); Braxton v. U.S. Fire Ins. Co., 651
S.W.2d 616, 619-20 (Mo. Ct. App. 1983) (finding coverage under
comprehensive property policy containing exclusion for harm “arising out of
the ownership or use of any firearm” where underlying claim was for
negligent supervision of employee who shot and injured customer); Houser
v. Gilbert, 389 N.W.2d 626, 630-31 (N.D. 1986) (holding that vehicle
insurer and farm liability insurer must share pro rata in judgment where
vehicle-related act of negligence and non-vehicle-related act of negligence
were involved in truck accident caused by mud carried onto highway by
insured’s vehicle); S. Burlington v. Am. Fid. Co., 215 A.2d 508 (Vt. 1965)
(finding duty to defend despite “streets and sidewalks” exclusion, where
injuries arose from negligent maintenance of culvert that caused plaintiff’s
car to fall into sinkhole in road); Lawver v. Boling, 238 N.W.2d 514, 521
(Wis. 1976) (finding that, when “a covered risk and an excluded risk
concurred in causing injury,” it is “apparent that the insurer . . . is not being
held to provide coverage for a risk [that] it did not contemplate and for
which it received no premium”).




                                           - 15 -
J-E02005-14



the events precipitating the injury—or, as in Eichelberger and Partridge,

work in tandem with, but independently of, the vehicle’s use—such as the

provision of alcohol based upon which Wolfe asserts Ross’s liability in the

instant matter.

     The Majority dismisses this distinction with little discussion:

     [Wolfe] 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[.]”   [Wolfe’s] Supplemental Brief at 8. . . .    [Wolfe]
     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 [the] use of a motor vehicle. The fact that the
     serving of alcohol to a minor subjected [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 [dirt bike] was both the proximate cause
     and the cause in fact of the injury. We find no ambiguity in the
     exclusionary language on the facts herein.

Maj. Op. at 16.

     This analysis is irreconcilable with our reasoning in Eichelberger,

which, unlike Wilcha, et al., involved an assertion of coverage based upon a

negligent act—stepping in front of Warner’s vehicle—that might have been

associated with the use of the automobile but was not inextricable from that

use, as would be the case in a claim for negligent entrustment or

supervision.   Indeed, the Majority’s rejection of Wolfe’s argument would

have required the contrary result in Eichelberger: There, also, we arguably

“simply ignore[d] the express language of the exclusion that focuses on


                                    - 16 -
J-E02005-14



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

insured’s conduct giving rise to liability arose out of [the] use of a motor

vehicle.” Maj. Op. at 16. And it is telling that the “express language” of the

motor vehicle exclusion in the instant matter does not address causation

head-on, rendering it as ambiguous on this point as we deemed it to be in

Eichelberger.8

       The distinction between Eichelberger and Wilcha is highlighted

implicitly by the Majority’s failure to cite any case in which the same or a

similar motor vehicle exclusion was deemed unambiguously to exclude

coverage that did not sound substantially in negligent supervision or

entrustment, or in some equivalent circumstance where the insurance

excluded coverage for an otherwise covered cause that was inextricably



____________________________________________


8
       Notably, the court in Lawver, supra, interpreted Partridge as relying
not upon ambiguity in resolving the case in favor of coverage but, in a
stronger determination, that it suffices that one covered risk independently
contributes to the injury because that risk expressly is covered by the policy.
See Lawver, 238 N.W.2d at 521-22.            We acknowledged as much in
Eichelberger, but opted for the more restrained course of ruling that the
language in question was ambiguous. Eichelberger, 434 A.2d at 752
(quoting Partridge, 514 P.2d at 129) (“We recognize that the Partridge
case is factually different from the instant case and that the court did find
that both policies covered the accident for the reason that there were two
joint causes to the accident[,] one auto-related and one non-auto[-]related.
Nonetheless, it should be noted that the Partridge Court said that ‘liability
under the homeowner’s policy could possibly be predicated upon the
ambiguity of the exclusionary clause in the context of the instant
accident . . . .’”).



