Filed 4/30/14 Foreman v. Farmers Ins. Exchange CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


LAUREL FOREMAN et al.,
          Plaintiffs and Appellants,
                                                                     A137333
v.
FARMERS INSURANCE EXCHANGE                                           (Contra Costa County
et al.,                                                              Super. Ct. No. C11-01258)
          Defendants and Respondents.


          Charles Pierce (Pierce) was sitting in the passenger seat in the vehicle his
15-year-old granddaughter Mikayla Ririe (Mikayla) was driving. Pierce dropped his
soda, distracting Mikayla, who struck and killed Ralph Cherry, Jr. (Ralph).1 An arbitrator
awarded Ralph’s surviving parents, Laurel Foreman and Ralph Cherry, Sr. (appellants), a
judgment for damages against Pierce and Mikayla. Following partial satisfaction of the
judgment, appellants filed this action against Fire Insurance Exchange (FIE), which had
issued a homeowner’s insurance policy to Pierce’s wife. The trial court granted FIE’s
motion for summary judgment, based on an exclusion excluding coverage for injury
resulting from automobile related accidents. Appellants appeal, arguing that the
exclusionary clause does not apply to the circumstances here. We disagree, and we
affirm.



          1
         For consistency with the pleadings and briefing below, we identify some parties
by their last name and some by their first. No disrespect is intended.

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                                         FACTS
                                      The Accident
       On August 19, 2008, Mikayla, Pierce’s 15-year-old granddaughter who had only a
learner’s permit, was driving her father’s 1994 GMC Jimmy. Mikayla needed a
responsible licensed driver to be with her, and Pierce accompanied her, sitting in the front
passenger seat of the vehicle. Pierce, who suffered from Parkinson’s disease, dropped a
can of soda on the floor of the vehicle, startling Mikayla. As Pierce reached to the floor
to pick up the can, Mikayla also looked down, causing the vehicle to drift onto the
sidewalk and kill Ralph, a 23-year-old who was riding his bicycle.
                                 The Underlying Action
       Appellants sued Pierce, Mikayla, and her mother for negligence, including
negligent entrustment of the vehicle and failure to supervise its use. The parties agreed to
submit the action to arbitration, which was held before the Honorable Michael Ballachey,
retired judge of the superior court. Judge Ballachey entered judgment in favor of
appellants in the total amount of $756,896.33. The verdict was apportioned equally
between the two appellants, $378,448.16 to each. Liability was apportioned 75 percent to
Pierce and 25 percent to Mikayla.
       Judge Ballachey’s award included a number of findings, including these:
       “F. Mr. Pierce was in the car with Ms. Ririe as the responsible licensed driver.
His duty was to the public, including Mr. Cherry, Jr., to direct and control Ms. Ririe’s
driving to avoid precisely the kind of accident occurring here. He was not in the vehicle
as a mere passenger.
       “G. Mr. Pierce’s duty—to the public as well as Ms. Ririe—was to supervise and
control her driving to assure safe driving behavior. He failed to perform that duty.
       “H. Taking an open soda can in the car was inappropriate and inconsistent with
Mr. Pierce’s responsibilities. Knowing of his Parkinson’s condition, and given that he
was no longer driving, Mr. Pierce was not a strong candidate for the duties he undertook
in the first place—duties which carried a near fiduciary duty to the public. Adding the
open can of soda merely exacerbated an already unstable condition.


                                             2
         “I. Dropping the soda can, foreseeable in the circumstances, was a negligent act
that contributed directly to the accident. Had he not brought the can; had he not dropped
the can; it seems likely that the accident might well never have happened.
         “J. Given the high level of duty and responsibility borne by Mr. Pierce, it is the
finding of the Arbitrator that his responsibility is fixed at 75%.”
         Nationwide Insurance Company, the automobile insurer for Mikayla’s parents,
paid the $25,000 policy limits in partial satisfaction of the judgment against Mikayla.
Geico Insurance Company, the automobile insurer for Pierce, paid the $100,000 policy
limits in partial satisfaction of the judgment entered against him.
                                             The Lawsuit
         Pursuant to Insurance Code section 11580, subdivision (b)(2), and as judgment
creditors of Pierce, appellants filed a complaint against three insurance companies,
seeking to recover the judgment against Pierce. FIE, which had issued a homeowner’s
policy to Pierce’s wife, effective December 29, 2007 to December 29, 2008, answered,
and the other two insurers were dismissed.
         As pertinent to the issue here, FIE’s policy excluded coverage for bodily injury
resulting from the ownership, maintenance, use, loading or unloading of a motor vehicle
(the “automobile exclusion”). The specific language was as follows:
         “SECTION II—EXCLUSIONS
         “Applying To Coverage E and F—Personal Liability and Medical Payments
to Others
         “We do not cover bodily injury, property damage or personal injury which:
[¶] . . . [¶]
         “7. Results from the ownership, maintenance, use, loading or unloading of:
[¶] . . . [¶]
         “b. motor vehicles; [¶] . . . [¶]
         “Exclusions 7a, b, c, and d do not apply to bodily injury to a residence employee
in the course of employment by an insured.



