Wolfe, T. v. Ross, R.

880 cognizable under the claim is

This Hеredia, WOLFE, at Ac M. See 395. Theresa Administratrix PCRA. cordingly, treating the trial court erred of the Estate of Kevin T. Appellant’s petition petition. as a PCRA Wolfe, Appellant However, for writ petition of habeas v. proper vehicle to corpus is not raise Rather, claim Appellant’s his claim. ROSS, Appellee Robert cognizable original as an action McCray Court. See v. Pa. v. Commonwealth Corrections, 440, Pa. Dept. 872 A.2d Casualty Farm Fire and State (“Where (2005) 1127, discretionary Company, Appellee. not being actions and criteria are contest ed, Depart but rather the actions of the Superior Pennsylvania. Court of computing ment in an inmate’s maximum and minimum dates of confinement are 5, Argued Aug. 2014. an action for being challenged, mandamus 7,May Filed 2015. examining remains viable as a means for statutory requirements whether have been

met.”); Heredia, 97 A.3d at 395.6 Appellant’s

Because claim cogniza- is not

ble under the PCRA or in a petition for corpus,

writ of habeas we the trial .affirm petition.

court’s dismissal of the See Com- Clouser, 656, v.

monwealth 998 A.2d 661 n. (Pa.Super.2010) (Superior can af- Court basis).

firm any trial court order on

Order affirmed. brief, Appellant only argues 908, late Heggins, the DOC wealth v. 809 A.2d 912 n. 2 calculation; erred in its he does not chal- (issues (Pa.Super.2002) waived where not lenge the trial court’s order. Statement of questions presented contained in statement of ¶ Complained Appeal, (Ap- Matters of on at 3 brief). any argument portion or in pellant challenges “prison authorities misinterpretation of the trial court’s court- Appellant challenged has the DOC’s calcu- ordered credit for all time served in this lation in the Commonwealth Court of Penn- case”); Brief, Appellant’s (Appellant's at 4-5 times, sylvania at least three and the Com- "disagreement was not with the trial court’s monwealth Court has determined the DOC ..., judgment of sentence but with the properly Wyatt calculated his sentence. v. Departmеnt misinterpretation of Corrections Beard, 558 M.D. 2008 WL miscalculation” of the credit for time and/or (Pa.Cmwlth.Ct. 25, 2008). July *3 The Su- served). Thus, Appellant has waived preme Pennsylvania Court of affirmed this claim that ambigu- the trial court order was Beard, Wyatt determination. 602 Pa. Castillo, ous. Commonwealth v. 585 Pa. (2009). 979 A.2d 847 (2005) (any issue not in 1925(b) waived); Rule statement is Common- Cole,

James Pittsburgh, appellant. Sherman, Pittsburgh, C. Leon for State Farm, appellee. ELLIOTT, P.J.E.,

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

OPINION J.: Wolfe, M. Theresa Administratrix of the (“Administra- Wolfe, Estate of Kevin T. trix”), appeals grant from the trial court’s summary judgment in favor of State (“State Farm Casualty Fire and Company Farm”) and its corresponding denial of her summary motion for judgment. The issue before us is whether the motor vehicle exclusion Robert Ross’s homeowner’s operates with State Farm pre- clude recovery on the facts herein. The did, trial court concluded that it based on decision Wileha v. Nation- this Court’s wide Mutual Fire Company, Insurance 887 A.2d 1254 (Pa.Super.2005). Adminis- tratrix alleges that the ambig- exclusion is inapplicable herein, uous and on the facts and that Wileha should negli- be limited to gent entrustment or supervision cases. urges She us to adopt apply the inde- pendent concurrent cause rule announced in State Farm Mutual Automobile Insur- ance Company Partridge, 10 Cal.3d 109 Cal.Rptr. 514 P.2d 123 Pennsylvania. law of After careful review, we affirm.

Administratrix commenced this civil ac- tion for wrongful death and survival against Robert alleged Ross. She the fol- lowing. In late June Mr. Ross was a graduation party host of at his resi- dence where alcoholic beverages were fur- * reassigned This matter was January to this author on 2015. any guests, accept any or made available to verdict settlement from

nished decedent, nineteen-year-old including her Farm in proceeding against State full sat- impaired “in his Kеvin became Kevin. judgment. isfaction of the The consent perception, coordination and re- judgment, judgment was entered on March 2010. he was point where unable sponses 3, 2010, On December Administratrix safely.” of vehicle operate sort proceeded attempt judg- collect the ¶ proximate Complaint, “As direct proceeds ment garnishing of Mr. caused impairment result policy, Ross’s State Farm homeowner’s alcohol,” party Kevin left the on dirt bike $100,000. limits had Justin, by Mr. son “lost con- owned Ross’s stipulated State Farm and Administratrix object a fixed trol of struck parties to certain agreed facts. fatal and suffered collision.” decedent, plaintiffs operating “[t]he while ¶ Complaint, allegations against 8. All Mr. vehicle, a motor a object struck fixed off negligence sounded in and arose Ross location, the insured and fatal in- suffered of alcohol to the minor. furnishing from the juries in Stipulation, the collision.” Joint Farm, Ross’s homeowner’s State Mr. ¶ 3. “[Administratrix] contends that cover- carrier, the claim refused to defend age is afforded under the terms policy’s coverage based on the ex- denied policy, State Farm because decedent [her] injuries out of the main- arising clusion for as a proximate died direct and result of and use a motor vehicle tenance owned impairment by caused the alcoholic by pro an insured.1 Mr. Ross filed se beverages furnished allegedly made and/or in which complaint answer he de- graduation party available to him at a for provided nied that he furnished or alcohol- son, Ross, by Ross’ which was hosted matter, to In new beverages ic Kevin. he which was under the covered State Farm to the extent Kevin con- averred pоlicy, policy limits of which are beverages, alcoholic he was contrib- sumed ¶ $100,000.00.” 12. Id. “Ross denied utorily negligent, negligence and his own provided to proximate guests, was the cause of his death. alcohol was and State contends if fur- Farm that even trial, to parties agreed Prior to enter covered, nishing alcohol otherwise were judgment against a consent Mr. Ross for the fact that the decedent’s arose death $200,000. By agreement, Mr. terms operation out of the of motor vehicle to all assigned Ross Administratrix of his triggers precludes an exclusion which cov- policy under his rights ¶ erage.” Finally, parties Id. at 13. Farm, including right State sue the stipulated ripe that “this case now for a insurer for breach of contract and bad decision as to whether there is addition, agreed faith. Mr. Ross for policy Ross under State Farm cooperate with Administratrix Admin- underlying the claims made in the law- agreed forego istratrix execution ¶ any of against suit!.]" Mr. Ross’s assets and to Id. at 16. and, so, legal 1. We note that the exclusion herein was limit- if whether it was cause of the addition, injuries resulting ed to from use of an in- accident. insurer reserved case, in the instant sured-owned right challenge agreement whether operated by a vehicle or rented to insured. between Administratrix and Mr. Ross was fair It did not exclude aris- subsequently State reasonable. Farm ing out of use of vehicles. all motor stipulated rights if the waived those court determined that covered Originally, right retained the State Farm claim, against judgment could be entered alcohol, litigate whether the furnished insured parties summary Both filed motions for lished that the court committed an error of trial judgment. The court entered sum- law or abused its Murphy discretion.” mary Farm, in fаvor of judgment State Duquesne University, 565 Pa. as to and denied same Administratrix. (2001) (citations omitted). appealed Administratrix and filed a Pa. interpretation “The of an insurance 1925(b) R.A.P. concise' statement of errors a question of law that we will review de complained appeal, of on and the trial novo.” Kvaerner Metals Div. of Kvaerner 1925(a) court issued its Pa.R.A.P. opinion. U.S., Inc. v. Commercial Union Ins. (2006). 589 Pa. originally presented Administratrix two following principles inform our review. issues: purpose “Our in interpreting insurance A. Whether the trial court erred in contracts is to ascertain the intent of the failing to find that the motor vehicle parties as manifested the terms in. used exclusion a homeowner’s insur- policy.” written insurance Babcock & ambiguous ance in that it Wilcox Co. v. Am. Nuclear Insurers & did not state whether Mut. Energy Underwriters, Atomic Liab. proximately must be caused use 76 A.3d 1 (Pa.Super.2013). Where the of the motor vehicle or simply caus- language contract is clear and unambigu ally connected with use of the motor ous, we give must effect to that language vehicle. it unless violates a clearly expressed public B. Whether the trial court erred in policy. Exch., Adamitis v. Erie Ins. failing to find that the motor vehicle (Pa.Super.2012). A.3d 371 Alternatively, exclusion in a homeowner’s insur- policy when a provision is ambiguous, it is policy ance inapplicable was to be construed in favor of the insured and claims where the motor vehicle was against the insurer. Penn-America Ins. operated by the victim and where Peccadillos, Inc., Co. v. 27 A.3d only claim of negligence against (en banc). (Pa.Super.2011) policy A provi the insured was that he had negli- ambiguous sion is only when it is “reason gently furnished alcoholic beverages ably susсeptible of different constructions to the underage operator of the ve- capable being understood in more hicle. than one sense” when applied particu to a Appellant’s original brief, at 4. sup- In her lar set of facts. Allstate Fire and Casual plemental brief, Administratrix focuses on ty Insurance Hymes, Co. v. 29 A.3d Wilcha, distinguishing which involved 1172 (Pa.Super.2011). claims for entrustment and su- pervision, from the negligent furnishing of Herein, State Farm based its de

alcohol to a minor claim herein. She also Thus, fense on a policy exclusion. urges us to apply the independent concur- burden was on the insurer to establish its rent causation rule to coverage find on the application. Donegal Mut. Ins. Co. v. instant Appellant’s facts. supplemental Baumhammers, 595 Pa. 938 A.2d brief at 3. (2007). In reviewing grant of sum question provides that: mary judgment, “may we disturb the order of the trial only court where it is estab- COVERAGE L—LIABILITY $100,000 State Farm for the limits of Summary Judgment, Farm’s Motion for at n.

