*1
vicariously operator for the acts of the of the truck. boom negligence proximate Corrosion Control’s would have be Control, therefore, operator’s damages. cause of the cannot be held to be liable unless it were shown that its omissions, negligent liability arose "because of” its own acts or operator. not "because of” acts or omissions joined concurring, Levin, Cavanagh, Justice Justice injured employee stated that because the did not seek to against recover Corrosion Control because of acts or omissions Hotshot, Inc., employer, B L of his & or for acts or omissions person person using another while that the insured vehi- cle, sought but rather to recover Corrosion Control for involving the use of the its acts or omissions not Corrosion Control was not an insured under subject liability. Aetna was not Reversed and remanded. Mich Archer, Bearup (by R.
Menmuir, Zimmerman, Kuhn & Kuhn) plaintiff. for the Edward Stephen M. Overton for defendant. presented J. The issue whether Archer, pursuant insurer, to the motor no-fault vehicle policy, no-fault should be omnibus clause its part for all or of a settlement a land- held liable pays general insurer where owner’s injury arising of a motor vehicle out of the use premises. hold the occurs on the landowner’s We indemnify duty no-fault insurer has no general liability insurer because the landowner’s arise from the use of a motor conduct did not beyond the of the no-fault vehicle and was i *3 Company Ernest E. Shell contracted with Oil doing Kuhns, pany, Com- business as Corrosion Control pipes. Oil, turn, con- to sandblast Shell Hotshot, B L to deliver tracted with & Inc (blh), pipes sandblasting, premises, and, after to Corrosion Control’s pick up pipes the sandblasted return them to Shell. April 10, 1980, Naasko, Russell fore- On blh employee
man, and another blh drove to Corro- premises Control’s in a blh boom truck sion During loading pipes. retrieve the sandblasted guideline operation, to the Naasko held a attached pipe being injured lifted the boom.1 Naasko was came into contact with an over- when the boom power Com- line Consumer’s Power head electrical premises. pany maintained on Corrosion Control’s a mounted boom crane. While the The truck had a flat bed with trailer, outriggers pipes being separate immobi loaded onto a were lized truck. Celina Ins Co v Aetna Opinion by Archer, Naasko severely burned and collected work- compensation ers’ benefits. 1981,
In June Naasko sued Corrosion Control and Consumer’s Power in Kalkaska Company Cir- cuit Court. Naasko asserted a landowner’s claim complaint, Corrosion Control. his alleged Naasko that Kuhns ordered the blh em- who had ployee, pipes delivered the to Corrosion Control’s premises, place power them near line where they would be sandblasted. Naasko that, storing claimed pipes the sandblasted near line, power an overhead created alleged hazardous work environment. He further that, that Kuhns knew or should have known blh when came employees pick up back finished pipes, boom would come into contact power with the overhead line. Naasko’s wife as- serted a loss of consortium claim.
Celina Mutual Insurance Company, Corrosion insurer, general Control’s agreed to de- fend Corrosion Control and filed an answer on its behalf. The affirmative defense raised was negligence. Naasko’s own mediation,
In June six months after Celina tendered to Aetna Life & blh’s Casualty Company, insurer, no-fault motor vehicle its defense Corro- sion Control. Celina through claimed the acts co-workers, omissions Naasko and his Corro- sion Control became an additional insured under the omnibus clause2 of Aetna’s no-fault policy3 Aetna, however, issued to blh. refused to defend Corrosion Control. following day, which was trial, less than one month before Naasko settled $32,000, with Corrosion Control which Celina paid._ *4 2 clause, liability coverage Under an omnibus is extended to third
persons legally responsible for n the use of an insured vehicle. See 8 accompanying and text. 3 accompanying See n 7 and text. Mich 288 292 Archer, subrogated any Con- Celina, claim Corrosion might against Aetna, filed the then trol present requesting have In addition to in November 1983.