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       “8. Results from the entrustment of any aircraft, motor vehicle, jet skis or jet
sleds to any person. Entrustment means the permission you give to any person other
than you to use any personal aircraft, motor vehicles, jet skis, or jet sleds owned or
controlled by you.”
       FIE moved for summary judgment, contending that the accident was excluded
from coverage under its policy, based on the automobile exclusion quoted above.
Appellants filed their own motion for summary judgment/summary adjudication, and also
opposed FIE’s motion.
       The trial court granted FIE’s motion, and entered judgment for it, from which
appellants filed a timely appeal.
                                       DISCUSSION
       Summary Judgment and the Standard of Review
       The standard of review following entry of summary judgment is well established.
In Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 253-254, we summarized it
as follows:
       “Code of Civil Procedure section 437c, subdivision (c) provides that summary
judgment is properly granted when there is no triable issue of material fact and the
moving party is entitled to judgment as a matter of law. [Citation.] As applicable here,
moving defendants can meet their burden by demonstrating that ‘a cause of action has no
merit,’ which they can do by showing that ‘[o]ne or more elements of the cause of action
cannot be separately established . . . .’ [Citations.] Once defendants meet this burden,
the burden shifts to plaintiff to show the existence of a triable issue of material fact.
[Citation.]
       “On appeal ‘[w]e review a grant of summary judgment de novo; we must decide
independently whether the facts not subject to triable dispute warrant judgment for the
moving party as a matter of law. [Citations.]’ [Citation.] Put another way, we exercise
our independent judgment, and decide whether undisputed facts have been established
that negate plaintiff’s claims. [Citation.] As we put it in Fisherman’s Wharf Bay Cruise
Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320: ‘[W]e exercise an


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independent review to determine if the defendant moving for summary judgment met its
burden of establishing a complete defense or of negating each of the plaintiff's theories
and establishing that the action was without merit.’ ”
       The case presents a single question: whether the homeowners policy issued by
FIE excluded the damages resulting from the accident. FIE contends that coverage is
excluded, since the injuries necessarily resulted from the use of the automobile.
Appellants claim coverage is not excluded, because Pierce did not use the vehicle and the
accident was the result of both an insured risk and an excluded risk, that the negligent use
of the automobile and the spilling of the soda were independent, concurrent proximate
causes of Ralph’s death. Under such circumstances, appellants argue, the exclusion does
not apply, an argument based primarily on State Farm Mut. Auto. Ins. Co. v. Partridge
(1973) 10 Cal.3d 94 (Partridge).
       The insured in Partridge had filed the trigger mechanism of his .357 Magnum
pistol to lighten the trigger pull. One evening, the insured was driving in the countryside
on a rabbit hunt with two friends beside him and, using his modified pistol, was shooting
out the window of the moving vehicle. Spotting a jackrabbit run across the road, and
wanting to keep it within sight, the insured drove off the paved road and onto rough
terrain. The vehicle hit a bump, and the pistol discharged a bullet, seriously injuring one
of the passengers. The injured passenger sued for damages. (Partridge, supra, 10 Cal.3d
at p. 98.)
       The insured had both an automobile and a homeowners policy with the same
insurer, and the insurer brought a declaratory relief action requesting a determination as
to which one, or both, of its policies afforded coverage. The trial court concluded both
policies applied. The Supreme Court affirmed, but not on any basis helpful to appellants.
The Supreme Court first held that while coverage clauses are interpreted broadly so as to
afford the greatest possible protection to the insured, exclusionary clauses are interpreted
narrowly against the insurer. (Partridge, supra, 10 Cal.3d at pp. 101-102.) But even
apart from this rule of construction, the insured’s use of the car was only one of two joint
causes of the accident, and the other concurrent cause—the insured’s modification of the