without proceedings. further See State 1. (em- policy, at 2 location.” Homeowner’s brought made a suit is If is a claim phasis original).3 damages because an insured for against damage to property bodily pro- ‍‌‌‌‌‌‌‌‌​​‌‌​‌‌​‌​​​​‌​‌​‌‌‌‌​​‌‌‌​​‌​​‌‌​​​‌​‌​‍The trial court held caused applies, which this facts ambiguous was not on the vision occurrence, we will: an Ad- plain meaning. upheld herein di- assigns ministratrix this error and limit of up our pay

1. Eichelberger our v. War- rects attention damages the insured for which ner, Pa.Super. liable; and legally held language identical where (emphasis in policy, at 15 Homeowner’s it ambiguous because did not define be original). An “occurrence” is defined as: whether excluded “Occurrence,” when used Section by the vehicle or proximately caused motor poliсy, [Exclusions] II means causally connected with motor vehicle. accident, including exposure to condi- finding ambiguity rested Since that tions, results in: facts, .very they perti- are different bodily injury; or a. analysis. nent to our damage; property b. Eichelberger, decedent was Repeated or during policy period. oper- of a driver motor vehicle that ceased exposure same gen- continuous ating presumably on a to a highway, due to be one conditions considered eral gasoline. pas- Decedent her lack occurrence.” and, gasoline senger walked to station policy, at 2. Homeowner’s fuel, upon their return with two men All four stopped to assist women. provides: at issue The exclusion near persons gathered were the rear Coverage M [liability] L Coverage positioned partially the decedent apply payments] do [medical ap- Another vehicle highway. to proached pass was about the dece- bodily injury property or dam- e. precise vehicle at the moment when dent’s age arising ownership, the out of inadvertently stepped the decedent maintenance, use, or loading unload- de- left into That'vehicle struck path. its ing of: and, aftermath, who in the the men cedent also stopped had to render assistance were trial, (2) jury the the injured. or At found both oper- a motor owned negligent. to be by or loaned to driver decedent ated rented or insured, or the lia- appeal At issue was whether on poli- (emphasis bility provisions of decedent’s vehicle policy, at 16 Homeowner’s provided by cy policy ATV an insured her homeowner’s original). An “owned and/or auto coverаge. the recreational or Under terms designed used for roads,” behalf agreed pay the insurer to public policy, off “mo- utility purposes bodily damages all due to purposes tor cover- of its insured vehicle” by any person injury an insured or death sustained age under the “while off triggered decedent had the been if Administratrix's 3. the collision occurred on insured If premises, have operating the ATV would not been an ATV motor had been or other definition, motor vehicle within the by the owned rented vehicle that was not applied. have and the exclusion would not insured. Additionally, the exclusion would have ownership, mainte- the “arising determining applicability out of exclusionary nance, clause homeowner’s or use of owned vehicle.” Ei- policy, injuries whether issue was at 749. chelberger, supra We construed to from the decedent arose the decedent’s “arising out of’ the words to mean the use of her motor vehicle. We found the “causally broader connected with” and not policy to be because ambiguous it did not “proximately by,” in caused accordance injury state whether had to proxi be Supreme with the Court’s decision in Man- mately by the motor caused vehicle or Casualty Insurance Co. ufacturers simply causally connected with it. We not Casualty Goodville Mutual Pa. ed that “different canons of construction (1961). 603, 170 A.2d 571 We held that applied exclusionary clauses as distin ie., causation, “but for” a cause and result guished clauses” and relied enough relationship, satisfy the ve- Casualty, the rule in Manufacturers policy provision. hicle act decedent’s supra. “for purposes We held that of an unwittingly stepping into path of an exclusionary clause, when the words ‘aris oncoming car overseeing while the refuel- ing out of an of the use automobile are ing causally of her vehicle was connected insurer, strictly against read then it ownership, maintenance and use must be concluded this clause acts to Casualty, her vehicle. See Manufacturers only injuries exclude those which are prox supra cause (holding a and result relation- imately by caused automobile.” Ei ship satisfy is enough to the “arising out chelberger, supra at When this exclu provision of’ automobile insurance strictly against insurer, sion was read Thus, policy). there was under it did not apply to the decedent’s conduct the decedent’s automobile policy. insurance proximately by were caused movement, decedent’s the use Under terms the decedent’s of her vehicle. policy, insurance compa- ny agreed all pay damages its insured State Farm contends that there is obligated legally pay became as dam- ambiguity surrounding no the words ages bodily injury “caused an occur- by” “caused on the facts herein as the Eichelberger, rence.” supra at 750. An motor both proximate vehicle was accident, occurrence was defined as “an cause and the in fact of cause conditions, including injurious exposure to decedent.4 The insurer directs our atten results, during term, Wilcha, tion to supra and Proper Allstate bodily injury property damage.” Id. ty Filachek, and Cas. v. Ins. Co. 2011 WL However, policy the contained an exclusion (E.D.Pa.2011), 2111219 where pol identical bodily for liability injury for “arising out of icy language held to be unambiguous was maintenance, ownership, the operation, addition, and enforced on similar facts. In use, loading unloading any motor the insurer maintains that Wilcha and Eichelberge operated by Filachek, owned or or rented or after decided decades loaned to r, insured.” Id. it was injury, the cause the not the 5 Co., Republic 4. "arising In McCabe v. language pollution Old Ins. Pa. 425 out of” exclu- phrase unambiguous). 228 A.2d 903 sion "arising policy used out of” in a exclusion ambiguous. was not In accord Madison Eichelberger, 5. State Farm contends that Harleysville Constr. Co. v. Mut. Ins. ignoring 557 this Court erred in lan- 100, 110, (1999) (finding Pa. guage referring bodily cause of the insured, determined, the use of the vehicle the em- rather conduct harm.6 According ployee that caused the applied. the exclusion whether Farm, why claims based that is to State also critical in Mo- This distinction was conduct, negligent such as the insured’s Company Mutual Insurance v. torists entrustment, supervision, and negligent (E.D.Pa.1988), a Kulp, F.Supp. minor, es to a do not furnishing alcohol to be decision Wilcha Court found the effect of the exclusion. cape case, In persuasive. minor sus- Wilcha, riding a fur- parents tained while mini-bike operator In sued adjacent his uncle on collided the dirt nished aunt and a motor vehicle that parents thirteen-year-old property. His asserted claims operated by their bike supervision and negli- negligent entrustment brought The driver claims of son. uncle, they the aunt against parents. against entrustment gent claims to home- dispute that the home- turn submitted the their parents did not carrier. The homeowner’s coverage for acci- owner’s owner’s excluded a motor vehicle exclusion that a motor vehicle and contained involving dents virtually identical to the one at issue using operating was was their son and/or declaratory The insurer filed а that term was defined herein. motor action to determine whether the judgment when the accident policy, the homeowner’s claims. policy provided was whether occurred. The issue court, citing Pulleyn, super- supra, The district negligent claims of entrustment .trig- ap- the Wilchas held that the motor vehicle exclusion directed toward vision plied precluded coverage their as it duty part defend on gered triggered use of the bike that insureds’ homeowner’s carrier. liability, negligent super- not their alleged In Pulleyn relied upon We Cavalier Wilcha, we vision or entrustment. Corporation, Pa.Super. surance reasoning called this “sound” and “consis- (1986) (en banc), Pennsylvania juris- with more recent tent had no where we held that insurer Wilcha, prudence.” supra negligent duty to defend a entrustment ultimately This concluded in Wil- against employer an under a casual Court claim an that the insurer had no which contained exclusion cha ty policy on claims for injury arising duty from maintenance to defend the Wilchas personal supervision and en- operated by negligent negligent of an or use automobile ambiguity no employment. of his trustment. We found employee the course exclusionary the minor’s Pulleyn, language. that it was not Since we reasoned bike, of the vehicle arose from use of dirt entrustment injuries, applicable. but vehicle exclusion was plaintiffs that caused the motor However, Pennsylva- injury, and focused on the act that entrustment. instead liability. approach, rejected caused rea- courts have nia negligently soning "although that the act of Pulleyn Corp., Insurance v. Cavalier (if entrusting a motor vehicle is essential Pa.Super. 1019-21 primary) negli- the [of the element of tort (1986) (еn banc), surveyed Court the entrustment], giving liability gent rise to evolving regarding applicability case law actually triggered until the motor tort is not negligent entrust- vehicle use exclusions to of negligent used manner result- vehicle is in a acknowledged claims. We that some ment injury.” ing in Id. at 1020. do not state courts hold that such exclusions coverage an insured is sued for bar when use, negligent provi- contends that of a motor vehicle. first Administratrix should supervision coverage “bodily claims excluded for injury entrustment sion differently than the alcohol- property damage be treated or out of arising points claim herein. She to Wil maintenance, related ownership, use, occupancy, negligent entrust cha discussion ’s renting, loading or loaning, entrusting, un- Exchange v. ment in Erie Insurance tort loading or any motor vehicle trailer.” Company, 352 Transamerica Insurance Filachek, supra at *2. It also contained a A.2d 389 Pa.Super. exclusion, supervision which vehicle ex- that specifically negligent opera the fact injury coverage bodily arising eluded “for tion the entrusted vehicle is an essential supervision of an out insured’s argues of that tort. She that the element statutorily imposed liability another or operation the motor vehicle decedent’s arising maintenance, from ownership, liability Mr. for was not essential to Ross’s aircraft, any use vehicle or trailer negligently serving alcohol to a minor. policy.” not covered that Id. under We find the distinction to be of no conse argued, Filachek as Administratrix ar- quence policy language where the excluded herein, gues that the terms of the injuries coverage for caused a motor ambiguous. Kap’s were representative as- arising not conduct out of use or serted, herein, as Administratrix asserts maintenance of motor vehicle. inapplicable that exclusions were be- Filachek, supra, a federal district purported negligence cause Filachek’s was applied Pennsylvania court law in declar- unrelated to the vehicle and constituted a atory judgment action to wheth- determine separate, non-automobile-related cause of duty er a homeowner’s insurer had a injury. rejected The district court both involving defend a case both alcohol- finding arguments, to be “un- claims related and claims for deniably intertwined with Maher’s use of supervision that were not limited vehicle actually gave rise to the use of a motor vehicle. Filachek was a injury.” *4. Id. at The court continued passenger in a operated vehicle owned and that the instrumentality vehicle “was the by Maher when the vehicle struck and and the death ‘arose out of Kap. getting killed Prior to into the vehicle use’ of a motor vehicle.” Id. The court night, Filachek and spent Maher relied for proposition Wilcha evening drinking, legally and Maher was “any liability-inducing conduct which oc- Kap’s personal representative intoxicated. curred before such use cannot be divorced commenced an for wrongful action death negligent driving from the led to Maher, Filachek, against survival Id.; Wilcha, car supra fatal accident.” at they a bar that frequented. had Liability n. 3. against premised Filachek was on claims The Filachek court continued “the provided that he Maher alcohol and vehicle use exclusion is directed encouraged Maher drink to excess and liability-inducing those supervise driving. fаiled to Maher’s All- actions re- state, maintenance, use, carrier, ownership, late Filachek’s or re- occupancy Instead, behalf, tained counsel on of a vehicle. his but motor also filed a declaratory ‘bodily inju- exclusion bars judgment seeking action all ry property damage’ declaration that not obligated which arises out of maintenance, use, ownership, defend Filachek because the policy, occupan- under ‘the clauses, two cy, loaning, excluded renting, entrusting, loading ” arising use, or supervision unloading motor or trailer.’ Filachek, policy language, specifically clear the use (emphasis origi- *4 at supra disjunctive, the to credit Ad- nal). of order was on the cause The focus proposed ministratrix’s construction. the insured. the conduct of injury, not on attempts distinguish to Administratrix also Administratrix contends involving passen- claims that a as Filachek where, apply does as the exclusion the driver with alco- “negligently plied ger here, against claims Mr. Ross are her negligently supervised the and then hol solely pro on the fact he premised operation of the vehi- driver’s intoxicated It to was Mr. vided alcohol decedent. supplemental brief at 8. Appellant’s cle[.]” conduct, ac Ross’s non-vehicle related Wilcha, the avers further She Administratrix, cording that was the to of essential element the was an accident, proximate cause of the and the sim- liability. Id. Administratrix insured’s liability of provision poli the homeowner’s express language ignores the ply only cy is concerned with the conduct of the focuses on whether mo- exclusion insured, the not with the conduct of the injury, not the cause of the tor vehicle was thе operation decedent. The of dirt bike giving rise insured’s conduct whether the “only was a fortuitous circumstance under of a motor liability arose out use to injury Appellant’s which the occurred.” serving of alcohol fact that vehicle. The brief 14. State Farm counters that the Mr. to subjected minor Ross to a minor furnishing of alcohol to the dece of a motor the involvement even without type liability-inducing dent was change fact that the vehicle does preceded conduct that the use of the mo inju- language excludes vehicle, tor Court held Wilcha arising of use a motor vehicle. ries out separated could from the negligent not be undisputed that the decedent’s use of It is driving in the that culminated accident. proximate cause and ATV was both Wilcha, supra at 1263n. 3. injury. his find no the cause in fact of We position, of her Administra support language ambiguity exclusionary on urges reasoning trix us consider facts herein. Oliver, 128 N.J. Group Salem issue, affirming N.J.Super. A.2d 138 her second Administratrix a case (App.Div.1990), that the motor vehicle exclusion is argues Therein, virtually on an identical its facts. two reasons. She con inapplicable for nephew, uncle alcohol to his applies only furnished tends first that exclusion minor, riding he was the uncle’s motor vehicle while where tortious use neph was an and the other than ATV. There accident resulted harm someone injured. At was whether the A variation of ew issue operator vehicle. rejected company uncle’s homeowner’s insurance argument was advanced Wilcha, i.e., duty had a to defend a claim based on his that the exclusion was limit furnishing nephew. of alcohol to his After firomthe insured’s ed arose recognizing generally that insurers are ob provided cover use of motor their arising ligated out of to defend insureds social age damage claims, question host the court framed insured’s vehicle. We re another’s use of avoid that obli as whether the insurer can ject the herein as the exclusion argument separate because a excluded bodily injury arising gation simply applies expressly risk, of an all-terrain vehicle operation either of the use of motor vehicle out (ATV), an additional cause operated constituted owned an insured distinguished negligent injury. It en- disregard have insured. would We 890 DeCoster, eases, finding Fire Co. v. 67 supervision Farm & Cas. A.3d