                                          - 17 -
J-E02005-14



intertwined with an excluded cause.9 It warrants emphasis that whether an

insurance contract is ambiguous must be assessed in context; what is

unambiguous in one circumstance may nonetheless be ambiguous in

another. See generally Eichelberger, 434 A.2d at 750-51. Thus, it is by

no means untenable to maintain that the motor vehicle exclusion requires a
____________________________________________


9
       See, e.g., Maj. Op. at 23-26 (citing Farmers Ins. Exch. v. Super.
Court, 163 Cal. Rptr. 3d 609 (Cal. App. 2013) (finding no coverage for
negligent operation of truck by homeowner who ran over and killed
granddaughter); Prince v. Un. Nat’l Ins. Co., 47 Cal. Rptr. 3d 727 (Cal.
App. 2006) (finding no coverage under foster mother’s homeowner’s policy
where she left children in hot car and they died); Belmonte v. Employers
Ins. Co., 99 Cal. Rptr. 2d 661 (Cal. App. 2000) (finding no coverage for
negligent supervision where the child’s injurious use of a van constituted the
single proximate cause of the injuries); Gurrola v. Great S.W. Ins. Co., 21
Cal. Rptr. 2d 749 (Cal. App. 1993) (finding no coverage where the claimed
negligent welding of a vehicle was intertwined with the use of the motor
vehicle that led to injury); Nat’l Am. Ins. Co. v. Coburn, 257 Cal. Rptr.
591 (Cal. App. 1989) (finding no coverage where parents failed to set
parking brake while loading vehicle and a child moved the gear lever out of
“park”); see also U.S. Fid. & Guar. Co. v. St. Elizabeth Med. Ctr., 716
N.E.2d 1201 (Ohio App. 1998) (finding no coverage under malpractice
exclusion for a claim of negligent credentialing because, like negligent
entrustment of vehicle, the malpractice was necessary to, rather than
independent of, the harm)). The Majority cites the above litany of California
cases in an effort to establish that, even under Partridge, Wolfe would not
be entitled to coverage, reading them either as abrogating Partridge or
limiting it in such a way as to preclude coverage under the instant facts.
See Maj. Op. at 23-25. But as the above parenthetical descriptions make
clear, none of the cited cases involved independent, non-vehicular causes
like the filing of the trigger mechanism in Partridge or the provision of
alcohol in the instant case. Indeed, post-Partridge cases cannot fairly be
said to have abrogated or diminished that case. Rather, these cases
reinforce my view that entrustment and supervision cases can be
distinguished on a principled basis from cases like the matter before us,
where the vehicle served as the instrument of an injury that arose from
vehicle-independent tortious conduct.



                                          - 18 -
J-E02005-14



different result in an entrustment case than in a case of concurrent or

independent causation.

     The Majority distinguishes Eichelberger on the basis that it “rested

upon very different facts,” Maj. Op. at 8, from those in the instant case.

However, after reviewing that case, id. at 8-10, the Majority offers no

material comment as to how those factual differences lead the Majority to

conclude that this Court should favor Wilcha and Filachek, a non-binding

federal case that essentially echoed Wilcha, over our earlier decision in

Eichelberger.     Specifically, the Majority does not effectively distinguish

Eichelberger’s conclusion that an exclusion materially identical to the

exclusion in the instant case was ambiguous, and thus must be read in favor

of the insured, because the policy did not specify whether the phrase

“arising out of” applied both when the vehicle was an incidental or factual

cause of the accident and when the vehicle was the proximate cause of the

accident.   Indeed, rather than distinguish Eichelberger from the instant

case, the Majority seems to rely upon the proposition that we should favor

Wilcha merely because it is more current than Eichelberger. See Maj. Op.

at 11 (observing that Wilcha and Filachek were “decided decades after

Eichelberger”).    However, as one justice of our Supreme Court recently

observed, a court “should not frustrate the fundamental principles of stare

decisis by overturning a case that does not contravene the doctrinal

underpinnings of our existing precedent and is not factually similar in regard

to several crucial aspects [of] the case at bar.” Commonwealth v. Moore,

                                    - 19 -
J-E02005-14



103 A.3d 1240, 1255 (Pa. 2014) (Baer, J., concurring). I would not declare

the desuetude of an older case when a principled distinction from

subsequent cases provides ample explanation for the cases’ disparate

outcomes.