lawsuit wrongfully Aetna a declaration that Control in the under- to defend Corrosion refused sought $32,000 lying suit, to recover Celina paid to the cost of Corro- Naasko and settlement defense. sion Control’s summary disposition.4 parties
Both moved appeal, however, concerns Aetna’s This disposition summary in which motion for amended that, if the blh vehicle was Aetna claimed even policy,5 had no its Corrosion Control insured under contractual rights policy because Naas complaint against did not Corrosion Control ko’s ownership, arising use, claim out of the state a motor maintenance of a vehicle.6 argument rejected The trial court Aetna’s holding though motion, that, even denied complaint alleged a landowner’s Naasko’s claim, injuries the use of a Naasko’s arose from light insured motor vehicle.7 omnibus 4 (no 1963,117.2(3) summary judgment Celina moved for under GCR fact), genuine claiming issue of material that Corrosion Control and indemnification as a matter of law. The triad entitled to defense court has not motion, however, yet on this since Celina has ruled question. present the boom truck in failed to evidence that owned blh has not admitted that its insured the boom truck blh Aetna produced any evidence that blh owned the because Celina has or that it was insured under Aetna’s Co, argued under Johnston v Hartford Ins 6 Aetna also (1984), 349; injuries App did not arise Mich from the use of a motor vehicle. 346 NW2d Naasko’s bodily injury policy provides: The clause of Aetna’s company pay sums will on behalf of the Insured all legally obligated pay Insured become which the damages shall damage bodily injury property to which because of arising applies, out insurance caused an occurrence and this of the loading including ownership, maintenance or temporary unloading or of a ... of an owned automobile automobile, right company have the
substitute and the shall *5 293 Celina Ins Co v Aetna Opinion Archer, J. policy, of the court clause8 Aetna’s trial concluded that Corrosion was an additional insured liability policy. Consequently, under Aetna’s court held that Naasko’s injury the
complaint alleged an scope policy. of within the the appealed, Appeals Aetna the Court of unani- mously opinion, unpublished per in an affirmed curiam 95658). (Docket decided June 1988 No. The Court held that Corrosion Control was an clause, additional and under omnibus insured Aetna’s "using” that it the truck as a was boom motor injured. Court, when The vehicle Naasko con- pled sequently, concluded Naasko had cause scope policy. action of within the of Aetna’s subsequently applied appeal, Aetna leave to granted which we to determine whether Aetna is liable to Celina for the costs of Corrosion Control’s paid $32,000 defense and the Naasko. Celina settlement 432 892 Mich (1989)._ duty any seeking and ages suit defend the insured dam- bodily damage, injury property on account of such or even any allegations groundless, if fraudulent, the suit are false or may investigation make such and settlement of any expedient [Emphasis claim or suit it deems .... added.] following policy: are under the insureds (a) Insured; the named (c) any person using other while an owned automobile or a
temporary permission substitute automobile with of the (if insured, provided operation named his actual or he is not operating) his use other actual thereof is within the permission, respect injury bodily property such but with or damage thereof, arising loading unloading out of the or such persons only other an shall be Insured if is: he (1) automobile, a lessee or of the or borrower (2) employee of the named of such Insured or lessee or borrower; (d) any person organization respect other but his or its of acts or of an because omissions Insured (b) (c) (a), under above. Archer,
II
prima
facie
establish
Three elements
injury
coverage
policy. First,
Aetna’s
Sec-
a motor vehicle.9
must arise from
use of
Finally,
ond, the
must be an
from
tortfeasor
insured.10
injury
motor vehicle
which
the
must
temporary
be
owned or
substitute”
"an
meaning
vehicle within
*6
alleged in
motion for sum-
its amended
Aetna
2.116(C)
disposition
pursuant
mary
(8),
that,
to MCR
a claim for which
Celina had failed
state
grant
Aetna, as matter
law could
relief because
a
duty
indemnify
law,
or defend Corro-
of
had no
A
for sum-
sion Control in
suit. motion
Naasko’s
2.116(C)(8)
disposition brought
mary
under MCR
legal
plaintiff’s
sufficiency
com-
tests
plaint.
Lilly
311, 323;
Co,
Eli
&
418 Mich
Abel v
(1984).