trustment claims, 40, in contrast to social host 46 (Pa.Super.2013); that see also those Mutual claims, not be isolated from Haver, 534, could liability v. Pa. Ins. Co. Benefit insured operation (1999) of the ownership (dismissing A.2d notion automobile. complaint’s negligence that claims were conclusive whether exclusion for held the insurer

The Court Salem “knowing endangerment” implicated, was count duty to defend social host had a holding necessary it was to look at the an additional basis for liabili- provided as it allegations factual contained the com ownership ty of the insured’s independent Thus, plaint). purposes coverage, for It reasoned that one or use of ATV. only negligence a motor vehicle in to matters not that the need not own order causal who, case, serve alcohol to another against asserted Mr. Ross was his furnish a minor. It viewed the service of ing alcohol to Kevin. as alcohol and ATV concurrent causes determining purposes

of the accident Furthermore, Administratrix’s re duty had a whether the insurer to defend. misplaced. liancе Salem is The Sa declined, however, expressly The court to lem Court its limited concurrent causation go Supreme as the California Court as far duty approach to the to defend and ex Partridge, supra adopt a did pressly to theory declined extend that to context rule of homeowner’s coverage, is the issue before us. required that an insurer was to de- both Cardiello, See 202 N.J. Flomerfelt indemnify proxi- fend and “concurrent (2010) 991, 1000-1001 (noting that long mate causes ... so one majority holding Salem limited its to an by policy.” covered causes is The New duty only, insurer’s to defend a duty to Salem, Jersey Supreme qualified Court indemnify under a concurrent causation may hold not that the ulti- “[w]e insurer Moreover, theory). regard mately policy, only be liable under the but duty defend, to Salem is consistent with duty it must honor its to defend.” current Pennsylvania jurisprudence. As Salem, (N.J.1992). supra at 140 we noted in Penn-America Ins. Co. v. Peccadillos, Inc., supra,

Preliminarily, reject ascertaining we Adminis defend, a duty whether there is it is tratrix’s contention that the nature claim nature of the claim that negligence pled, premised solely on is determinative. Thus, liability, social the obligation host of cov to defend is deter determinative erage applicability or the mined allegations of the exclusion. reference to the determining duty complaint. whether there Foreign is a Am. & Ins. Co. v. indemnify, defend, Ctr., Inc., duty unlike Jerry’s Sport we 606 Pa. (2010).7 are not limited pled. to the claims State Penn-America, Moreover, provide coverage. this Court alle- held that the insurer gations ejected premises a bar from agrees its against any to defend the insured patron so inebriated toas render him a dan- arising suit under the even if such car, ger liberally behind wheel aof when false, groundless, suit or fraudulent. insured, construed in favor stated agrees Since the insurer to relieve the in- subject claim under that estab- sured defending of the burden of even general policy. lishment’s commercial fact, those suits which have no basis in recognized Id. We obligation to arises whenever the defend duty complaint obligation, injured party to defend is a may distinct filed separate apart duty potentially insurer’s within come discharged. to The bullet struck the second attempt escape a final In in left and passenger penetrated arm exclusion, urges this Court Administratrix cord, resulting paralysis. her spinal con independent apply to adopt indemnity to es approach current cause interpreted court The automobile Partridge, and discussed poused supra, broadly It coverage. to afford re Salem, to do so for several We decline authority finding enough it was lied on reasons, not the least of which is “some, that the vehicle bore albeit insured so, likely would were we do slight, shooting causal connection Administratrix seeks achieve the result 100, 811, Cal.Rptr. Id. at 109 incident.” case. instant 514 123. The P.2d homeowner’s “bodily injury contained an exclusion for Partridge, the issue before the court In ... arising out of the ... use of un- was the insured was covered whether motor The trial court found vehicle[.]” his policy, automobile der his homeowner’s that the insured had been both acts, both, his policy, or when filing modifying gun by trigger its the other one automobile-related and unre- driving his mechanism and vehicle off vehicle, were lated to a motor concurrent paved rough road onto the terrain. It The insured en- causes of accident. these two negligent reasoned acts hunting Magnum a .357 joyed and owned indepen committed the insured were accident, he filed the pistol. Prior to dent, proximate concurrent causes of the pistol lighten trigger mechanism the injuries, of which passenger’s one was non- pull, creating hair-trigger. trigger related and the vehicle other related use accident, insured, day of On the aof motor vehicle. Since the insured’s friends, two of his was accompanied by gun sufficed, negligent modification of countryside in in the the insured’s driving itself, fully to render the insured liable passengers He one of his vehicle. injuries, liability resulting for the ex shooting jackrabbits from the win- were independently of use isted the insured’s moving dows of the vehicle the insured car, coverage the court found his under the Magnum his using modified .357 policy. homeowner’s point, At one the insured purpose. road While Administratrix assumes she would paved his vehicle off the drove escape the exclusion that keep jackrabbit within the car’s head- bars causation, bump, if lights. adopted The hit a and the herein we concurrent progeny suggest otherwise. Partridge’s either on the insured’s pistol, which was wheel, Exchange resting As illustrated in Farmers Ins. v. lap top steering having Foreign "caused or contributed to the in policy. American and Ins. Co. v. bar Center, (Jerry’s Jerry’s Sport Sport patron, Inc. Cen- did not limit liabili toxication” 94, 834, I), Super reasons, ter 2008 948 A.2d PA ty that could be assessed for other (Pa.Super.2008) (quoting Wilcha 845-846 patrons ejecting who then such as inebriated Co., Mut. Ins. 2005 PA Nationwide Fire got the wheel of a car. See also Done behind (Pa.Su- Super 1258 gal Ins. v. Baumhammers Pa. [595 Mut. Co. added)). per.2005) (emphasis (Pa.2007) (under 147], 938 A.2d 286 inten Inc., Peccadillos, Ins. Co. v. 27 Penn-America exclusion, act fact that were tional (en banc). (Pa.Super.2011) 265 of an insured caused intentional conduct duty until the insurer to defend remains duty did absolve insurer of to defend every "clearly of action averred defeats cause , allegedly negligent con other insureds whose complaint.” underlying conduct). duct enabled Penn-America, liquor liability exclu- sion, which excluded based on the 892 Court, Cal.App.4th motor vehicle or

