*1 Aetna would the ninety days contend that statute at least before its of the being part compensable circumvents this with a respect effective policy provision; and insurer should be claim for asbestosis or other conditions enu- the ex- synonymous employer under merated in the within 287.- exceptions § ception Rather, within 287.063.2. legislature § 063.2. the the coverage at time providing the insurer purpose the statute under discus- employee’s injury indemnify of the should among multiple sion is to determine who the regardless of when carri- employer, the employers occupational is liable dis- for an er assumed risk. not change ease. It does the date holding which the condition not conflict with compensable; becomes Such employer it has no reference to carrier sta- Reference to insurance 287.030.2. § who at tus. its insurer this case includes loss time of the was Aetna. To substitute the word insurer court employer word 287.063.2 demonstrates of the trial af- judgment § incongruity reading. such a firmed. cases of ... asbestosis “[I]n CRANDALL, JJ., concur. liable STEPHAN shall be the last [insurer] [insurer] employment in whose the employee was
exposed during period ninety days occupational
more to the such hazard of ” disease .... legislature
We do believe that for less
intended that insurer on a risk lia- ninety days
than should be relieved of To so hold well lead to bility. very could BRAXTON, Plaintiff-Respondent, Terry in which an be employer situation could left coverаge contrary without insurance the liabili- strong intent statute that FIRE INSURANCE UNITED STATES COMPANY, Defendant-Appellant. insurance. employer be covered 287.280, Supp.1982. RSMo § No. 45263. well be could employer It could that an Appeals, Missouri Court insurance employer be a last and have two District, Eastern nei period within a of time where carriers Four. Division ninety ther of them would be on the risk cir period. within that such days Under 12, 1983. April cumstances, would havе no employer Transfer to and/or Rehearing Motion for a claim made May 1983. Denied Supreme Court employee disability who suffered Denied Application to Transfer dis occupational to the hazard of exposure June Services, Ringeisen v. Insulation ease. See Inc., where S.W.2d ex asbestosis after employee contracted working for two to the hazard while
posure for either
employers. He had not worked ninety or more. This
employer days held that was liable. employer
court neither
Logic and us to equity require exception 287.063.2 does
hold that in § require that last insurer shоuld period insurer of the for a employer
Moser, Marsalek, Carpenter, Cleary, Louis, Keaney, plaintiff- Jaeckel & St. respondent.
PUDLOWSKI, Presiding Judge. Respondent Terry brought Braxton this equity against appellant action in United Respondent States Fire Insurance Co. sought satisfy judgment against one proceeds Aaron Blunt out of the of a liabili- by appel- insurance issued to Blunt lant. maintained that liability respondent Blunt’s was not by The trial court respondent’s injuries were cover- ed by policy. We affirm. injured was shot
Respondent gas intoxicated station attendant following making change. altercation over the brought Respondent against suit Aaron Blunt, station, gas the owner of the on a negligent supervision. Because the record of that trial part was not made of the record on this appeal, knowledge our of the facts involved is rathеr sparse. The record before us does show attendant; belonged to the that the attend- intoxicated; ant was jury and that against Blunt on the theory found that he permitted the attendant to continue work though he knew or even should have known injure it was likely attendant would Respondent judg- customer. obtained a $100,000. against ment Blunt Appellant, Blunt’s insurance car- rier, policy, denied under its exclusion, following among contаined others: does not apply
This insurance .... property damage arising or use of any firearm. respondent brought equitable ac- against
tion the insurer obtain satisfac- judgment. tion of the Both sub- mitted memoranda of law to the trial court. argued nothing in the respondent Hoffman, Louis, supervising Theodore H. St. Blunt’s em- de- fendant-appellant. ployees policy by and that its terms admits that his comprehensive
afforded
was caused
firearm;
ap-
discharged
excluded. The
bullet
from a
argued
plain language
coverage any bodily injury
pellant
cy
excludes
firearm;
of a
the firearm exclusion disclaimed
out of the use
there-
fore,
owner-
is not covered
liability resulting
respondent’s injury
for all
regardless
policy. Appellant
maintains that Penn
ship or use
*3
on
was based.