                                             5
gun—was a risk covered by the homeowners policy, liability for which existed
independently of the use of the automobile. (Id. at p. 102.) In sum, Partridge held that
coverage is available “whenever an insured risk constitutes simply a concurrent
proximate cause of the injuries.” (Id. at p. 105.)
       Partridge is not applicable here, as numerous cases since Partridge have
concluded, holding Partridge inapplicable to the setting before it—cases we find
persuasive.
       Prince v. United Nat. Ins. Co. (2006) 142 Cal.App.4th 233 (Prince) is illustrative.
There, Smoot, a foster parent, left her two foster children in an overheated SUV for
several hours on a hot day. The children died. Their biological parents filed a wrongful
death action against Smoot and others, including Trinity, the agency which licensed the
foster parents. The actions settled, and the parents then filed a declaratory relief action
against United National, the liability insurer of Trinity. United National’s demurrer was
sustained without leave to amend, based on a policy exclusion similar to that here. The
Court of Appeal affirmed, holding as follows: “Whether the test to be applied is
predominating cause/substantial factor or minimal causal connection makes no difference
here. The relationship between the use of the automobile and the injury was sufficient to
trigger the exclusion. Dakota and Nehemaiha Prince-Smith died when they were left in
an overheated vehicle. Unlike rape or assault, which can happen anywhere, the type of
rapid onset hyperthermia suffered by the children is particularly likely to occur in a motor
vehicle. The combination of a small confined glass and metal space and a warm sunny
day creates an environment in which heat is trapped and hazardous temperatures develop
within a startlingly brief period of time. Thus, the vehicle, far from being merely the
situs of the injury, was itself ‘the instrumentality’ of it. [Citation.] Moreover, the use of
the vehicle was anything but ‘incidental’ to the injuries suffered by its occupants. It was
a predominating cause/substantial factor in their deaths. [¶] . . . [¶] In short, Smoot’s
negligence in leaving the children in the hot vehicle ‘simply cannot be dissociated from
the use of the vehicle.’ [Citation.] It was her abandonment of them in the vehicle that
subjected them to the conditions causing their deaths. Had she left them on a park bench,


                                              6
in a grocery store, or on a neighbor’s porch, they would not have expired from
hyperthermia.” (Id. at pp. 244–245.)
       National Indemnity Co. v. Farmers Home Mutual Ins. Co. (1979) 95 Cal.App.3d
102 is similar. The insured there was babysitting her nephew. After the insured parked
her car, the nephew ran out of the car and halfway across the street, where he was hit by a
passing car. The insured had automobile insurance from National and liability insurance
from Farmers, and National sued Farmers for declaratory relief. The Court of Appeal
found for Farmers, holding that the exclusionary clause applied, as follows: “Here the act
of the insured which gives rise to liability, if such liability is ultimately established, is her
negligent failure to supervise and control the child during the unloading of the vehicle at
a place well removed from the insured’s premises. That is what the trial court found and
that is what the stipulated facts establish. [¶] There is a complete absence of conduct on
the part of the insured which is independent of and unrelated to the ‘use’ of the vehicle.
The conduct of the insured which contributed to the injury simply cannot be dissociated
from the use of the vehicle. Nor did the injury, insofar as the insured is concerned,
involve an instrumentality other than the vehicle itself. [Citation.] This being so, the
exclusion clause in the Farmers homeowners policy must be given effect.” (Id. at
pp.108-109.)
       In Belmonte v. Employers Ins. Co. (2000) 83 Cal.App.4th 430, the plaintiff’s niece
entered his office and without his permission took the keys to his van and drove it around
the parking lot with her friend. While at the wheel, she lost control of the van and hit her
friend, causing serious injury. Plaintiff, who owned and operated a store covered by a
general liability policy that included a standard exclusionary clause, was sued, and
requested his insurers to defend him in the suit. They refused, citing the automobile
exclusion, and plaintiff sued them. The Court of Appeal affirmed the summary judgment
for the insurers, holding that the exclusion applied. Since access to the keys alone did not
suffice to cause the injury and establish liability, it was not a proximate cause separate
from the use of the van. (Id. at p. 434.)