Superior applied relevant exclusion See, Cal.Rptr.3d coverage. the concurrent cau- e.g., bar Belmonte v. approach ipso does not serve sation Employers Cal.App.4th Ins. facto (2000) (vehicle vehicle exclusion in a 434, to avoid motor Cal.Rptr.2d ex- Farmers, policy. a tod- precluded neg- clusion where van grandparents’ home with- dler exited her ligently driven by insured’s niece hit and grandmother’s knowledge to greet out her victim, injured though even insured grandfather. unknowingly He drove over allegedly negligent allowing was his driveway. negli- the child in the A vehicle obtain key); niece to v. Gurrola Great gence against grandfa- was asserted claim Co., 65, 17 Southwest Ins. Cal.App.4th 21 ther; supervision claim a (vehicle (1993) Cal.Rptr.2d 749 exclusion lodged against The grandmother. trial precluded coverage comprehensive under court held that the motor vehicle exclusion general liability policy where insured’s grandparents’ barred under the negligently driven rebuilt Bantam Coupe policy for the homeowner’s death of the collision, passenger killed though even two-year-old child. allegedly negligent insured was vehicle). appeal, Superior

On the California Court welding The Farmers Court the issue as whether framed the two authority relied on the latter line of were dependent independent causes or holding affirmed the trial court’s that the proximate concurrent causes of the child’s exclusion barred ‍‌‌‌‌‌‌‌‌​​‌‌​‌‌​‌​​​​‌​‌​‌‌‌‌​​‌‌‌​​‌​​‌‌​​​‌​‌​‍on the facts be- surveyed injuries. fatal The court Califor fore it. involving nia such cases exclusions and is no dispute There herein that the mo- following. observed the In Partridge, su played tor vehicle an active role and was Kohl, pra, State Farm Fire & Co. v. Cas. instrumentality fatal decedent’s 1031, Cal.App.3d 131 Cal.Rptr. 182 720 injuries. parties stipulated that “[t]he (1982), Casualty and Ohio Co. Ins. v. Hart plaintiffs decedent, operating while a mo- Co., Indemnity Accident & 148 Cal.

ford vehicle, tor struck a object fixed off the 641, App.3d Cal.Rptr. 196 164 location, insured and suffered fatal cases, similar “the where excluded instru ¶ in the collision.” See Stipulation, mentality did not an play active role in Thus, even if adopt we were to the inde- causing injury,” generally courts found pendent approach concurrent causation the motor or vehicle other relevant first espoused Partridge, and apply it apply, (quoting exclusion did not Ohio Ca consistently with subsequent California 646, sualty, supra Cal.Rptr. 164); 196 construed, case law as it has been also, e.g., see Ins. Co. America v. Safeco exclusion would bar coverage still on the Parks, 992, 998, Cal.App.4th 170 88 Cal. facts herein. (2009). Rptr.3d 730 The court distin We acknowledge that number of guished other cases such as National American jurisdictions employed Coburn, indepen- have an Ins. Co. v. 209 Cal.App.3d 257 (1989) (motor dent concurrent Cal.Rptr. approach 591 causation to cov- vehicle rolled victim) erage However, over determinations. and Prince v. closer United Nat. Ins. Cal.App.4th reading those cases reveals nuances in Cal. (motor (2006) Rptr.3d 727 its application from statе to vehicle heated state. For up instance, notes, on a hot day), the motor Farm where State some of played an in causing jurisdictions active role those have held injury concur- only instrumentality was the of injury. proximate only escapes rent an cause ex- cases, In such the court truly separate observed clusion if it is and distinct of a In are not in contravention stat- ditions See Allstate excluded cause. Blount, policy. Administratrix has 491 F.3d ute or public Company surance (Missouri Cir.2007) (8th deter courts that the exclusion is violative alleged Moreover, proxi policy. there are concurrent or public whether statute mine determining an public policy, the rationale mate causes regard indepen have each cause could injuries arising whether for excluding coverage injury); accord brought about dently use of an insured’s operation out of Lexing Inc. v. Gateway Holdings, Hotel use of another insured’s (Mo.Ct. Co., 275 S.W.3d Ins. ton policy is obvious: vehicle in a homeowner’s Fid. & also States see United App.2008); seeking carrier Ctr., 129 Elizabeth Med. Co. v. St. Guar. liability losses that attend the avoid 45, 716 N.E.2d App.3d Ohio with motor vehicles higher risks associated (1998) which a loss for (holding that “when are public roads and operated from coverage results an insured seeks traditionally by the insured’s mo- covered causes, at least one of or more two policy.8 tor vehicle and under insurance is covered reasons, foregoing For we find all of excluded, coverage which is at least one of motor exclusion in the that the provided to the loss will extend operates to instant case exclude home- policy is covered under the cause loss tragic for the death of owner’s loss,” the excluded cause independent of decedent. Administratrix’s (1) i.e., loss cause of “when the covered action in for a cause of provides basis affirmed. Order (2) require not of itself and does and make risk to it BENDER, the excluded ELLIOTT, P.J.E.,

occurrence of FORD actionable”). the aforementioned ALLEN, Under P.J.E., SHOGAN, OTT, tests, coverage on bar the exclusion would JENKINS, STABILE, JJ., join the facts herein. Opinion. conclusion, not find the exclu- In we do J., WECHT, dissenting opinion. files a ambiguous on the facts herein. sion to be “injuries arising out interpreting Even WECHT, BY OPINION DISSENTING proximately “as language narrowly of’ J.: the in- by,” undisputed it is caused respect I have the utmost strumentality of Kevin Wolfe’s death was Majority’s ap- careful review and learned we find the exclu- Additionally,

the ATV. three-judge-panel of this plication Court’s Final- applicable on instant facts. sion in v. Mutual decision Wilcha Nationwide ly, jettison jurisprudence to our we decline (Pa.Su- Fire Insurance Partridge any in favor of or variation its However, after careful consid- per.2005). In approach. causation concurrent eration, join Majority’s I am unable to Commonwealth, in- generally permit we analysis or conclusion. to limit their contractually surers distinguish- I find that on their obli- would Wilcha impose to conditions matter. This case’s and con- able from the instant gations long so as the limitations Corp., Pa.Super. A.2d recognizing the exclu- the motivation for banc) (1986) (en sion, Eichelberger v. suggesting 1019-21 we that homeowner’s are Warner, Pa.Super. 434 A.2d 747 coverages are mu- insurance and automobile (1981), examining policy on favor each expressly rejected We tually exclusive. Pulleyn its own terms. Insurance position in v. Cavalier our resolution instead should follow dеci- furnished alcohol and whether the alcohol Warner, 290 Eichelberger harm; Pa.Su- legal sion was a cause of Decedent’s 750-51 per. stipulated Farm State that would remit we and authorities relied principles $100,000 if limits court upon therein. as a matter of that it found law was obli- gated provide coverage to for Wolfe’s Majority expands