(1984),
469
This Court held in Ins America Citizens Co of (1981), Tuttle, 536; 174 309 NW2d that 411 Mich seq.; act, the no-fault MCL 500.3101 et MSA seq., abrogate a 24.13101 defendant’s tort did not et nonmotorist though negli-
liability his even gence motor accident. caused a Defendant vehicle roaming highway Tuttle’s cow was on when Zaiger Beverage Company the cow. truck struck Beverage’s Zaiger Company, Citizens Insurance See n 7 See n 8 and and accompanying accompanying text. text. Co Celina Ins v Aetna Opinion by Archer, paid Zaiger’s insurer, no-fault claim for the dam- age Subsequently, Insurance, Citizens its truck. subrogated Zaiger’s claim, sued Tuttle. began analysis by examining in
We our language the no-fault act of the section of abrogating liability: tort (2) law, provision Notwithstanding any other arising ownership,
tort from the mainte- nance, or use this state of a motor vehicle within respect security required by to which the 3101(3) (4) effect section abolished 24.13135(2).] 500.3135(2); .... MSA [MCL (2) Subsection addresses tort that arises wrongful from either a defendant’s act or failure Only liability, however, to act. arising Mich 544. "ownership, from a defendant’s mainte- abrogated. nance, or use of a motor vehicle” is Thus, from the plain unambiguous statutory language, we concluded order for abrogated, required to be the no-fault act having plaintiff’s injuries more than a arisen *7 merely from the use of a motor vehicle. The defen- wrongful upon omission, dant’s act or his which predicated, was must also have arisen ownership, maintenance, from the or use of a plain motor vehicle. In unam- addition to the biguous language, support statutory we also found position act,11 for this in the no-fault the model contrary unreasonableness of a light construction Michigan of other sections of the no-fault duplicative act,12and the act’s to eliminate recoveries and reduce insurance costs.13 negligent,
Because defendant Tuttle
if at
was
[12] Id. at 548-551. Id. at 551-554. Mich Opinion by Archer, J. cow, his we con-
all, keeping of improper the the not from wrongful that his act did arise cluded maintenance, of a vehicle. ownership, or use motor act, abrogate his tort not consequently, The did liability: case, wrongful
In the act is instant improper keeping the asserted Tuttle’s of his cow. Such a ownership, wrongful to the act does relate a motor vehicle. of Tuttle’s or use maintenance tort alleged any, only from liability, if his cow, wrongful keeping of the not from the owner- ship, or use a motor vehicle. maintenance of subject
Tuttle would have been tort wrongful keeping for his of a cow whether trampled a rose collided a motor glass garden, through plate window. or walked case more His tort instant no the ownership, use of "arose from” the maintenance or motor than it from” a the den or the vehicle would have "arisen gar- ownership, or use of a rose maintenance plate glass solely It arose from window. keeping wrongful a cow. [411 545.] Hence, beyond Tuttle’s conduct was subject the no-fault His conduct was still act. damage liability, though even plaintiff’s out of the use plaintiff’s truck arose damage a motor otherwise vehicle compensable benefits first-party provided Citizens Insurance no-fault
hi that Corro- argument of Celina’s analysis Aet- an additional insured under sion Control issue policy requires na’s we revisit same opposite perspec- but from the addressed in Thus, presented today question tive. the narrow motorist defendant is a whether Corrosion *8 Co Celina Ins v Aetna Archer, scope whose tort falls within the of the no- light policy’s fault act and Aetna’s language, principles act, the no-fault and the set unpersuaded forth in we are that Corrosion alleged Control is a motorist defendant because its wrongful alleged liability, and, hence, act its did ownership, not arise from the or maintenance Consequently, of the blh boom truck. we hold that injury, Control, Naasko’s as to Corrosion was be- yond liability policy.14 of Aetna’s Corro- rights Control, therefore, sion had no contractual policy, under Aetna’s even if Naasko’s claim was groundless.15 false, fraudulent, or
A Appeals We first note that the Court of conclu- sion of law that Corrosion Control "used” the blh boom truck is incorrect. An omnibus clause ex- liability coverage person organization tends to a legally responsible for the in- use of the named Couch, Insurance, 2d, sured’s vehicle. See Although agency §45:291. or contractual rela- tionship necessary party is not in order for a third p insured, id., become an §45:305, additional very type be, there must least, at the some relationship between the named insured and the party alleged to be an additional
insured in order responsible legally to find that the latter is for the use of the named insured’s motor vehicle. Appeals
The Court of concluded within the meaning clause, of Aetna’s omnibus parties distinguished We duty note that the have not between the duty indemnify, apparently assuming to defend and the that the question Thus, outcome of the latter will determine the former. case, assume, deciding, this we without that because Aetna no had against duty indemnify, duty it had no to defend in the suit Corrosion Control. holding, unnecessary 15 Givenour it is to determine whether the policy’s compensation applies workers’ exclusion to Corrosion Control. *9 434 Mich