     The Majority also rejects Wolfe’s invitation to adopt the reasoning of

the New Jersey Supreme Court in Salem Group v. Oliver, 607 A.2d 138

(N.J. 1992). See Maj. Op. at 18-20. In Salem Group, the minor plaintiff

was injured while operating the insured’s ATV after the insured had given

him alcohol.   The court found that the insurer at least was obligated to

defend the social host liability claims these events engendered:

     No one disputes that insurers are generally obligated to defend
     their insureds on social host claims. The critical question is
     whether the insurer can avoid that obligation because a separate
     excluded risk, the operation of an all-terrain vehicle (ATV),
     constitutes an additional cause of the injury. We find that the
     insurer remains obligated to defend the covered risk. It may not
     avoid that obligation simply because the operation of an ATV
     constitutes an additional cause of the injury.

                                   ****

     It is not at all clear that the exclusion for the operation of an ATV
     is to apply when the insured provides liquor to the victim, who
     then drives the insured’s ATV. Arguably, the exclusion does not
     apply in that context.          When a policy fairly supports an
     interpretation favorable to both the insured and the insurer, the
     policy should be interpreted in favor of the insured.

     A contrary conclusion could defeat the reasonable expectations
     of the insured, which should be respected to the extent the
     policy’s language allows. In certain contexts, if Newman had
     provided an ATV, alcoholic beverages, or both, the policy
     apparently would cover a resulting accident. Arguably, if the
     accident had occurred while [plaintiff] was driving the ATV on
     [the insured’s] property, [the insured] would be covered. Or if

                                    - 20 -
J-E02005-14


       [the insured] had provided [plaintiff] with alcohol and the
       accident had occurred while [plaintiff] was driving another’s ATV,
       [the insured] arguably would be covered.              Given those
       possibilities and the wording of the exclusion, [the insured] could
       reasonably expect that the policy would cover him when he
       provided both the ATV and the alcoholic beverages that
       contributed to the causation of an accident not on [the insured’s]
       property.

Id. at 139 (citations omitted).10         Notably, the New Jersey Supreme Court

rejected the insurer’s reliance upon two New Jersey precedents finding no

coverage on the basis that those cases, unlike Salem Group, presented

negligent entrustment or supervision claims inextricably intertwined with the

operation of a vehicle. Salem Group, 607 A.2d at 139. The court held that

“[t]hose opinions proceed[ed] on the assumption that negligent entrustment

or supervision of a motor vehicle is intertwined with the ownership and

operation of the motor vehicle. . . . In contrast, the serving of alcohol to a

minor does not depend on the insured’s ownership of a motor vehicle or its

entrustment to another.” Id. at 140.

       The Majority makes much of the fact that at issue in Salem Group

was the insurer’s duty to defend the claim, not its obligation to provide

coverage.     See Maj. Op. at 19-20.           While the Majority is correct that the

duty to defend is broader than the duty to indemnify, see Peccadillos, 27



____________________________________________


10
      Cf. Lawver, 238 N.W.2d at 521 (holding that “the insurer . . . is not
being held to provide coverage for a risk [that] it did not contemplate and
for which it received no premium”).



                                          - 21 -
J-E02005-14



A.3d at 265,11 the duty to defend found in Salem Group was based

expressly (and necessarily) on its recognition that coverage might lie under

the facts of that case. Despite its qualification that it “h[e]ld not that the

insurer may ultimately be liable under the policy, but only that it must honor

its duty to defend,” Salem Group, 607 A.2d at 140—an observation merely

rooted in the question there presented—the court, in finding a duty to

defend, necessarily found that coverage could lie. See also Peccadillos,

27 A.3d at 265 (“The obligation to defend arises whenever the complaint

filed by the injured party may potentially come within the coverage of the

policy.”). It would be nonsensical and contrary to law to grant the insured a

defense if a finding in favor of coverage on the facts as pleaded was not

perceived to be a plausible legal outcome.12       Moreover, the Salem Group
____________________________________________