Today’s ap- Wilcha’s claims. circumstances; plication new circum- view, that, my warrant a stances differ- I need restate detail the relevant Majority doing, ent result. so motor at vehicle exclusion issue in this question calls into this Court’s more appeal, except to note as in most of deeply-rooted precedent by Ei- embodied below, the cases discussed the crux of the I chelberger. Majority’s do not share the meaning phrase matter lies skepticism our regarding reasoning in Ei- “arising ownership, out of the mainte- It chelberger. possible harmonize nance, use, loading or unloading of Pennsylvania’s prior concerning cases ve- operated by motor vehicle owned or hicle exclusion clauses homeowner’s in- rented loaned insured.” See id. policies effectively surance more than (reproducing 884-85 the relevant Majority. my does the Were views to full).2 provisions Accordingly, I turn fully

prevail, preserve would more we directly my departing reasons for Pennsylvania’s enduring commitment analysis. Majority’s the learned ambiguous policy pro- construe insurance in favor of coverage visions for the in- Wilcha, In parties case for the Thus, I respectfully sured. dissent. Majority, and in elephant is the room, a brought negligent driver pattern procedural history The fact entrust- and ment against in this case are claims straightforward. parents Theresa child alleged Wolfe with underlying action whom the driver collided while the that, as a direct proximate and result of operating child was a motor bike. Faced provision Robert Ross’s of alcohol to with a motor vehicle exclusion their (“Decedent”), Wolfe’s son Decedent de- akin to the exclusion in son, parted on a dirt by bike owned Ross’s case, parents maintained nonethe- bike, lost control and struck fixed less that of negligent claims entrustment object, suffering injuries. Maj. fatal See negligent supervision and indepen- existed Op. trial, at 882-83.1 Before Wolfe and dently the child’s use of motor bike Ross judgment entered into a consent such a duty that the insurer had to defend $200,000,pursuant assigned to which Ross against the claims. to his rights Wolfe under a homeowner’s Majority’s The discussion Wilcha Farm, by issued State which had reproduction: warrants duty denied any to defend indemnify under the Court in policy’s [This motor vehicle Wilcha relied Pul ] exclusion. Thereafter, at Id. 883. leyn State Farm v. Corp. waived Cavalier Insurance [351 right litigate 347], its whether the Pa.Super. insured are, Majority aptly 1. The allega- contained a motor vehicle owner’s dant, At they at the last several bars. bar virtually identical to exclusion that visited, until clos the two men remained The insurer the one issue herein. there, ing. “pounded While Maher shots declaratory judgment action to filed a liquor” in Fila presence. Filachek’s provided whether the determine chek, *1. 2011 WL at When the coverage for the claims. The district closed, bar Filachek and Maher decided to court, Pulleyn, supra, held that citing City, drive Atlantic with Maher behind applied the motor vehicle exclusion passenger’s the wheel and Filachek it рrecluded as was use Maher, legally drunk a consider seat. triggered al bike that insureds’ eventually collided with a car margin, able leged liability, negligent super not their Wilcha, by Kap was traveling or we driven when Maher vision entrustment. However, court). Pennsylvania applies regardless district principle of whether This generally publish published. the federal district court declined to the case was See Pantel Exch., arguably reduces that decision’s is v. Ins. 1066 n. 3 its decision Erie Corrs., Dep't Ray v. (Pa.Super.2006); Tile value still further. Roman Mosaic & Co. Cf. 2007, 2008 WL at *2 & 670 & n. No. 453 M.D. Aetna Cas. Sur. (Pa.Cmwlth.2008) 1997) (reject- (unpublished) (Pa.Super. (adopting reasoning of n. 4 petitioner’s upon unpublished ing of Arkansas district reliance Western District decisions, noting the Common- published opinion rejecting federal court’s contrary unpub may wealth not even cite its own un- appellants’ upon Court reliance decisions). published a lished decisions of the Eastern District per Kap drinking, miles hour. supervision at over 100 was Filachek’s Maher’s such, Id. at *1. responsibilities killed. but rather his as by encouraging permitting defined plaintiff brought survivor suit Maher to drive while intoxicated.4 against above-named defendants. She alia, liable, inter alleged that Filachek was Eichelberger, I in principle which find provided he alcohol to Maher because on point despite more with the instant case encouraged excessively, him drink did divergent pattern, Herby its fact Eichel- drive, investigate Maher’s fitness parties injured in berger, one of several a transportation, failed to obtain alternative accident, car sued Vivian Warner and the operated failed to ensure that Maher Rice, administrator of the estate of Dava safely, and over vehicle failed takе driv- being Warner and Rice the two drivers ing when became clear Maher was jury involved the accident. The found operate safely. not able to the vehicle Id. Eichelberger against .favor both de- fendants. with Warner settled the verdict Filachek’s insurer assumed his defense Eichelberger return assignment for an policy, under a homeowner’s but filed judgment. Then, filed declaratory prae- Warner judgment contesting action its cipe against a writ of duty execution Rice’s policy’s to defend the basis of the Notably, policies, motor vehicle auto insurance exclusion. the in- issued.respectively by Valley surer also a separate policy relied Mutual and provision Kemper. granted Federal The trial court excluded for “the summary judgment in favor negligent supervision by any of Warner and per- insured against Valley person.” son of at *2 Mutual and Federal Kem- (quoting Id. per. policy). subsequent At issue in the cross- appeals to this Court was whether either Citing non-precedential Third Circuit policies obligated both were to cover and this decision Court’s decision Pul- See Rice. 434 A.2d at 748. leyn, the district court found that both unambiguously exclusions applied to Eichelberger bar The facts in were as fol- coverage. car, Id. at (citing *3 Countryway driving lows: Rice was her her Ins. v.Co. Slaugenhoup, Fed.Appx. seat, in the passenger sister when car (3d Cir.2010)). Thus, if stopped running. Filachek was parked Rice the car as liable, “such undeniably guard [was] in- close to possible, rail as but tertwined with Maher’s use of the entirely could not remove car from the that actually gave injury. rise to the lane of travel. Rice and her sister then vehicle Maher drove was gasoline, both in- traveled on foot to obtain strumentаlity and a hopes merely neces- that the car run had out of sary plaintiffs] [the element in they gas, theories fuel. When returned with the liability against of both Samaritans, men.” Id. at *4 good including two Ei- Herby added). (emphasis Consequently, chelberger, as in stopped to assist. While Wilcha, underlying vehicle, claim was prepared Samaritans to fuel the defined reference stewardship was standing “slightly highway Rice on the driver relation vehicle’s behind her use. vehicle with her back to oncom- simply, Put then, what was at ing issue was not traffic.” Id. 749. Just Filachek, Notably, rely provision excluding rather coverage "negligent than exclu- sively upon policy’s motor vehicle exclu- analog supervision,” which has no in the in- sion, the district court ruled in the alternative stant case. coverage precluded by was

897 dif- “arising out of’—led to partially language i.e., approaching was Warner — insur- vis-d-vis auto and Warner neared ferent results lane. As obstructed backward is instructive: stepped policies Rice ance disabled Rice, struck path. Warner into Warner’s [C]overage interpreted are clauses car, into her lost control of ran broadly greatest pos so as afford vehicle, killing Rice and rear of Rice’s v. protection to the insured. Mohn sible A found jury injuring both Samaritans. 576], Reading Pa. [458 Am. Cas. Co. of negli- been Rice both had Warner (Pa.1974); Penn-Air, Inc. 326 346 at 748-49. gent. Id. N. Am. Pa. [439 v. Indem. Ins. Co. of (Pa.1970); 511], Miller v. previously 269 A.2d 19 Supreme Court Because our Liability Ins. Am. Pa.Su [239 American Prudential Co. had Morris v. held Co., 467], (Pa.Super.1976) Pa. 185 A. 201 1017 Surety per. “ (en banc); v. Mut. Celley ‘maintenance’ as used ‍‌‌‌‌‌‌‌‌​​‌‌​‌‌​‌​​​​‌​‌​‌‌‌‌​​‌‌‌​​‌​​‌‌​​​‌​‌​‍Benefit Pa.Super. insurance Ass’n [229 of an automobile Health & Accident context (en 475], within the (Pa.Super.1974) all acts come [that] includes 324 A.2d 430 word,” banc). meaning of the ordinary scоpe and of construction These rules are replace because, it “inescapable necessary as this has [C]ourt we found exhausted noted, has been [that] ment of fuel are policies insurance essence ve use[,] which a motor and without Mut. contracts of adhesion. Ranieli v. mainte species inoperative, 261], hicle is Pa.Super. Ins. Am. [271 Co. of Life Eichelberger, 434 A.2d at (Pa.Super.1979).[5] nance.” Be A.2d 396 Mut. Ins. Co. v. Pan construction, State Farm (quoting of these canons it cause (Tex. 542, 545 437 S.W.2d Am. Ins. that a homeowner’s emphasized must be 1969)). had Notwithstanding that 'Rice policy are not policy and an automobile into stepping deemed mutually been See necessarily exclusive. that Rice’s auto path, we found Warner’s Co. Par Farm Mut. Auto. Ins. State obligated provide 811], Cal.Rptr. insurance tridge [10 Cal.3d (even result rela (Cal.1973) because “a cause and though P.2d satisfy ‘arising tionship enough inclusionary poli of homeowner’s clause of an insur provision out automobile of automo exclusionary clause cies Id. Rice’s act was policy.” ance policies the in insurance held bile main ownership, from the not “so remote by the had both been issued same sured as to be tenance or use her vehicle nearly and contained identical insurer Id. unconnected with them.” policies held not to language, such were exclusive)!.] mutually As one trea be Turning policy, Rice’s homeowner’s tise states: judice, we as in the case sub noted (S)ome con- courts and writers have “bodily injury or

excluded of the use problem further the arising out of owner- fused property damage use, exclusion- maintenance, the automobile with the loading ship, operation, person- of ary clauses the homeowner any motor vehicle unloading liability general comprehensive al operated by or or loaned rented owned have liability They focused policies. as to explanation insured.” Id. Our rather on the exclusions materially attention why deployment of identical this Exch., "the insurer drafts the of the insured because v. Erie Ins. 5. See also Adamitis ambig (Pa.Super.2012) (noting that policy[] coverage”). and controls interpreted provisions' be in favor uous should agreements. insuring than on the We then turned to examine the Califor- insuring agreements poli- nia Supreme Partridge, The Court’s decision The supra: are not same. automo- cies agrees'to pay damages all

