Marquis v. State Farm Fire and Casualty Co.6/5/1998
n Ins. Co. of New York v. Ekstrom, 784 P.2d 320 (Colo. 1989); Gargano v. Liberty Mut. Ins. Co., 384 So. 2d 220 (Fla. Dist. App. 1980); Pedersen v. Republic Ins. Co., 72 Md. App. 661, 532 A.2d 183 (1987); Barnstable County Mut. Fire Ins. Co. v. Lally, 374 Mass. 602, 373 N.E.2d 966 (1978); Shelter Mut. Ins. Co. v. Politte, 663 S.W.2d 777 (Mo. App. 1983); Pulleyn v. Cavalier Ins. Corp., 351 Pa. Super. 347, 505 A.2d 1016 (1986); Fidelity & Guar. Ins. Underwriters v. McManus, 633 S.W.2d 787 (Tex. 1982); Mutual Service Cas. Ins. Co. v. Koenigs, 110 Wis. 2d 522, 329 N.W.2d 157 (1983).
Similarly, the majority of those courts which have addressed the question of whether a claim of negligent hiring, retention, and supervision fits within the policy exclusions where the accident complained of is an automobile accident, as is the fact situation in the case at hand, have found that the policy exclusion applies. See Alfa Mut. Ins. Co. v. Jones, 555 So. 2d 77 (Ala. 1989); Jones v. Horace Mann Ins. Co., 937 P.2d 1360 (Alaska 1997); National American Ins. Co. v. Coburn, 209 Cal. App. 3d 914, 257 Cal. Rptr. 591 (1989); Cesarini v. American Druggist Ins. Co., 463 So. 2d 451 (Fla. Dist. App. 1985); Allstate Ins. Co. v. Pruitt, 177 Ill. App. 3d 407, 532 N.E.2d 401 (1988); Mahlum v. Baker, 639 So. 2d 820 (La. App. 1994); American Universal Ins. Co. v. Cummings, 475 A.2d 1136 (Me. 1984); Northern Assurance Co. v. EDP Floors, 311 Md. 217, 533 A.2d 682 (1987); Gorzen v. Westfield Ins. Co., 207 Mich. App. 575, 526 N.W.2d 43 (1994); Citizens Sec. Mut. Ins. v. Levinson, 445 N.W. 2d 585 (Minn. App. 1989); Cameron Sod Farms v. Continental Ins. Co., 700 A.2d 290 (N.H. 1997); Daus v. Marble, 270 N.J. Super. 241, 636 A.2d 1091 (1994); Phillips v. Estate of Greenfield, 859 P.2d 1101 (Okla. 1993); Farmers Insurance Group v. Nelsen, 78 Or. App. 213, 715 P.2d 492 (1986); Great Central Ins. Co. v. Roemmich, 291 N.W.2d 772 (S.D. 1980); Taylor v. American Fire and Cas. Co., 925 P.2d 1279 (Utah App. 1996); Bankert v. Threshermen's Mut. Ins. Co., 110 Wis. 2d 469, 329 N.W.2d 150 (1983). The theory of these cases, as stated in American Universal Ins. Co. v. Cummings, is that the motor vehicle exclusion is "not based upon the theory of liability inherent in a claim. Rather, the policy is said to not apply to any claim regardless of the theory of liability when that claim is for bodily injury arising out of operation of any motor vehicle owned by the insured". 475 A.2d at 1137-38.
In only two cases involving automobile accidents have courts found that an exclusion such as the one at issue does not apply to claims of negligent hiring, retention, or supervision. In Smith v. USAA Cas. Ins. Co., 532 So. 2d 1171, 1174 (La. App. 1988), the Louisiana Court of Appeals found that a policy exclusion for the operation of a vehicle is not applicable where the asserted negligence or cause in fact of the injuries is independent of the vehicle's operation. The court noted that Louisiana law applies coverage where the insured's act is a result of negligence independent of the use of the vehicle, even though such use may be concurrent with the use of the vehicle. 532 So. 2d at 1174. Smith, therefore, used an analysis consistent with the one this court employed in Upland, which focuses on the theory of liability rather than the actual cause of the accident.
Even the precedential value of Smith is in doubt. A separate circuit of the Louisiana Court of Appeals expressly declined to follow Smith in Mahlum v. Baker, 639 So. 2d 820. The court in Mahlum stated that in order to determine coverage under an automobile use exception, the two questions that must be answered are: whether the conduct of the insured of which the plaintiff complains was a lega
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