298 . Opinion Archer, J. "using” truck when the blh boom was Control the use B & L Hotshot Control] had "[Corrosion pipes transport its from the to load and truck specified by premises Com Shell Oil to a location pany pursuant into be entered the contract Company.” Shell Oil and Corrosion Control tween added.) points correctly out, (Emphasis As Aetna fairly that can be however, inference the complaint allegations in Celina’s drawn from Control, was Oil, and not Corrosion that Shell is legally responsible truck blh’s boom use of for the complaint, injured. Celina on the In its was when Naasko specifically pled "were that blh and Naasko premises pursuant contract to a Corrosion Control pipe had which and deliver Shell Oil to load with been sandblasted by Corrosion Control.”16 alleged complaint that addition, Naasko’s place employees Control ordered Corrosion blh power pipes presandblasted near the overhead allegation Although place. this in the first line standing liability support may a landowner’s alone sounding negligence, to Celi- in when added claim acting pursuant to a that blh was na’s admission simply Company, there is contract with Shell Oil concluding Corrosion for on this record no basis "using” truck or was the blh boom Control was responsible legally use of blh’s own otherwise injured. Therefore, we the truck when Naasko holdings reject that Corrosion courts’ the lower truck. "used” the blh boom reject fundamentally, however, we also More considera- without courts’ conclusions lower tion of alleged underlying of its own nature wrongful become conduct, Control could Corrosion policy solely as a result under the an insured blh. As we or omissions of Naasko the acts brief it filed this fact in the trial Control also admitted in Naasko’s suit. Co Aetna Celina Ins v Ahchek, explained did not Tuttle, the no-fault act abol- impose third-party no-fault ish tort happens merely injury compensation because operation maintenance, of a use, or arise from is tort is abolished motor vehicle. What operation, arising use, maintenance of from the very liability, at Because motor vehicle. wrongful requires or fail- act least, a defendant’s concluded act, we ure to left intact the no-fault statute Tuttle arising than the from an act other ownership, of a motor vehicle. maintenance injuries arguably Although arose from *10 Naasko’s truck, the issue here is of the blh boom the use alleges complaint Corrosion Naasko’s whether wrongful upon conduct, which its liabil- Control’s ity predicated, from the also arose to Naasko is it does not. truck. We believe use of the boom complaint face of the does on the Nowhere allege indicating that Corrosion Con- facts Naasko wrongful the mainte- arose from trol’s nance, conduct operation sure, To of a motor vehicle. be allege injuries that his arose from the does Naasko truck and that Kuhns created use of the blh boom by negligently in- environment an unsafe work place pipes structing employees near the blh allegations power lines. these the overhead While may for to state a form a sufficient basis Naasko first-party prima policy the facie claim for benefits employer,17 his it is an insufficient legal support the conclusion that Corro- basis negligence the the also arose from sion Control’s own truck and fell within boom use blh no-fault of Aetna’s gravamen of the com- if we look to Even benefits, first-party his if otherwise entitled to Even Naasko was recovery compensation appear to under the award would bar workers’ policy’s compensation exclusion endorsement. workers’ Archer, that Corrosion Con- can conclude plaint, we all, directing for if at blh negligent, trol was overhead near place pipes employees Although the blh place. in the first power lines involved, Corrosion Control’s con- boom truck was ,from the use of the blh boom duct no more arose beverage from the truck than did the defendant’s if negligent, truck in Tuttle. Corrosion Control in all, alleged his very at for the reason Naasko pipes placed near complaint: ordering By line, failed to power overhead As we stated workplace. maintain a safe act, for spite compensation inju- of the no-fault is still deter- defendants cause ries nonmotorist fault: mined by system compensating is a The no-fault act damages incurred in accidents caused
injuries and Compensation is due without by motor vehicles. fault, adjudicat- regard ing system and the tort for In the partially abolished. context of fault was act, therefore, the abolition of "tort the no-fault maintenance, ownership, liability arising from the implicit or use ... sense of tort of a motor vehicle” carries damage injuries for caused ownership, maintenance or use of a motor by the vehicle. own, persons who maintain or use motor
Only injuries subject to tort vehicles can be *11 ownership, damage by caused maintenance or or use of a motor vehicle. sor cannot be damage use The nonmotorist tortfea- liability injuries or subject to tort ownership, maintenance or by caused of a motor vehicle. The abolition of liabil- from) (arising injuries damage caused ity for ownership, maintenance or use of a motor vehicle, therefore, not tortfeasor. the tort liabil- does abolish Mich 545- the nonmotorist ity of [411 Emphasis original.] in the 546. of the no-fault act and plain language Under the Co v Aetna Celina Ins Archer, J. therefore, in of the act interpretation our conduct, is upon which the tortfeasor’s arise from the mainte- predicated, must also in nance, of a motor vehicle order for operation and for the the tortfeasor’s be abolished compensation to receive no-fault plaintiff Absent this causal the tortfeasor’s and the tortfea- plaintiff’s injury link between the conduct, abrogate the no-fault act does not sor’s plaintiff’s right and the liability, the tortfeasor’s tortfeasor, is deter- compensation, to fault under common- regard mined It this causal link principles. precisely law tort is in missing present that case.