Insurance
liability
which such
Travelers
S.W.
respondent
controlling.
the
That case in-
The trial court found for
brought
appeal.
the
which
policy
and
volved an accident insurance
“accident, inju-
coverage any
excluded from
“special multi-per-
in
policy
The
issue is a
or
ry, disability
resulting wholly
or death
and
in-
comprehensive property
il”
...
firearms.” The
partly from
in
policy.
provides,
pertinent
surance
It
was killed
the
stipulated that the insured
part, that:
he
dischargе
shotgun
of his own
when
on
of
Company
pay
The
will
behalf
the
a wire fence.
trying
while
to cross
stumbled
which the insured shall
insured all sums
argued that the cause
plaintiff
The
in Penn
to
as dam-
legally obligated
pay
become
stumbling and
of death was the accidental
property
of
or
ages
bodily injury
gun.
of the
The court
discharge
not the
applies,
which this insurance
damage to
provided
no
policy
held that
and
out
an оccurrence
facts,
whatever
stipulated
since
under
or use of
ownership,
maintenance
discharge,
it was
gun’s
the cause of the
premises
operations
and all
the insured
gun’s dis-
result of the
undisputed that the
of
incidental to the business
necessary or
death.
charge was the insured’s
at or from
the named insured conducted
premises
points
....
out
significantly
respondent
Penn,
in
unlike
construed
policy
in the policy
An “occurrence” is defined
the exclu-
did not restrict
appellant’s policy,
accident, including
injurious
an
ex-
as “an
“ownership or
arising out of
injuries
sion to
conditions,
results, during
to
posure
it used the
Instead
use” of a firearm.
proper-
or
bodily injury
in
policy period,
or
“resulting wholly
phrase
comprehensive
expected
neither
nor
damage
firearms,
stating un-
thus
partly” from
standpoint of the insured.”
would
the exclusion
equivocally that
insured” as Aaron
identifies “the
policy
or
other concurrent
despite the existence of
individual,
Blunt,
only
respect
“but
intervening causes.
which he is
of a business of
to the conduct
por-
“Exclusions”
proprietor.” The
the sole
before us
that the case
We believe
of
states
“this
policy
tion
later case
more similar
factually
property
or
to
apply”
does not
Ins. Co.
Acсident
Cochran v. Standard
certain enumerat-
damage “arising out of”
Detroit,
271 S.W.
Mo.App.
“for,”
of”
or “on behalf
“by,”
ed acts done
accident in
involved an
(1925). That case
exclusion here dis-
named insured. The
.
that: “..
provided
policy
surance
by typewrit-
to the policy
was added
puted
paid
will be
no benefits
It disclaims
ten endorsement.
any
consequence
or in
received under
damage arising
property
“bodily
en
... while
following conditions:
any
use of
fire-
or
hunting, fishing,
navigation,
in aerial
gaged
provi-
exclusionary
the other
arm.” Unlike
any
under
or
exploring expeditions,
or in
sions,
whether the “own-
specify
it does not
kind,
circumstances
”
for,
by,
must be
or on behalf
ership or use”
insured
or riot
....
explosives, war
the named insured.
when
riding on a train
killed while
was
warning
and without
suddenly
view,
insane man
appellant’s
In
found that
The court
pistol.
to re-
fired a
for Blunt’s
provide coverage
poli
death was covered
up
summed
argument
Its
can be
spondent.
intelligent
reasonably
that a
It held
Respondent
cy.
uncomplicated syllogism:
as an
person perusing the terms of
pistol discharged
the contract
as the car traveled over a
could
understand that it excluded
rough section of road. The insured had
engaged
while the insured was
in han
negligently
trigger
modified the
mechanism
dling
using firearms,
participating
pistol
give
trigger
it “hair
action.”
dangerous
activity in which he was The court
policy applied
likely
injured by
them.