                                                7
         The most recent case to address the issue reached the same result. That case is
Farmers Ins. Exchange v. Superior Court (2013) 220 Cal.App.4th 1199, where a
two-year-old girl was killed when she was accidentally run over by her grandfather in the
driveway of his home. The mother and two sisters of the child filed a wrongful death
action, alleging that the grandfather was negligent in operation of his pickup truck. A
second cause of action alleged that the grandmother was negligent in the supervision of
the child while on her premises. (Id. at p. 1202.)
         The grandparents’ homeowners insurer filed an action against them, seeking a
declaration that it was not obligated to provide coverage under their policy, based upon a
policy exclusion for injuries arising from the ownership, maintenance or use of a motor
vehicle. The insurer moved for summary adjudication, which the trial court denied,
finding that under Partridge the grandmother’s negligent supervision existed
independently of the motor vehicle and therefore the exclusion did not apply. The Court
of Appeal issued a writ of mandate directing the trial court to grant the motion, holding
that the insurer had no liability as a matter of law. (Id. at pp. 1203, 1214.) Reaching that
conclusion, the Court of Appeal made several observations pertinent here, including
these:
         “[T]he excluded instrumentality in [National American Ins. Co. v. Coburn (1989)
209 Cal.App.3d 914], Prince, and this case, the motor vehicle, played an active role in
causing the injury by rolling over the victim (Coburn), heating up on a hot day (Prince),
and running over the victim (this case). The injury ‘involved no instrumentality other
than the vehicle itself,’ and ‘there would have been no accident without the use or
operation of’ the vehicle. (Safeco Ins. Co. v. Gilstrap (1983) 141 Cal.App.3d 524, 530.”
(Farmers Ins. Exchange v. Superior Court, supra, 220 Cal.App.4th at p. 1209.)
         “Moreover, as in Coburn, the supervision here was negligent only because it
exposed the children to the danger of negligent automobile use. Although the negligent
supervision claimed in this case is not as closely “auto-related” as it was in Coburn, it is
still related enough that it does not constitute an ‘independent, concurrent proximate
cause[] of’ Valerie’s fatal injuries. (Partridge, supra, 10 Cal.3d at p. 99; see Medill v.


                                              8
Westport Ins. Corp. (2006) 143 Cal.App.4th 819, 835 [‘[c]ourts following Partridge have
made it clear that its holding only applies to “multiple causes that operated totally
independently of one another” ’] . . . .” (Farmers Ins. Exchange v. Superior Court, supra,
220 Cal.App.4th at p. 1210.)
       “Similarly, as in Prince, it was Sara’s failure to supervise Valerie when she went
out to greet Jose as he drove home in his pickup truck that ‘subjected [Valerie] to the
conditions causing [her] death[].’ (Prince, supra, 142 Cal.App.4th at p. 245.) Had Sara’s
failure to supervise Valerie occurred at any other time, Valerie would not have been
exposed to the risk of Jose’s truck arriving home. As the court stated in Prince, ‘ “in
order for Partridge to apply there must be two negligent acts or omissions of the insured,
one of which, independently of the excluded cause, renders the insured liable for the
resulting injuries.” ’ (Id. at p. 239; [citations].)” (Farmers Ins. Exchange v. Superior
Court, supra, 220 Cal.App.4th at p. 1211.)
       “Finally, the Bautistas argue that Sara’s ‘negligence [arose] from non-auto related
conduct and exists independently of her use of an insured automobile,’ and that the
‘exclusion clause does not offer any guidance because it is ambiguous whether the “use”
of a motor vehicle must relate to an insured or some other.’ The Bautistas appear to be
arguing that the exclusion contains an ambiguity regarding who must be driving the
motor vehicle, and that because of this ambiguity the exclusion applies only when the
negligent supervision and the negligent use of the motor vehicle are by the ‘same
insured.’ [¶] The language of the motor vehicle exclusion, however, is not ambiguous.
The court in Belmonte v. Employers Ins. Co. (2000) 83 Cal.App.4th 430 held that the
language of this exclusion is unambiguous and is not ‘limited to use by the named
insured.’ (Id. at p. 434; see Croskey et al., Cal. Practice Guide: Insurance Litigation (The
Rutter Group [2013]) ¶ 7:330a, p. 7A-128.3 [‘the exclusion bars coverage for claims
arising out of the ‘use’ of an automobile even if the insured was not the party using it
. . . .’].)” (Farmers Ins. Exchange v. Superior Court, supra, 220 Cal.App.4th at p. 1213.)
       The essence of these holdings is that there is no coverage under a homeowners
policy for injuries which could not have occurred but for the operation or use of a motor