B argues Appeals Celina also that the Court Michigan Mutual Co v Liability Ohio in holding Co, Ins 688; 333 Casualty App 123 Mich NW2d (1983), claim that Corrosion Control supports its Although insured. Celina vigorously additional contends that "stands the same shoes as Michigan Mutual” and Corrosion Control is as Uganski much an additional insured as & Crane Service, insured, Michigan Truck Mutual’s we are noted, unpersuaded. Appeals As Court Uganski’s from the act of negligence prepar- ing Michigan Foundry Supply to tow a & Company truck, Helmer, during Michigan which Foundry Thus, employee, injured. the Court unani- Uganski’s negligent concluded use of its mously Michigan own with the conjunction truck, could not considered such an Foundry "be independent, intervening, disassociated act Helmer’s did not arise out of or flow from injury Michigan Foundry the maintenance or use case, present 123 Mich 696. In the App truck.” *12 Mich 288 302 Archer, J. clearly a nonmotor-
however, Control is alleged maintain a defendant, failure to ist and its "[pre- is far different than safe work environment paring ... vehicle[,] or stuck to tow a disabled activity the maintenance is identifiable with foreseeably neces- vehicle and and use sary.” such reject App Thus, 695-696. we 123 Mich Michigan on Mutual. Celina’s reliance reasoning analysis such as and of cases App Walter, 143 Mich Central Mutual Ins Co v (1985), 424 851 332; 372 542 lv den Mich NW2d (1985), persuade however, does us that Corrosion An auto- is not an additional insured.18 repair brought for mobile into a service station gasoline floor. The fuel leaked spread, onto the station open of a
came into contact with the flame bay, in the service and a hot water heater located erupted. fire Company (cmi) in-
Central Mutual
Insurance
premises
property
and settled the
dam-
sured the
age
then sued Detroit Automobile
claim.
Cmi
Exchange, the
insurer.
Inter-Insurance
automobile’s
property
legal theory
since the
Cmi’s
damage
of a
arose from the use or maintenance
18
771;
Longworth
Dep’t
Hwys,
App
315
See
v
of State
110 Mich
(1981) (under Tuttle,
since the defendant’s
NW2d 135
from the
motor
negligent
highway,
not from a
maintenance of
and
vehicle,
inapplicable).
Lundy
the no-fault act was
See also
v
(1985) (motor
757;
Groty,
App
367
448
vehicle
141 Mich
NW2d
defendants);
dealership
manufacturer
nonmotorist
Coleman v
(1985) (the
Franzon,
99;
App
86
no-fault act did
141 Mich
366 NW2d
repair facility’s
negligent
a motor
not abolish
vehicle
Sales, Inc,
App
repairs); Hengartner
132 Mich
brake
v Chet Swanson
(1984) (the
751;
abrogate
348
15
no-fault act did not
a motor
NW2d
liability);
Casualty
Group
repair
facility’s tort
Ohio
Ins
v
vehicle
(1983) (Mackenzie,
Robinson,
App
147;
127
and the defendant’s own- ership, operation or of a motor vehicle. 143 Mich App support proposi- 336. The Court found for this noting by tion our in from decision Tuttle that the damage property premises resulted from a hazard operation use, maintenance, unrelated to the App a motor vehicle. 143 in Mich 337. As present case, the mere fact that a motor vehicle resulting bodily involved an incident injury damage property simply not sufficient bring a claim asserted a nonmotorist scope defendant within the of a no-fault policy.
c Finally, underlying litigation the conduct of the persuades parties also us that themselves did regard Naasko’s claim to fall within the complaint of Aetna’s Corrosion Control’s answer raised the Neither Naasko’s nor of no-
issue property protection Under insurance an insurer is liable pay damage tangible property arising benefits for accidental ownership, operation, out of the maintenance or use of a motor subject provisions vehicle as a motor vehicle to the of this 500.3121(1); section and sections MSA 3127. [MCL 24.13121(1).] by Archer, coverage. addition, Control ex- In fault pressly brief, two filed almost in its trial conceded brought nearly years one suit and after Naasko by Mr. trial, "[t]he duties owed month before strictly limited to Plaintiff were Kuhns to the land to a business an owner of those owed verge on the It when Celina was invitee.” was nearly settling six months af- Naasko’s claim— trial month before and less than one ter mediation begin first raised Celina was scheduled —that tendering its defense to the no-fault issue Aetna.