Id. 271 S.W.
despite the automobile use exclusion since
at 1013. The court noted that exclusions
negligent
modification of the
from coverage must
accomplished by
“be
the use of the automobile were concurrent
language unequivocal
meaning.”
in its
Id.
proximatе
of the passenger’s injury,
causes
Because the
at issue
only one of which was excluded from the
was reasonably susceptible of two interpre
tations, the court
required
construction most favorable to the insured
A similar result was reached in Le Jeune
and this is especially true when the clause
(La.1978).
v. Allstate Ins.
which excluded
engaged
not
in the excluded conduct.” Id.
passen
out of the use of an
A
automobile.
ger in
when
injured
the insured’s car was
a
cases
fireworks company
ato
excluded coverage
Grand Union Co.
Accident
v. General
Fire
“liability arising
[fjireworks
which
& Life Assurance
254 A.D.
Corp.,
through
are intended
travel
the air or to
279 N.Y.
N.Y.S.2d
affirmed
the position
move from
in
they
are
(1938),
liability policy
N.E.2d
involved a
During a
display,
fired.”
fireworks
an aeri-
grocery
issued to a
owner. The policy
store
exploded while still within its
al bomb
fir-
stated that it
accidents
Fragments
tube.
of the tube
ing
struck a
premises
pur-
from use of the
for business
away from the
some 360 feet
fir-
spectator
addition,
In
poses.
the insured
jury
site. A
had
ing
“pres-
negligent
failing
place
a barrier
been
premises
ence” on the
of “any material
shrapnel.
to deflect
firing
around the
tube
person
intended for use as
A
explosive.”
The court found
employed by
entered
despite the fact
policy,
under the
store with a rifle and ammunition. Several
bomb
aerial
explosion
employee’s
of insured’s
him to set
helped
up
causing
injury.
a factor in
target against
door
a basement
the trial
authority supporting
Additional
opened
public
They
onto a
street.
took
Engelding
court’s decision
be found
may
firing
turns
at the
target. One
bul-
Underwriters,
Auto
Casualty
er v. State
&
penetrated
passer-
lets
killed a
door and
(Minn.1975);
Minn.
236 N.W.2d
The insurer
to defend on the
by.
refused
Co. v.
Aggregate
Biwabik Concrete
U.S.
grounds that
incident was
within
*5
Fidelity &
206 Minn.
Guaranty
coverage
The court found
(Minn.1939);
City
Brown v.
of
N.W. 394
coverage,
unequivo-
since the
policy did
(N.H.
Lacоnia,
376,
1276
118
386 A.2d
N.H.
cally
coverage
exclude
for the
of
Co.,
Ins.
67
1978);
Twp.
Dora
v. Indiana
employees acting
scope of
outside the
their
417 A.2d
the court
own
fore us.
injuries
policy
homeowner’s
which excluded
separate,
and non-excluded
a
concurrent
except
out of
ac
“arising
pursuits
business
policy
of his
issued
liability.
cause
ordinarily
tivities therein which are
incident
did, therefore,
coverage
provide
The insured
to non-business aсtivities.”
respondent’s injuries.
pistol
purchased
protection
for the
comply
to
point
second
fails
Appellant’s
A
his office on
dropped by
business.
friend
is
84.04(d) and
dismissed.
Sup.Ct.Rule
visit. As
showed his
a social
pistol,
discharged.
new
friend the
it
Judgment affirmed.
recognized
resulting
court
that the
to the insured’s
“causally
were
related”
KELLY, J., concurs.
it found
pursuits.
business
Nevertheless
also arose from
SMITH, J.,
dissenting
separate
dissents in
(and non-exсluded) nonbusiness
concurrent
opinion.
causes.
SMITH, Judge, dissenting.
firearms,
Fireworks,
were in-
rather than
clamor has
public
much
years
In recent
at
Bulyga
v. Underwriters
volved
written in
be
policies
N.E.2d 68 arisen that
Lloyd’s, Mass.App.
simple and concise language. The industry
bodily injury caused by firearms. We are
has made attempts
now,
to satisfy that clamor.
guise
interpretation,
under the
add
If
attempts
successful,
such
are
to be
ing covеrage
which the
cies must
interpreted
by the courts in
major
deleted. The case relied
accordance with the
meaning
usual
ity,
such
Cochran v. Standard Accident Ins. Co.
language, without
straining
Detroit,
undue
of that
Mo.App.
S.W. 1011
language.
