Marquis v. State Farm Fire and Casualty Co.6/5/1998
t wording, the majority has relied on our long-time rules of construction that where an insurer desires to limit or restrict coverage, it must use clear and unambiguous language to do so. As such, it is a reasonable argument that when the insurer failed to utilize the same wording in its exclusion in the contractor's policy as it did in the homeowner's policy, it was bound by the difference of its draftsmanship. Additionally, the majority continues the "theory of liability" argument of Upland Mutual Insurance, Inc. v. Noel, 214 Kan. 145, 519 P.2d 737 (1974), rather than looking to the facts underlying the cause of injury in determining liability under the contractor's policy.
I would not, however, decide this case so easily, for even if "hiring, retention, and supervision" had been included in the contractor's general liability exclusions, inventive counsel would then claim other failures of employer responsibility in an attempt to continue the Upland holding, allowing the legal theory of liability which has been alleged, rather than the factual cause of the injury, to govern the issue of whether coverage exists in Kansas. See Upland, 214 Kan. 145.
When this court decided Upland 24 years ago, there was support around the United States for the result we reached. We cited cases from New Jersey, New York, Minnesota, and Michigan that reached the same result, while we distinguished a case from Connecticut and those that relied on it on the ground that they were not negligent entrustment cases, but respondeat superior cases in which the negligence of the owner depended directly on the negligence of the driver. See 214 Kan. at 150-51.
While Upland may be the Kansas rule, there is considerable question that it should continue to be followed. When it was decided we relied on Shelby Ins. Co. v. U.S. Fire Ins., 12 Mich. App. 145, 162 N.W.2d 676 (1968); Republic Vanguard Ins. Co. v. Buehl, 295 Minn. 327, 204 N.W.2d 426 (1973); McDonald v. Home Ins. Co., 97 N.J. Super. 501, 235 A.2d 480 (1967); and Lalomia v. Bankers & Shippers Insurance Company, 35 App. Div. 2d 114, 312 N.Y.S.2d 1018 (1970). Since this court's opinion, these cases have not fared well. McDonald has been distinguished almost out of existence by Williamson v. Continental Cas. Co., 201 N.J. Super. 95, 492 A.2d 1028 (1985) (holding McDonald applicable only where persons sued were not owners of car or insured under policy). New York courts have limited Lalomia to those cases involving homeowner's insurance. See Monarch Ins. Co. v. Hetherly, 148 Misc. 2d 594, 597-99, 560 N.Y.S.2d 745 (1991), aff'd 182 App. Div. 2d 1138, 586 N.Y.S.2d 764 (1992). Similarly, Republic Vanguard has been distinguished on the language of the exclusion used in that case and held not to apply where the exclusion was for accidents "arising from the use of a motor vehicle." See Faber v. Roelofs, 311 Minn. 428, 435, 250 N.W.2d 817 (1977). Even Shelby Ins. Co. has been distinguished on the grounds that it was never really a negligent entrustment case, and Michigan now follows the rule that the actual cause of accident rather than the theory of liability governs coverage. See Mich. Mut. Ins. Co. v. Sunstrum, 111 Mich. App. 98, 102-105, 315 N.W.2d 154 (1981).
Also, since our decision in Upland, the overwhelming majority of other jurisdictions have held that the negligent entrustment of an automobile which results in an accident falls under an insurance policy exclusion for accidents arising out of the use of an automobile. See Cooter v. State Farm Fire & Cas. Co., 344 So. 2d 496 (Ala. 1977); Lumbermens Mut. Cas. Co. v. Kosies, 124 Ariz. 136, 602 P.2d 517 (1979); Safeco Ins. Co. v. Gilstrap, 141 Cal. App. 3d 524, 190 Cal. Rptr. 425 (1983); Norther
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