CONCLUSION language unambiguous light plain *14 holding in act and our of the no-fault supra, in for a claim to fall it is clear order third-party scope of the no-fault act and within the pursuant policies liability act, the an issued plaintiff injured his more than that must show operation, injuries merely use, or from the Because act of a motor vehicle. maintenance opera- abrogates arising liability use, from the tort vehicle, the defen- tion, maintenance of a motor gives wrongful conduct, rise to that which dant’s operation, liability, from the must also arise Since Corrosion or maintenance of a motor vehicle. Control was er’s negligent, all, if under a landown- at liability use, owner- and not from the claim ship, truck, Cor- the blh boom or maintenance of whose a nonmotorist defendant rosion Control is scope liability beyond no-fault act of the and Aetna’s policy.20_ Brickley’s appealing concurring opinion because Justice very simply. question extremely complex and intricate
states an
Although
perpetuate
this,
opinion only
nothing wrong
his
serves
there is
with
employed.
analysis
lower courts
that the
the same flawed
Celina Ins Co v Aetna
Archer, opinion
principled analysis
fails to articulate a
of Aetna’s entire
omnibus clause.
Brickley’s
agree
We
with Justice
contention that our task
this
interpret
regard, surely
case is to
one can
case law
a contract of insurance. In this
no
dispute
principles
that the
articulated in the no-fault act and
interpreting
light
contracting parties’
the act shed
on the
no-
agreement.
agree
concurring opinion
fault insurance
reaches the
mere
also
that the
We
however,
legally
opinion,
upon
correct result. The
rests
conclusory
articulating
principled analysis
statements without
of Aetna’s omnibus clause.
notes,
concurring opinion
As the
whether Corrosion Control is an
upon
liability
additional
insured under Aetna’s
[the]
rests
"its
because of
concurring
acts or omissions” of either Naasko or blh. As ”
states,
opinion correctly
"because of
is not the mere "but
law,
commonly
rather,
for” causation test
narrowly
culpable
who then
found in tort
but
a more
"
concept implying
relationship connecting
construed
'a
persons using
another,
liability
acts of
the vehicle to
[the]
’ ” Post,
of,”
p
becomes
"insured.”
311. "Because
at the
least, includes,
to,
very
surely
but
is not limited
vicarious
agency
post, pp
defined in tort and
law. See
311-312.
Although
concurring opinion attempts
analyze
the "relation
Naasko,
ship” between Corrosion Control and
it fails to consider the
fact that both Aetna’s omnibus clause and the New York trial court’s
interpretation
language
Long
Lighting
of similar
Island
Co v
Co,
832;
Indemnity
Hartford
Accident &
Misc 2d
Because Naasko’s falling within the Corrosion Control claim policy, no-fault Corrosion scope of Aetna’s hold, policy. We rights no under Aetna’s had had no therefore, duty likewise that Aetna Celina, subrogee, as Corrosion Control’s indemnify or the Control’s defense the costs of Corrosion for to Naasko. paid settlement case is opinion this Appeals The Court of reversed, proceedings for the case is remanded opinion. with this consistent J., Riley, C.J., Boyle, concurred with Archer, J. argument made (concurring).
Brickley, Celina, accepted the Court by which was that Corrosion Control is an additional Appeals, is n(d) policy of the no-fault issued insured under § Aetna, coverage injuries and that Naasko’s agree We otherwise exists characterization that "our task opinion’s the lead Corrosion Control is an is to determine whether premises alleged liability arose from a hazard na’s where its contrast, we have unrelated to the use of the boom truck. blh explanation attempted provide principled analysis and rational proposition parties supporting the to a no-fault insurance contract, agreement, contrary did not intend to extend third- absent a organizations liability coverage party like Corrosion to individuals or " Control, separate negligence, apart own from the 'whose ” post, p to an See 312. was a contributor accident.’ true, Thus, inadequate upon although may wholly it to rest be is Control, all, if it indeed at the conclusion that "Corrosion liable because liable ’ negligence . of its own . . not 'because Naas- [and] Post, undisputed p . . .” 312. The fact is that ko’s acts or omissions . if did arise alleged negligence Control’s own and resultant truck, out the use of the blh boom Corrosion Control precise clause. It is this limitation would fall within Aetna’s omnibus third-parties, parties upon contract have is the to Naasko’s the no-fault the conduct of which the concurring opinion analyze. agreed, It that the fails to clause, meaning of Aetna’s omnibus for this reason within the relationship linking alleged liability requisite Corrosion Control’s missing. injuries is *16 307 Aetna Celina Ins Co v by Opinion Brickley, J. opinion, policy.”1 The lead Aetna’s insured under wrong that believe, route to answer takes the we compelled question.2 reason, we are For this though agree separately, with the even we write opinion’s ultimate conclusion—that lead policy. In our under Aetna’s is not covered Control judgment, law to ill to create new it is advised dispute the case can be when resolve a contractual simply interpreting by the contract itself. resolved opinion’s particular, ex- find that the lead In we Tuttle, 411 v Ins Co of America tension of Citizens (1981), unnecessary 536; 309 174 NW2d confusion. and invites Long prefer Island the lead of
We to follow Indemnity Lighting Co, v Hartford Accident & Co (1973), 967 a case cited 832; 2d 350 NYS2d 76 Misc Lighting party. Long by Island Co features neither substantially policy Aetna’s, a strik identical to a ingly legally facts, set of and a more similar questions presented. responsive approach to the i opinion correctly that Tuttle observes The lead liability.3 on tort we held focused the owner of a cow which wandered
onto a road
immu-
not claim the
and was hit
a truck could
granted
nity
in the no-fault act
from tort
did not
of the cow’s owner
because
1
J.).
