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Epps v. Farmers Insurance Exchange

Court of Appeals of Oregon

December 12, 2018

Brodi EPPS, by and through his guardian ad litem, Molly S. Epps, Plaintiff-Appellant,
v.
FARMERS INSURANCE EXCHANGE, an inter-insurance exchange, et al., Defendants, and TRUCK INSURANCE EXCHANGE, an inter-insurance exchange, dba Farmers Insurance Company of Oregon; John Douglas Pollard; and Alta Lorena Hise-Pollard, Defendants-Respondents.

          Argued and submitted October 22, 2018

          Marion County Circuit Court 17CV16628; Donald D. Abar, Judge.

          Charles G. Duncan argued the cause and fled the briefs for appellant. Respondents John Douglas Pollard and Alta Lorena Hise-Pollard joined the opening brief.

          Thomas M. Christ argued the cause for respondent Truck Insurance Exchange. Also on the brief was Sussman Shank LLP.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary:

         Plaintiff appeals a limited judgment that was entered following the trial court's grant of summary judgment in favor of defendant insurer. Plaintiff, who was just under two years old, was injured when he was being supervised by Alta and John Pollard at their home. Alta allowed John to place plaintiff between his knees on an all-terrain vehicle (ATV) and drive around without [295 Or.App. 386] plaintiff wearing a helmet or protective gear. John Pollard drove the ATV onto a public road and ran the ATV into a fence, which caused the ATV to roll and eject plaintiff, causing plaintiff serious bodily injuries. Plaintiff, by and through his guardian ad litem, began this declaratory judgment action to determine whether a homeowners' insurance policy that defendant had issued covers the liability of the insureds, the Pollards, in an underlying action against them. The trial court granted defendant's motion for summary judgment on plaintiff's claims, ruling that the policy does not cover the Pollards' potential liability because of the motor vehicle exclusion in the policy. Plaintiff assigns error to the trial court's grant of summary judgment in favor of defendant. Held: The Court of Appeals concluded that the policy unambiguously excludes coverage for bodily injuries that result from the use of a motor vehicle and, once the ATV left the Pollards' property and was traveling on the public road, the ATV was a "motor vehicle" within the policy's definition. Because John's and plaintiff's use of the ATV off the premises of the insured triggered the Pollards' alleged liability for plaintiff's bodily injuries, plaintiff's claim squarely falls within the exclusion for coverage. Accordingly, the trial court did not err in granting defendant's motion for summary judgment.

         Affirmed.

         [295 Or.App. 387] TOOKEY, J.

         Plaintiff appeals a limited judgment that was entered following the trial court's grant of summary judgment in favor of defendant insurer.[1] Plaintiff, by and through his guardian ad litem, began this declaratory judgment action to determine whether a homeowners' insurance policy that defendant had issued covers the liability of the insureds, the Pollards, in an underlying action against them. The trial court granted defendant's motion for summary judgment, ruling that the policy does not cover the Pollards' potential liability because of the motor vehicle exclusion in the policy. Plaintiff assigns error to the trial court's grant of summary judgment in favor of defendant, contending that the motor vehicle exclusion does not apply to plaintiff's claim against Alta Pollard.[2] For the reasons that follow, we conclude that the trial court did not err when it granted defendant's motion for summary judgment and, accordingly, we affirm.

         "Because this case arises on defendant's motion for summary judgment, we state the facts in the light most favorable to plaintiffs." Dewsnup v. Farmers Ins. Co., 349 Or. 33, 35, 239 P.3d 493 (2010). Defendant sold a homeowners' insurance policy to John and Alta Pollard, which, subject to various exclusions, covered their personal liability for bodily injury to others. While the policy was in force, plaintiff's mother took plaintiff, who was just under two years old, to the Pollards' home and left plaintiff in Alta's care while plaintiff's mother ran errands. Alta knew that John was intoxicated from drinking alcohol. Nevertheless, Alta allowed John to place plaintiff between his knees on an all-terrain vehicle (ATV) and drive around the premises without plaintiff wearing a helmet or protective gear. At some point, John drove the ATV onto a public road and ran the ATV into a fence, which caused the ATV to roll and eject plaintiff, causing plaintiff serious bodily injury.

         [295 Or.App. 388] Plaintiff filed the underlying negligence action against the Pollards, alleging that, Alta's "failure to reasonably supervise" plaintiff on the premises of the insured, and John's actions, both on and off of the premises, caused plaintiff's injuries. The Pollards tendered an insurance claim to defendant, which defendant denied on the basis of the motor vehicle exclusion to coverage in the policy. Plaintiff then filed this declaratory judgment action against defendant to determine whether the Pollards' homeowners' insurance policy covers the Pollards' liability in plaintiff's action against them. In response, defendant moved for summary judgment, contending that the Pollards' insurance policy excludes claims for bodily injury that do not occur on the insured premises and that result from the use of a motor vehicle. The trial court agreed with defendant and granted the motion for summary judgment.

         As noted above, on appeal, plaintiff does not dispute the trial court's determination that his claim against John Pollard is excluded from coverage under the policy because the plaintiff's injuries resulted from the use of a motor vehicle off of the insured premises. Plaintiff's sole argument on appeal is that the trial court erred when it determined that the policy excluded coverage for Alta's negligence; plaintiff contends that Alta's negligence is not subject to the motor vehicle exclusion in the policy because Alta's negligent supervision of plaintiff occurred on the insured premises and resulted in a foreseeable harm to plaintiff.

         On the other side, defendant contends that the motor vehicle exclusion in the Pollards' policy applies to plaintiff's negligent supervision claim against Alta because the "exclusion applies to any claim for injury that 'results from' the use of a motor vehicle," and "[w]hat determines whether a claim is covered is the nature of the injury, whether it is vehicle related, not whether the alleged negligen ...


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