11
      As noted, supra, in Peccadillos, somewhat reinforcing Eichelberger’s
guiding principle, this Court, sitting en banc, found that the insurer owed a
defense to a bar where some claims clearly fell within the policy’s alcohol
exclusion but at least one claim—that the bar improperly ejected an
intoxicated patron when it knew or should have known that he would drive—
was not included expressly excluded by the policy.
12
      The Majority relies upon Flomerfelt v. Cardiello, 997 A.2d 991
(N.J. 2010), to reinforce the proposition that Salem Group, in finding only a
duty to defend when that was the only question presented, somehow implied
a refusal to grant coverage in an appropriate, factually similar case, but
leaves out that Flomerfelt lent considerable support to my less restrained
reading of Salem Group. Therein, the court observed, regarding New
Jersey law, that “[i]n situations in which multiple events, one of which is
covered, occur sequentially in a chain of causation to produce a loss, we
have adopted the approach known as ‘Appleman’s rule,’ pursuant to which
the loss is covered if a covered cause starts or ends the sequence of events
leading to the loss.” 997 A.2d at 1000 (citing, inter alia, Auto Lenders
(Footnote Continued Next Page)


                                          - 22 -
J-E02005-14



court, in its repeated allusions to alternative but closely similar scenarios

that would lead to coverage and its emphasis upon the reasonable

expectations of the insured, strongly suggested that it was merely exercising

restraint in not reaching the question of coverage prematurely, not that it

believed an obligation to defend existed despite a negligible likelihood of

coverage being found under the circumstances of that case, which resemble

the facts and circumstances sub judice far more closely than any other case

cited herein or by the Majority.

      In short, I find the learned Majority’s dismissal of this case on that

basis alone to be a red herring.           The Majority’s entire response to Salem

Group, including that case’s discussion of and reliance upon Partridge, is to

treat as dispositive the distinction between determining whether an insurer

owes a defense or coverage to an insured. This does not actually provide

any assessment of Salem Group’s soundness in its distinction between

negligent   supervision/entrustment              claims   from   those   in   which   two

independent causes, one covered and one excluded, lead to injury.                      If

Salem Group found, as I would, that the distinction may change the

outcome in the context of the duty to defend, then it also found in principle

that the distinction might, in an appropriate case, also change the outcome
                       _______________________
(Footnote Continued)

Acceptance Corp. v. Gentilini Ford, Inc., 854 A.2d 378 (N.J. 2004)
(quoting 5 Appleman, Insurance Law & Practice § 3083 at 309-11 (1970))).
Under that rule as stated, it seems more than likely that a New Jersey court
would find coverage under the facts sub judice.



                                           - 23 -
J-E02005-14



as to coverage. The Majority freights this distinction with more weight than

it can bear.

      In any event, Salem Group, like Partridge, merely provides

guidance; it is unnecessary to reach the same result in this case (with

respect to coverage rather than defense). Eichelberger and Wilcha suffice

to require us to recognize that a case hinging upon negligent entrustment or

supervision presents a circumstance legally distinct from a case in which the

claims are based upon a cause that is antecedent to or concurrent with, and

independent of, subsequent events that link that cause to the ultimate

injury.

      In this regard, Wilcha, itself, lends support to my view:

      The fatal weakness of the appellants’ contention for coverage lies
      in its failure to acknowledge one of the elements essential to
      recovery for negligent entrustment—the negligent operation of
      the motor vehicle . . . .

      The plain wording of the exclusionary provision reveals the
      deficiency in this rationale. While liability (apart from coverage)
      for negligent entrustment is not conditioned upon the entrustor’s
      ownership or use of the vehicle, negligent use by the one to
      whom it is entrusted is essential to recovery.           It is the
      concurrence        of    these     dual       elements—negligent
      entrustment by the owner or custodian of the
      instrumentality plus its negligent use by the entrustee—
      that is missing in the rationale of those cases upholding
      coverage. Taken literally, [under] this line of reasoning—that
      negligent entrustment of the vehicle, and not its use, is the basis
      of insured’s alleged liability—the injured party could recover
      absent any showing that the incompetent to whom the vehicle is
      entrusted caused the injury by his negligent use of the vehicle.
      As we have already observed, this does not comport with the
      elements that make up this tort concept of negligent
      entrustment.