I do not believe
majority
(1925),
holding
based its
on the rule of
opinion
interpreted
has so
and I
policy
construction “noscitur a sociis.”1 There the
therefore respectfully dissent.
I believe the
reference to
appeared
with a
language
Supreme
which,
Court in Harrison
group of “conditions” to
the court
v. MFA Mutual
concluded,
Ins.
“Where in an insurance con- without knowledge exposed. tract or consent unequivocal, it is to be given its plain meaning There are here no similar “conditions” and notwithstanding the fact appears exception in a involved deals provision restrictive subject courts are not with one matter. I find the ‘[T]he authorized pervert inapposite except or exer- case relied on in its recog cise powers inventive purpose nition that where the exception clearly ap creating an ambiguity when plies none ex- it is to be enforced. Penn v. Travelers’ ists.’ ... We refuse to create an ambi- S.W. 1033 guity the policy language where in my opinion controlling and indistinguish none exists so as to imagi- construe the able. nary ambiguity in such way to reach a In addition to its interpretation argu- result which might consider desira- ment, the adds a majority string second ble but which is not otherwise permissible bow, namely shooting that the and the under the the law.” negligent supervision were concurrent or We are here dealing with a liability insur- independent torts and so is availa- ance policy protecting the against insured negligent supervision ble because of even if *6 the consequences of negligence This, shooting course, is excluded. cause bodily or injury property damage. ignores the language of the endorsement
That coverage is by special type- limited for bodily injury excludes written provides: endorsement which arising out of the use of firearms. The
“In premium consideration of here injury was caused firearm. charged, the following exclusions are add- Whether the use of that firearm was the ed to Coverages Liability C MLB 200: product of the or not
(P) bodily change does not the fact that property injury and dam- age arising out of the sustained arоse from the non-covered use of use of any firearms negligent supervi- ...” a firearm. The insured’s sion injury only resulted because of That enough is clear to me. It use of a firearm. The insured’s states if concisely way independent was in no concurrent or arises from the use of a the use of the firearm. exclusion is in no way Further, conditioned being string “use” effectively this second that of the insured or “on his behalf” or and pre- еmasculates the endorsed exclusion “for” him. The endorsement makes clear all in the sumably the other exclusions for a premium reduced cy. liability policy. This was a Plaintiff elected not to have liability coverage recovery judgment granting based his on a meaning may Dictionary (5 Rev.Ed.1978). 1. “The of a word be known accompanying words.” Black’s Law damages injuries proximately caused by
insured’s negligence. Negligence here con- DELF, Phyllis Plaintiff-Respondent, R. sists of a duty injured party, a breach v. duty resulting and an act from that CARTWRIGHT, a/k/a Clifton Cliff of duty causing injury. breach Separating Cartwright, Defendant. out the duty and breach from the act causing the injury treating them as of Clifta C. CART- In the Matter independent and separate recovery bases of Petitioner-Appellant, WRIGHT, sequitur. non is a dealing We are not here with concurrent tortious actions by the in- sured but with the elements of one tort. Bureau of the The Drivers License I do find the upon by cases relied Revenue, Department of Missouri
majority applicable. This case does not Respondent-Respondent. concern a definition of “use” of a firearm and whether the injury sprung from such No. 45897. meaning use. The of “use” was the issue in upon by majori- of the cases relied Appeals, Missouri Court ty.2 That the injury District, occurred from the Eastern “use” of a firearm is Nor are we conceded. Division Three.
dealing with definitions of business and 12, 1983. April activities, non-business as was true in an- other of the cases Transfer to Rehearing relied on.3 The remain- and/or Motion for ing cases cited involve questions May different Denied Supreme Court than that us4 with possible before one ex- Denied to Transfer Application ception.5 30, 1983. June
I would reverse.
Ill.App.3d
Farm
23 Ill.Dec.
2. State
Mutual Automobile Ins. Co. v.
Indiana Ins.
Partridge,
Cal.Rptr.
(meaning
(1979)
10 Cal.3d
of word
384 N.E.2d
(1973);
Stein,
“controlled”);
P.2d 123
LeJeune v. Allstate Insurance
La.
Snell v.
(La.1978); Curry
(La. 1972) (was negligent