bile In Partridge, Supreme Court of Cal- ‘ * * * * * * arising out of the use ifornia was asked to construe the same general whereas the the automobile’ language as that which nowis before our agrees to all liability policy pay dam- Court, i.e., “arising out use” of an ‘ * * * out an ages arising occur- judice, automobile. As in the case sub general The exclusion of the rencef.’] language in Partridge was con- liability policy suggest seems to that if inclusionary tained both the clause of out of ‘use’ the loss arises an automobile held the insured away premises automobile from the it exclusionary and in language However, is excluded. such a view policy. homeowner’s The Partridge agreement ignores insuring on the court said: policies, and the fact different that one (different In view of the canons of focuses on an occurrence and the oth- construction) the fact that an accident er they on the automobile. And are has been found out to ‘arise of the use’ mutually exclusive. The court has of a vehicle purposes of an auto- a legitimate determining interest necessarily mobile deter- whether the use of the automobile was question minative of the of whether produced the ‘occurrence’ [that] that same falls within the accident Clearly, liability. if the ‘use’ of the similarly exclusionary worded clause only automobile incidental (citations of a policy, produced liability the event that omitted) should not be an excluded un- event 811], Partridge Cal.Rptr. 514 P.2d [109 general liability der homeowner or at 128. policies. And, as a California court In Partridge, the was faced with [e]ourt stated, has give courts will broad a situation where insured had com- construction to coverage provi- jointly mitted two acts [that] sions but strict construction to the caused the accident. The insured in Thus, exclusions. there are cases that Partridge gun by filing had modified a provide coverage under the home- trigger so that it trig- had “hair” policy in owner’s the absence of a ger. gun The insured took this with him causal connection between the use in his vehicle when he went to hunt the accident. jackrabbits. accident, At the time of the intentionally insured drove his vehi- The general exclusions of the paved cle off the road and onto ... policies homeowner and the insur- bumpy gun terrain. The accidentally ing agreement of the automobile poli- discharged, injuring passenger. cy are not mutually exclusive and re- issue in Partridge was whether the in- covery can be had under polices. both policy, sured’s homeowner’s in addition Appleman, Practice, [7A Ins. Law & policy, insured’s automobile cov- (1979) § 4500 ] ered this recognize accident. We (citations Eichelberger, 434 A.2d at 751-52 Partridge factually сase different modified; omitted; footnote emphasis add- from the case instant the court ed). policies did find that both covered the joint of of only but was one two causes that there were for the reason accident Thus, if the accident. even we assume accident[,] one joint two causes the car that the connection of with the non-auto[-]related. and one auto-related type non-ambiguous is accident the of Nonetheless, that the it be noted should relationship normally [that] causal would un “liability said Partridge Court play, exclusionary the clause into bring possi could policy der the question presented the crucial is ambiguity the of bly predicated be liability insurance whether in the context of exclusionary the clause coverage provides for an accident Id., Cal. [109 the accident....” instant (the by jointly an insured risk caused an Rptr. P.2d] Such trigger negligent filing of the mecha- the of exists under facts the ambiguity nism) (the by an excluded risk clause, exclusionary The present case. driving). Defendants cor- that the does not although says rectly when such contend that two out of’ bodily injury “arising apply proximate risks constitute concurrent etc., vehicle, any of motor ownership, the accident, the causes of an insurer is such must not state whether does long the so as one of causes is liable by auto or be caused proximately policy. covered causally connected with the simply of purposes hold that [W]e auto.... case, although the instant clause, exclusionary an when the words in a in- accident occurred an out the use of automobile “arising of’ of the sured’s modification insurer, against strictly are read gun suffices, itself, in to rеnder him be concluded that then it must injuries. fully resulting liable for the injuries only those clause acts to exclude damages to Vani- these facts the Under are caused proximately [that] are, of the language da under home- con interpretation This automobile. clause, coverage “sums [that] owner’s rule insur general sistent with the obligat- legally the Insured ... [became] poli read to effect the policies are ance of the pay” negligent filing ed to because indemnity or cy’s purpose of dominant mechanism; trigger inasmuch as insured. payment arises from insured (citations Eichelberger, 434 A.2d at 751-52 conduct, and his non-auto-related exists modified). car, “use” his we independently only Partridge, aspect Nor this the believe the homeowner’s covers Eichelberger clearly which this Court liability. part, that war- adopted endorsed Id., 811, 514 P.2d at 129 Cal.Rptr. Partridge,

rants “State consideration. added). (emphasis Farm that because the use of contended Heavily relying upon reasoning set causal role played the car some light Partridge, forth in question, injuries ‘arose out accident exclu- we found in the vehicle ambiguity meaning within the use of the car’ sion, cover- Eichelberger, we found that exclusionary provision.” the homeowner’s the use of the age Although lie. would Id., P.2d at 126. Cal.Rptr. [109 811] or “but-for” cause of vehicle was factual argu- Partridge rejected that court accident, did not un- the exclusion ment: bar when ambiguous terms alone, that, standing would Partridge’s car was “occurrence”

Here the “use” causal proximately played incur sole cause of Yanida’s 900 It noting Pennsylvania which the suit was is worth that harm