Ante,
(Archer,
p 294
opinion
Court
The lead
defines the issue before the
several
opinion inquires
ways.
example,
lead
different
For
insured under the omni
Corrosion Control
is an additional
whether
policy,
of Aetna’s
but also whether Corrosion
bus clause
(ante,
[Archer,
J.]);
pp 297-298
whether
"used” the boom truck
wrongful
alleges
complaint
conduct
that Corrosion Control's
Naasko’s
arose from the
maintenance,
operation,
or use of a motor vehicle
(ante,
[Archer, J.]);
p
is a motor
and whether Corrosion Control
liability falls within the
of the no-fault
ist defendant whose tort
(ante,
[Archer, J.]).
p 299
and Aetna’s
act
J.).
Ante,
(Archer,
pp 294-296
Tuttle, contrast, 544-546. we are asked in this case to determine whether particular by acts and omissions are covered particular explained insurance contract. As we in DeLaGarza, 208, Auto Club Ins Ass’n v 433 Mich (1989), 217; 444 803 NW2d the considerations we bring statutory to bear on matters of construction interpretation and contract are not identical. Un- opinion’s argument less link in a further the lead provided support the conclusion in the principles context, no-fault established of insur- interpretation applicable, ance contract are not we accept cannot the conclusion that Tuttle controls the outcome here. analysis addition,
In we conducted in Tuttle simply necessary Tuttle, in this In case. we 24.13135(2). 500.3135(2);' 4MCL MSA 5Ante, (Archer, J.). 299, pp 304 Ante, (Archer, J.). p 299 Copper, 658; See Franks v White Pine 422 Mich 375 NW2d (1985). Celina Ins Co v Aetna Brickley, required the cow own- determine whether were operation, mainte- arose from the er’s nance, to decide a motor vehicle order or use of abrogated. had been his tort whether determining case, whether our task the instant operation renders clause of Aetna’s omnibus does not insured” an "additional Corrosion Control require inquiry.8 upon the same us to embark opinion, however, Tuttle to manufac- relies on lead the cover- would restrict rule of law which ture a §n(d) policy9 age provided Aetna’s wrongful acts arise defendants whose motorist operation, maintenance, mo- or use of a from requirement Clearly, is incor- no such vehicle.10 tor porated itself. Nor is the in the omnibus clause reading opinion’s defendant” "motorist of the lead justified requirement some into the contract provision Aetna’s other contractual presented Moreover, the situation unlike statutory provision appears obvi- no there be applicable ously support which would to the instant case *18 engrafting of the motorist-defendant Simply requirement omnibus clause. onto Aetna’s policy put, opinion Aetna’s the lead has rewritten something say it not.11 that does to make judgment, argument that In our arising abrogates the act [b]ecause use, of a mo- operation, or maintenance from the 8 §See ii. 9 ante, 292-293, pp language reproduced 7-8 at ns J.). (Archer, 10 J.). Ante, (Archer, p 297 by relying along opinion vein on in the same The lead continues authority propositions insured secondary that an additional for the "legally responsible of an insured vehicle” for the use must be 291, (ante, pp relationship” type insured to the named bear "some law, J.]). opinion neither case The lead cites [Archer, n support judicial policy language modi statutory language, this nor policy. clause of Aetna’s of the omnibus fication by Bhickley, J. wrongful the defendant’s
tor [insured’s?] conduct, liability, must gives rise to that which use, operation, from the or maintenance also arise of a motor vehicle.[12] misleading. If Aetna is need not be made and Corrosion Con- required indemnify to defend and trol, limitation any statutory it is not because Corrosion on tort but rather because liability, policy. Control is covered under Aetna’s ii we conclude inspection policy, of Aetna’s Upon must be satisfied following requirements that indemnitee, Control, in order for Corrosion insurer covered the motor vehicle owner’s be (Aetna).13 First, the indemnitee must be an insured Second, injuries under Aetna’s the covered must caused an occurrence. damage or be Third, damage or must arise out of the injuries maintenance, including loading or operation, Fourth, the auto- unloading, of an automobile. or temporary mobile must be an owned substitute resolving coverage question, we automobile. requirement, first need look no further than the which is satisfied. n(c)(2) qualifies of Aetna’s Naasko policy,