                                              9
vehicle. As one court point blank put it: “The liability must arise from nonvehicular
conduct and must exist independently of the use or ownership of the vehicle.”
(Gurrola v. Great Southwest Ins. Co. (1993) 17 Cal.App.4th 65, 69.) To the same effect,
see Safeco Ins. Co. v. Gilstrap, supra, 141 Cal.App.3d at p. 527 [discussing Partridge
and subsequent cases, and holding exclusion precluded coverage of claim of negligent
entrustment where injury involved no instrumentality other than vehicle itself and there
would have been no accident without use or operation of vehicle]; cf. Hartford Fire Ins.
Co. v. Superior Court (1983) 142 Cal.App.3d 406, 413 [applying same principles to
aircraft exclusion].) The above authorities demonstrate that the summary judgment here
was proper, as Pierce’s liability did not exist independently of the vehicle.
       The above authorities also demonstrate that the two other cases cited by appellants
in their opening brief—Essex Ins. Co. v. City of Bakersfield (2007) 154 Cal.App.4th 696
(Essex) and Safeco Ins. Co. of America v. Parks (2009) 170 Cal.App.4th 992 (Parks)—
are not supportive.
       Essex involved a claim against the city based on an alleged dangerous condition of
public property on which a vehicular accident occurred. The trial court held that the
insurer did not have to defend the city under a commercial liability policy it had issued.
The accident did not occur on the premises of the event, and the drivers of the vehicles
involved in the accident were not employees or agents of the city. (Essex, supra,
154 Cal.App.4th at p. 708.)
       The Court of Appeal reversed, concluding that the exclusion did not plainly and
clearly exclude coverage for bodily injures arising from auto accidents where the insured
had no connection to the automobiles involved. Moreover, the court held that the
exclusion should not apply in a situation where the insured could not get separate
coverage for the risk, noting that no automobile policy would cover liability arising from
an automobile accident where the insured had no connection to the automobile involved
in the accident. (Essex, supra, 154 Cal.App.4th at p. 710.)




                                             10
       Here, by contrast, Pierce not only could get automobile insurance to cover the
accident, it is undisputed he had such insurance, the policy limits of which were paid to
appellants. Essex is clearly distinguishable, as is Parks.
       Parks was injured when he was put out of a vehicle during an argument with his
friends, and was struck by a passing motorist while walking on Highway 101. He sued,
and one of the friends, a minor, tendered her defense to the insurer under a homeowners
policy issued to her mother’s boyfriend. As relevant to the issue here, the Court of
Appeal affirmed that the automobile exclusion did not apply, because Parks had walked
over a mile before the accident. Citing and discussing numerous cases, the Court of
Appeal concluded as follows: “Miller’s negligent driving of Parks’s car certainly set in
motion the events that culminated in his injuries. But it was not the ‘predominating
cause’ or a substantial factor in causing those injuries. The subsequent negligence of
Cooney, Rivera and Miller in removing Parks from Cooney’s car and leaving him on the
side of the highway was an independent, concurrent cause of his injuries that is connected
to, but not dependent on Miller’s use of Parks’s car. [Citation.] Her liability for that
conduct would exist regardless of whether she used a car to transport Parks to the place
where they were picked up by Cooney or to the place where Parks was later abandoned.”
(Safeco Ins. Co. of America v. Parks, supra, 170 Cal.App.4th at p. 1012.)
       Likewise distinguishable is Ohio Casualty Ins. Co. v. Hartford Accident &
Indemnity Co. (1983) 148 Cal.App.3d 641, a case first cited in appellants’ reply brief.
Passing over that such reliance is improper (see In re Marriage of Khera & Sameer
(2012) 206 Cal.App.4th 1467, 1477), the case has no applicability here, the court holding
that the exclusion in a homeowners policy for watercraft use did not apply to injuries
suffered by a boat passenger who dove into the water from the anchored boat and was
injured by another passing boat as she surfaced. In the words of the Court of Appeal, the
homeowner’s “negligence was not an act of omission in failing to supervise some aspect
of the operation of the boat, such as loading or unloading, but was an act of commission
in permitting [the passenger] to go swimming when it was unsafe to do so. . . . [T]he
negligent supervision of [the passenger’s] swimming activities did not in itself constitute


                                             11
a use of the boat. . . . [T]he mere fact [the homeowner’s] negligent act is connected to the
use of the boat does not mean it is dependent on the use of the boat.” (Ohio Casualty Ins.
Co. v. Hartford Accident & Indemnity Co., supra, 148 Cal.App.3d at p. 647.)
       Here, Pierce’s act which gives rise to liability is not independent and unrelated to
the use of the vehicle. The exclusionary clause must be given effect.
                                     DISPOSITION
       The judgment is affirmed.

                                                  _________________________
                                                  Richman, J.


We concur:


_________________________
Haerle, Acting P.J.


_________________________
Brick, J.*




*
 Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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