role Co. v. Pecca Penn-Am. Ins. based.6 long recognized courts have “concurrent Cf. (Pa.Su Inc., dillos, 259, 265 27 A.3d jоint causation” the context of and sev- (en banc) provision that (holding per.2011) liability, holding “multiple eral sub- preclude did exclusion not of alcohol may cooperate produce stantial factors where, among alcohol-relat duty to defend Petroll, Harsh v. 606, injury.” 584 Pa. excluded, clearly were allegations ed (2005). 209, Moreover, Par- 218 a for plaintiff improp also stated claim tridge’s approach concurrent causation has patron bar erly ejecting intoxicated when by form a adopted been some considera- or should have known that staff knew ble number of our states.7 sister drive). attempt plaintiff would Noska, 917, (Minn. 1983) Eichelberger one has read as I 6. At least court 331 N.W.2d 923 Co., (finding coverage Fire Auto. do. See Kalell Mut. & Ins. homeowner’s when insured 865, (Iowa 1991) (review- driving smoldering gar 471 N.W.2d 867-69 fire caused a while Eichelberger length ing finding that bage placing to landfill: "where act of live coverage damages arising would lie for embers uncovered barrels was a cause fires, by attaching pulling a tree limb down it to a policy of the afforded cov risk, tree motor because removal of a erage regard for the without to interven independent negligence "an act of limb was contributing consisting tion of the cause by policy,” Watts, truck”); and one is covered hold- [that] use of the Allstate Ins. Co. v. ing independent neg- 883, (Tenn.1991) (”[T]here "when two acts that,L 811 S.W.2d 887 ligence alleged, one are vehicle-related and coverage should in a be situation where a vehicle-related, coverage pro- one not is still non[-]excluded cause is a substantial factor in vided under the producing homeowner['s] unless damage injury, though or even negligence prox- the vehicle-related is the sole may an excluded cause have contributed injury”). and, imate cause some form ultimate result stand alone, ing properly would have invoked the ”); Nguyen, 7. See Scottsdale Ins. Co. v. 158 Ariz. exclusion .... Wallach see also v. Rosen 476, 1386, (Fla.3d (Ct.App.1988) (finding berg, P.2d 540 763 cov- So.2d 527 1388 Dist.Ct. Couch, erage house-moving company employ- App.1988) where (quoting 11 Couch In when, (rev. ed.1982)) during moving § ee (finding was electrocuted surance 2d 44:268 a house, power jury it came contact with question regarding coverage into line under all- street); spanning U.S. Fid. & Guar. Co. v. risk where weather combined with Co., Mut. Ill.App.3d negligence State Farm Auto. Ins. 107 to cause loss because did 190, (1982) 63 Ill.Dec. 437 N.E.2d provision specifically ”contain[] [that] (finding coverage expelled where child was exclude[d] where a covered and an loss,” operated by day from vehicle care produce because excluded cause combine to negligence noting other against coverage may acts were asserted that such lie even care); Co., day Kalell v. Mut. Fire & Auto. prime Ins. when the insured "the risk is not 1991) (Iowa accident”), (finding disagreed N.W.2d 865 efficient cause coverage may Co., where lie arose from with American Home Inc. v. Assurance Sebo, limb); using pick-up pull (Fla.2d truck to Dist.Ct.App. down tree 141 So.3d 195 Co., 2013), LeJeune v. Allstate Ins. granted by 365 So.2d review Sebo v. Am. Home. (La.1978) Co., Inc., SC14-897, (finding coverage where sheriff Assur. No. WL driving (Fla. cortege 2014); with funeral failed to secure Oct. Braxton v. U.S. (Mo.Ct. intersection "the [the because decisions Fire court] Ins. 651 S.W.2d 619-20 could App.1983) find hold where the (finding coverage compre automobile under sought applied use exclusion property policy containing clause to be so hensive ‍‌‌‌‌‌‌‌‌​​‌‌​‌‌​‌​​​​‌​‌​‌‌‌‌​​‌‌‌​​‌​​‌‌​​​‌​‌​‍exclusion as to avoid "arising ownership otherwise for harm out use general liability policy, covered underlying the ex- firearm” where claim was clusion apply clause negligent supervision employee does where the in- who Gilbert, negligence indepen- customer); sured’s is a injured act result of shot and Houser v. of, with, though concurring (N.D.1986) dent even (holding his use 389 N.W.2d 630-31 automobile”); of an Waseca Mut. Ins. Co. v. vehicle insurer and farm insurer a involvement of motor vehi- view, way to reconcile without the my the best recognize change is to the fact that the Eichelberger Wilcha cle does not with Wilcha, in all of the claims gist language coverage the of excludes for that Filachek, and most of the other Pulleyn, a injuries arising out of use of motor Majority fail- by the addressed cited undisputed cases It that vehicle. the dece- directly supervision or entrustment ures of use the was both the [dirt bike] dent’s operation of a the use or associated with in cause fact of proximate cause the cases, only not did the In these vehicle. injury. ambiguity find in the We no the operation use or result accident exclusionary language on the facts here- tort underlying but the in. be from the separated claim could at Maj. Op. 889. operation. In none of those cases vehicle’s entirely issue negligence act at did the analysis is with our This irreconcilable of a motor vehicle the introduction precede which, reasoning in unlike Eichelberger, injury— precipitating into events Wilcha, al, et involved an assertion of or, Partridge, work Eichelberger as in coverage upon a act— based of, with, independently in tandem but in of Warner’s stepping front vehicle—that al- provision as the vehicle’s use—suсh have with might been associated the use asserts based which Wolfe cohol but not inextricable the automobile matter. liability Ross’s instant use, in a from that as would be case or super- entrustment claim Majority The dismisses distinction Indeed, rejection Majority’s vision. little discussion: required have argument would Wolfe’s distinguish Filachek attempts [Wolfe] There, Eichelberger: in contrary result passenger a involving claims that as also, ignore[d] the “simply we arguably with alcohol “negligently plied the driver of the exclusion that fo- express language in- supervised the negligently and then on whether the motor vehicle was cuses operation of vehi- toxicated driver’s injury, cause of the not whether Brief at Supplemental cle[J” [Wolfe’s] liability giving rise insured’s conduct ex- simply ignores the [Wolfe] 8.... use of a motor out of vehicle.” [the] arose exclusion that fo- press language Maj. Op. telling And it is that the 889. motor vehicle was cuses on whether the of the motor vehicle “express language” injury, not whether the the cause of in instant matter does not exclusion liability giving conduct rise insured’s head-on, rendering it as address causation of a motor vehicle. arose out of use [the] we it to ambiguous point on this as deemed serving fact of alcohol to The that in Eichelberger.8 even be subjected [Ross] minor "a risk and an excluded risk judgment vehi- when covered pro must rata where share causing injury,” “apparent it is negligence and concurred in act of non-vehicle- cle-related being pro- is not held to negligence were insurer act of involved related it did con- risk [that] vide caused mud carried onto truck accident vehicle); template premi- received and for it no Burlington highway by S. insured’s um”). Co., 125 Vt. 215 A.2d 508 v. Am. Fid. (1965) despite (finding duty to defend "streets Lawver, exclusion, supra, Notably, inter- the court where and sidewalks” upon ambigui- Partridge relying not preted negligent maintenance of culvert arose from resolving ty the case in favor plaintiffs to fall that caused car into sinkhole determination, but, road); stronger in a suf- Boling, Lawver Wis.2d (1976) independently con- (finding covered fices one risk 238 N.W.2d Thus, Eichelberger at 750-51. it is no means un- distinction -between maintain implicitly by tenable to the motor vehi- highlighted Wilcha requires cle exclusion different result Majority’s failure to cite case than in a an entrustment case case of or a similar motor vehi- which the same independent concurrent or causation. unambiguously cle exclusion was deemed coverage that did not sound to exclude Majority The distinguishes Eichelberger substantially supervision in or upon the that very basis it “rested entrustment, equivalent cir- or some facts,” 885, Maj. Op. at different from the cumstance where insurance excluded However, those in instant the case. after coverage for an otherwise covered cause 885-86, case, reviewing that at the id. Ma- inextricably that intertwined with an was jority no offers materia! comment as to It emphasis warrants excluded cause.9 how those factual the differences lead Ma- am- that whether an insurance contract is jority to conclude that Court should context; biguous must be assessed Filachek, non-binding favor Wilcha and circumstance unambiguous what is one essentially that federal case echoed Wil- cha, be may ambiguous nonetheless in anoth- over our earlier decision Eichelber- generally Eichelberger, er. A.2d ger. Specifically, Majority See 434 the does not (1993) injury Rptr.2d (finding to the because that ex coverage tributes risk 749 no Lawver, pressly policy. negligent welding is covered the See where the claimed of a acknowledged 238 N.W.2d at 521-22. We vehicle was intertwined with the use of the Eichelberger, opted much in but for more injury); the motor vehicle that led to Nat’l Am. Coburn, ruling language 914, that restrained course the Cal.App.3d Ins. Co. v. 209 257 question ambiguous. Eichelberger, (1989) was Cal.Rptr. (finding coverage 591 no (quoting Partridge, at 752 109 Cal. parents parking where to set failed brake 811, ("We 129) Rptr. recognize 514 P.2d at loading while vehicle and a child moved the Partridge factually that the case gear different "park”); lever out of see U.S. also Fid. & Ctr., the from instant case and that the did court Guar. Co. v. St. Med. 129 Ohio Elizabeth policies (1998) find that both covered the App.3d accident (finding 716 N.E.2d 1201 joint that for the reason there were two coverage malpractice no under exclusion for accident[,] because, causes one auto-related and negligent credentialing a claim of Nonetheless, one non-auto[-]related. it like the entrustment mal Partridge to, that should be noted the said Court practice necessary was rather than inde of, that the harm)). under homeowner's pendent Majority the cites predicated possibly upon could the ambi be litany the above of California cases in an guity exclusionary clause in the context Partridge, effort to even establish under of the instant accident. coverage, Wolfe would be entitled to read ing abrogating Partridge them either as or See, e.g., Maj. Op. (citing limiting at way preclude 891-93 Farmers such a as to cover Court, Super. age Exch. Cal.App.4th Maj. Op. Ins. v. 220 under the instant See facts. (2013) Cal.Rptr.3d (finding 163 parenthetical 609 no 891-93. But as the abovе de clear, coverage negligent operation scriptions of truck make none of the cited cases grand independent, homeowner who ran over and killed involved non-vehicular causes Co., daughter); filing trigger Prince Un. Nat’l Ins. 142 like mechanism in (2006) Cal.App.4th Cal.Rptr.3d 47 Partridge provision alcohol (finding Indeed, no post-Partridge under foster mother’s instant case. cases fairly abrogated where she left children in cannot be said to have died); Rather, they Employ hot car and Belmonte v. diminished that case. these cases Co., Cal.App.4th my ers Ins. 99 Cal. reinforce view that entrustment su (2000) Rptr.2d (finding no pervision distinguished cases can be on a negligent supervision injuri principled where child’s basis from cases like the matter us, single ous use of a proxi van constituted where before the vehicle served as the injuries); mate cause of the Gurrola v. Great instrument of an from arose vehi Cal.App.4th S.W. Ins. cle-independent Cal. tortious conduct. can avoid con- tion whether insurer distinguish Eichelberger’s effectively separate materially identi- because a ex- obligation that an exclusion clusion risk, operation the instant case of an all-ter- to the exclusion cluded cal (ATV), be read in favor and thus must ambiguous, rain vehicle constitutes an addi- insured, did not because injury. We tional cause of find of’ phrase “arising out whether specify obligated remains to defend insurer inci- the vehicle was an both when applied may It the covered risk. avoid cause the accident and or factual dental obligation simply operation because the cause proximate was the when of an constitutes additional ATV Indeed, rather than dis- the accident. injury. cause Eichelbеrger instant tinguish rely case, seems to Majority we favor that should Wilcha

proposition the It is not at all clear that exclusion it is more current than merely because apply the of an ATV to operation (observ- Maj. Op. at 886 Eichelberger. See provides liquor the when insured were “decid- that Filachek ing Wilcha victim, the who then drives insured’s ”). Eichelberger Howev- after ed decades the not Arguably, ATV. exclusion does Supreme er, justice one our Court as apply that context. When a observed, a not recently court “should fairly supports interpretation favor- principles the fundamental frustrate insurer, the able to the insured and both overturning a case that decisis stare be interpreted the should favor under- not the doctrinal does contravene the insured. existing precedent our pinnings regard to several factually not similar A could the contrary conclusion defeat aspects the case at bar.” Com- [of] crucial insured, of the expectations reasonable — Moore, -, Pa. monwealth v. to respected should be the extent (2014) (Baer, J., concur- A.3d In policy’s language allows. certain I not declare the ring). would desuetude contexts, provided an if Newman had when distinc- principled an older case a ATV, both, or beverages, alcoholic ample subsequent provides cases tion would cover a result- policy apparently disparate the cases’ out- explanation for if the ing Arguably, accident. accident comes. while was driv- [plaintiff] had occurred ing property, insured’s] on [the invita- ATV Majority rejects The also Wolfe’s ifOr reasoning of New would be covered. adopt [the insured] tion to Supreme Group [plaintiff] had Jersey provided insured] Court Salem [the (1992). Oliver, 128 N.J. and the accident had oc- with alcohol Maj. Group, Op. at 889-90. Salem an- [plaintiff] driving See curred while was injured oper- while plaintiff the minor ATV, arguably insured] other’s [the ating the insured’s ATV after the insured those possibili- would be covered. Given given him alcohol. The court found had exclusion, wording ties and the obligated at to that the insurer least was reasonably expect could insured] [the host claims these defend social him when he that would cover engendered: events and the alcoholic provided both ATV to beverages that contributed the causa- disputes gener- one that insurers are No [the insured’s] tion of an accident not on their insureds ally obligated defend ques- property. The critical on social host claims. (citations omitted).10 Notably, it qualification