                                    - 24 -
J-E02005-14



Wilcha, 887 A.2d at 1263 (quoting Erie Ins. Exch. v. Transam. Ins. Co.,

507 A.2d 389, 396 (Pa. Super. 1986), reversed on other grounds, 533 A.2d

1363 (Pa. 1987)) (emphasis added). In short, Wilcha limited its own scope

based upon the very distinction that I would recognize in preserving

Eichelberger and applying it in this case.13

       In this case, no element of the claim asserting that Ross negligently

provided alcohol to Wolfe’s decedent inherently required the involvement of

a motor vehicle to result in liability.        Rather, it required only harm arising

from the provision of alcohol. Decedent might have fallen from a window or

down a flight of stairs. He might have walked in front of speeding traffic in

front of the house or fallen asleep in a full bath tub.         And, perhaps most

relevantly, Decedent might have injured himself in an accident while

operating his own vehicle after leaving Ross’s house. All things being equal,

any of those scenarios may have resulted in coverage, provided that the

instrument or vehicle in question did not belong to Ross. It beggars belief

that a materially identical scenario would not require coverage—and as a

practical matter in cases in which the defendant is insolvent or otherwise

judgment-proof, present the risk of little or no recovery by the injured
____________________________________________


13
        At a minimum, Wilcha expressly excludes from its ambit (and without
criticism) cases that do not feature the substantive intertwining of the
vehicle and the underlying negligence claim that is characteristic of
supervision and entrustment claims. This, in turn, highlights that the
Majority’s application of Wilcha would expand its scope at the expense of
Eichelberger.



                                          - 25 -
J-E02005-14



plaintiff—simply by virtue of which instrumentality connected Decedent’s

inebriation to the injury. See Salem Group, 607 A.2d at 139-40 (finding

similar potential anomalies of coverage at odds with the insured’s reasonable

expectations).

       To be clear, the automobile exclusion at issue in this case reasonably

can be read to preclude coverage in this case.        However, a clause is

ambiguous when another reasonable reading leads to a contrary result.

Adamitis v. Erie Ins. Exch., 54 A.3d 371, 380 (Pa. Super. 2012) (quoting

Kropa v. Gateway Ford, 974 A.2d 502, 508 (Pa. Super. 2009)) (“The

provisions of an insurance contract are ambiguous if its terms are subject to

more than one reasonable interpretation when applied to a particular set of

facts.”).14   As in Eichelberger, I would find that the exclusion at issue

reasonably may be read to exclude coverage only in cases where the use of

the automobile was intrinsic to the asserted tort, rather than serving as an

independent cause of the injury. In so doing, my views are in harmony with

the restrained application of Partridge ventured in Eichelberger—that the

exclusion does not apply because it is ambiguous.




____________________________________________


14
       Cf. Madison Constr. Co. v. Harleysville Mut. Ins., 735 A.2d 100,
110 (Pa. 1999) (Cappy, J., dissenting) (finding ambiguity in the phrase
“arising out of” as used in a pollution exclusion provision with regard to
“whether the phrase requires merely a causal relationship (i.e., a ‘but for’
relationship), or a proximate cause relationship”).



                                          - 26 -
J-E02005-14



      Eichelberger, Partridge, and Salem Group, in their assessments of

what constitutes an independent tort that requires coverage notwithstanding

the operation or use of an automobile, more closely align with the relevant

facts of the instant case than do Wilcha, Filachek, or any of the other

cases relied upon by the Majority.      Consequently, I would find that the

vehicle exclusion policy as applied to this case is ambiguous, and must be

construed in favor of the insured. I respectfully dissent.




                                    - 27 -