Under § using he the boom as an insured because during loading employee and was an truck n(d) Hotshot, insured, Inc. named B&L Section person organization other provides any of the acts or omis- which becomes liable because is also an insured. sions of an insured under §ii(c) Thus, contends, is liable Celina because of the acts Naasko, án insured who was *19 J.). (Archer, p 304 Ante, J.). 292-293, (Archer, ante, pp ns 7-8 See Co v Aetna Celina Ins Brickley, Celina, Control, argues under §ii(c); however, view, In insured. our also an therefore sug- of” "because of the words interpretation below Appeals the Court of Celina and gested by too broad. instead, of this analysis adopt, would
We case, In that Lighting, supra. Island Long in issue electro- named McGovern operator a truck high- truck touched a on the cuted when a boom Long Island maintained defendant tension wire Celina, (lilco). like Company Lilco, Lighting an automobile coverage under sought to claim the truck. to the owner of issued insurance Celina, argued its Like lilco and that of of” the acts McGovern "because therefore, under was, an additional insured claim, the stated: rejecting court lilco’s of on a rests its case broad construction Lilco n(d), acts "liability of the words or omissions section in because (c) (b) (a), of an insured organization is insured any It contends above.” of its occasioned because respect to Says in of an insured. acts or omissions lilco, insured, effect, drove employee, an "McGovern’s wires, his act led truck into the and therefore the in resulting sequence to the accident and claim position This is that "but for” lilco.” no load- there would have been McGovern’s acts ing, accident, liability. no lilco no However, a more believes that there is court than meaning "because of” circumscribed merely being sequential a link the chain connecting relationship imply words events. The the persons using the vehicle culpable acts of another, an "in- then becomes liability who persons or phrase appears to include sured.” The by way of vicarious organizations held McGovern, employees, or its or derelictions consensual user
of the vehicle.
*20
would be bizarre. A instrumental- ity causing injury in an accident to a McGovern employee would then become an "insured” under policy employ- McGovern’s own ee’s out of an simply because totally sequential faultless act was one factor
many leading Every events an accident. person encountering McGovern’s staff would then potentially leaving poorly lighting marks off a under negligent A be an "insured.” contractor road, pothole in property a owner area, party improperly who hazard, would all become "insured” attempted construction when the lilco’s car, driven, innocently McGovern disaster however met upon their encounter. The end result accept. too odd to Some rule of reason must accom- pany [Long Lighting the semantic exercises. Island Co, supra, pp emphasis 836-837. sup- Additional plied.] To this we would add analysis the observation Control, that all, Corrosion if it is indeed liable at is liable negligence, because of its own not because it must answer vicariously the acts of Naasko. If Naasko were in recovering to succeed a tort judgment Control, from it would be incumbent on Naasko to demonstrate that Corro- negligence sion Control’s proximate was a cause of Thus, damages. his Corrosion Control would not be liable unless were shown that Corrosion Con- trol’s not "because of” Naasko’s ” omissions, acts or but "because of its own acts or omissions. reasons,
For these we conclude that Corrosion is not an insured under Aetna’s Celina Ins Co v Aetna Opinion by Levin, J. Celina’s claim therefore fails. We concur with opinion. result reached the lead J., J. Griffin, Brickley, concurred (concurring). I concur because the Levin, injured employee, Naasko, Russell did not seek to recover Corrosion Control because of acts employer, Hotshot, Inc., or omissions of his B & L apparent owner of the insured or for *21 person acts or omissions of another other while such person using was the insured automobile.1 injured sought employee The rather to recover against Corrosion Control acts or omissions of involving Corrosion Control not of the vehicle.2 use insured, Corrosion Control was thus not an Casualty Company defendant Aetna Life & subject under the J., concurred with Cavanagh, Levin, J._ (d) Clause of the no-fault automobile issued to Hotshot provided coverage "any person” as an insured to other —such “only respect to his or its because of Control — (b) (c) (a), acts or omissions of an Insured under above.” (a) (c) "any The insured under was Hotshot. An insured under person using other while an owned automobile . . . .” negligence alleged complaint in the Corrosion Control negligently employee plaintiff was that instructed a fellow lines, place pipes, power where to it failed to remove the overhead provide work, place it failed to pipes safe and it failed move the equipment to a safe location.