Id. at 139 its not that the “h[e]ld rejected Jersey Supreme Court the New may ultimately insurer be liable under the Jer- reliance two New insurer’s but policy, only duty that must its honor finding no on sey coverage precedents defend,” Group, Salem 607 A.2d at cases, Salem those unlike basis merely 140—an observation rooted Group, presented entrustment court, question presented there —the inextricably or claims inter- supervision finding defend, duty necessarily found operation with the of a vehicle. twined coverage could lie. See also Pecca at court Group, Salem 139. The dillos, (“The obligation A.3d at 265 “[tjhose proceed[ed] opinions held that defend arises complaint whenever the filed assumption entrustment injured party may potentially come of a motor is inter- supervision policy.”). within the It ownership operation twined contrary would be nonsensical to law contrast, of the motor vehicle.... grant the insured defense if a finding of alcohol to minor serving does plead favor of on the facts depend ownership on the insured’s of a perceived plausible ed was to be a motor vehicle its entrustment to anoth- Moreover, legal outcome.12 the Salem er.” Id. Group court, repeated in its allusions to Majority makes much fact closely alternative but similar scenarios that at issue Salem Group was the coverage that would lead to empha and its duty claim, insurer’s to defend the not its upon sis expectations the reasonable obligation provide Maj. to coverage. See insured, strongly suggested it that Op. at 890. While the Majority is correct merely exercising restraint reaching not duty that the to defend is broader than the question coverage prematurely, the of duty indemnify, Peccadillos, to see 27 A.3d it obligation that believed an to defend 265,11 duty the to defend found in Salem (and despite negligible existed a Group was likelihood of expressly based necessari- ly) might coverage recognition being on its that found coverage under the circum lie the Despite case, under facts of that case. stances of that which resemble the Lawver, (holding only question presented, 238 N.W.2d at 521 the somehow im Cf. that "the insurer being is not held to plied grant coverage a appro refusal to in an provide coverage case, a for risk did priate, [that] it factually similar but leaves out contemplate and pre- for which it no received support that lent considerable to Flomeifelt mium”). my reading Group. less restrained of Salem Therein, observed, regarding the court New noted, law, Peccadillos, Jersey supra, 11. As that “[i]n somewhat situations in which mul events, reinforcing covered, Eichelberger’s guiding principle, tiple one which of is occur Court, banc, sitting this sequentially en found that the pro in a of chain causation to loss, insurer owed a to a defense bar some where adopted approach duce we have the clearly policy's claims fell the rule,' within alcohol 'Appleman’s pursuant known as to exclusion but at one least claim—that the bar which the loss if a is covered covered cause improperly ejected patron an intoxicated sequence leading starts or ends the of events when it knew or have should known that he (citing, to the loss.” 997 A.2d at 1000 inter would expressly alia, drive—was not included ex- Acceptance Corp. Auto Lenders v. Gentili by policy. cluded the Ford, Inc., ni 181 N.J. (2004) (quoting Appleman, Law Insurance Majority upon (1970))). § 12. The & Practice relies v. Car 3083 at 309-11 Under Flomerfelt diello, stated, 202 N.J. rule it likely to as seems more than proposition Group, reinforce Jersey Salem that New would court find finding only duty defend judice. when that was under facts sub appellants’ far fatal judice The weakness sub facts and circumstances in its contention for lies failure any other case cited closely than more acknowledge one the elements es- Majority. byor herein recovery negligent entrust- sential Majority’s short, I find the learned negligent operation of the ment —the alone to case on that basis of this dismissal motor vehicle.... Majority’s herring. entire a red The be wording exclusionary plain The including that Group, Salem response to deficiency provision reveals this Par- upon of and reliance case’s discussion liability (apart rationale. While as the distinс- tridge, dispositive is to treat coverage) negligent is entrustment in- whether an determining between tion not conditioned the entrustor’s coverage to an owes a defense or surer vehicle, ownership negli- or use actually provide This does not insured. gent by use the one to whom is en- Group’s of Salem sound- any assessment recovery. trusted is essential It is between ness its distinction concurrence of these ele- dual claims from those supervision/entrustment negligent entrustment ments — causes, independent one cov- in which two of the instrumen- owner custodian excluded, If injury. lead to and one ered tality plus its use found, would, I Group Salem missing in ra- entrustee —that may change the outcome distinction upholding of those tionale cases cov- defend, also duty then it context erage. literally, Taken this line [under] principle found distinction reasoning negligent entrust- —that case, change appropriate in an also might, use, not its ment Majority coverage. as to the outcome alleged liability— basis insured’s weight freights distinction with more injured party recover could absent it can than bear. incompetent that any showing event, Group, Par- any In Salem like whom vehicle entrusted caused un- tridge, merely provides guidance; it is injury by his use of the necessary result in this to reach the same observed, already As we have vehicle. (with respect rather than case comport this does not the elements with defense). Eichelberger and Wilcha suffice concept, tort up negli- that make this a case require recognize us to gent entrustment. or su- hinging upon entrustment Wilcha, (quoting A.2d at Erie legally a circumstance pervision presents Ins. Ins. Exch. v. Transam. in are a case which the claims distinct from Pa.Super. upon cause that antecedent to or based grounds, 516 Pa. reversed on other with, of, independent sub- concurrent (1987)) added). (emphasis 533 A.2d 1363 sequent that link that cause to events short, scope own In Wilcha limited its injury. ultimate I upon very distinction that based itself, Wilcha, recognize preserving Eichelberger sup- In this lends would regard, applying it in this case.13 my view: port This, turn, minimum, expressly excludes and entrustment claims. 13. At Wilcha sion (and criticism) its cases application ambit without highlights Majority's that the do intertwin- not feature the substantive expand scope expense its at the Wilcha would negli- ing underlying of the vehicle and the Eichelberger. gence supervi- claim that is characteristic of case, no element the claim this find reasonably exclusion issue negligently provided that Ross asserting may be read to exclude only in inherently decedent alcohol to Wolfe’s re- cases where the use of automobile was of a motor quired the involvement tort, intrinsic to the asserted rather than liability. Rather, required to result in serving an as independent cause of the arising from only provision harm injury. my so doing, views are in har- might alcohol. Decedent have fallen from mony with the application restrained flight down a window or of stairs. He Partridge ventured in Eichelberger —that might have walked front of speeding apply the exclusion does not because it is of the asleep traffic in front house or fallen ambiguous. And, tub. perhaps a full bath most Eichelberger, Partridge, and Salem relevantly, might injured Decedent have Group, their assessments of what con- operating himself in an accident while his stitutes tort independent requires leaving own vehicle after house. Ross’s coverage notwithstanding operatiоn equal, any All things being of those scenar- automobile, use of an more closely align may ios resulted in coverage, provid- have with the relevant facts instant case ed in ques- that the instrument or vehicle Wilcha, Filachek, do than belong tion beggars did not Ross. It other cases relied Majority. materially belief that a identical scenario Consequently, I find that would the vehicle require coverage would not as a —-and exclusion applied to this case is practical matter cases in which the de- ambiguous, and must be construed in favor fendant is insolvent or judg- otherwise I respectfully the insured. dissent. ment-proof, present the risk of little or no injured recovery by the plaintiff simply—

by virtue of which instrumentality connect-

ed- injury. Decedent’s inebriation to the Group,

See Salem 607 A.2d at 139-40 potential

(finding similar anomalies of cov-

erage at odds the insured’s reason- Timothy CRISWELL, Executor of the expectations).

able Criswell, Dec’d, Estate of Earl J. clear, To be the automobile exclusion at Appellant issue reasonably case can be read to preclude coverage in However, this case. ambiguous clause is when another rea- ATLANTIC RICHFIELD COMPANY ‍‌‌‌‌‌‌‌‌​​‌‌​‌‌​‌​​​​‌​‌​‌‌‌‌​​‌‌‌​​‌​​‌‌​​​‌​‌​‍sonable reading contrary leads to a result. (R Sunoco, M), Inc. & Exch., 371, Erie

Adamitis v. Ins. 54 A.3d Appellees. (Pa.Super.2012) (quoting Kropa v. Ford, (Pa.Su- Gateway Superior Pennsylvania. Court of (“The per.2009)) provisions of an insurance Argued March 2015. ambiguous contract are if its terms are Filed May 2015. subject to than more one reasonable inter- pretation applied when to a particular set facts.”).14 As in I Eichelberger, would Constr. Harleysville Madison Co. v. provision Mut. regard tion exclusion Cf. Ins., (1999) 557 Pa. phrase requires merely "whether the a causal J., (Cappy, dissenting) (i.e., (finding ambiguity relationship relationship), a ‘but for’ phrase "arising pollu- out of” in a proximate relationship”). as used cause notes "[a]ll dressed this dissent for all relevant against negligence tions sounded [Ross] purposes, language scope identical and and furnishing arose from the of alcohol to the motor vehicle exclusion at issue in this Maj. Op. minor.” at 883. case. noted, 2. Unless may otherwise as- reader sume that all motor vehicle exclusions ad- (en banc), reasoning “sound” and “con- where we called this (Pa.Super.1986) duty insurer had no Pennsylvania recent held sistent with more claim negligent entrustment Wilcha, defend jurisprudence.” 887 A.2d at casualty under a against employer an an contained exclusion policy [that] ultimately This concluded Wil- Court mainte- injury arising from personal had cha that the homeowner’s insurer no operated of an nance or use automobile on claims for duty defend the Wilchas of his employee course an supervision en- negligent and Pulleyn, we reasoned employment. ambiguity found no trustment. We it was not the entrust- exclusionary language. Since the the vehicle that caused ment of injuries arose from minor’s use injuries, but rather the use plaintiffs bike, the motor vehicle exclusion employee that caused dirt the vehicle the harm. was applicable. critical in was also Mo This distinction (citations modified). Op. Maj. at 887 Kulp, v. Insurance Co. torists Mutual (E.D.Pa.1988), a deci F.Supp. Majority length next discusses an to be per sion the Wilcha Court found opinion in unpublished federal Allstate case, In that a minor sustained suasive. Filachek, Property Casualty Co. riding a mini-bike furnished injury while 10-3634, 2011 WL Civ. No. adjacent by his aunt and uncle [an] (E.D.Pa. 2011) May (unpublished). See parents asserted claims property. His case, which, Maj. Op. at 888-89. entrust negligent supervision Kulp, persuasive has more than like no uncle, against the aunt ment Court,3 in value for this the defendant in turn submitted the claims they sured, Filachek, evening spent drinking The home their homeowner’s carrier. Maher, his also a defen friend named

Case Details

Case Name: Wolfe, T. v. Ross, R.

Court Name: Superior Court of Pennsylvania

Date Published: May 7, 2015

Citation: 115 A.3d 880

Docket Number: 1048 WDA 2012

Court Abbreviation: Pa. Super. Ct.