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Marquis v. State Farm Fire and Casualty Co.6/5/1998
l cause of the injury; and whether it was a use of an automobile. 639 So. 2d at 824. Thus, in a case like Upland, that circuit of the Louisiana Court of Appeals would apply an analysis which looked at the conduct complained of, i.e., the negligent entrustment of an automobile, and hold that it constituted a use of an automobile and was therefore excluded from coverage.
The second case, Worcester Mutual Ins. Co. v. Marnell, 398 Mass. 240, 241, 496 N.E.2d 158 (1986), is somewhat unusual. In Worcester, the plaintiff was injured in a car accident caused by the minor son of the insured, who had become intoxicated at a party given at the insured's home. The plaintiff sued on a negligent supervision theory.
The Worcester case is unusual because Massachusetts is one of the jurisdictions which has held that a policy exclusion such as the one at issue applies where the claim is one for negligent entrustment. See Barnstable County Mutual Fire Ins. Co. v. Lally, 374 Mass. at 606. Nevertheless, the court in Worcester found that the policy exclusion did not apply to the claim for negligent supervision under the unique facts of the case. The court found that the negligent supervision of the insured's son allowed him to become intoxicated and that this intoxication was independent of his use of the vehicle and was therefore not subject to the exception in the policy. As a result, the court found coverage. 398 Mass. at 245-46.
Of these two cases, only Smith seems to support the application of our holding in Upland. While Worcester does focus somewhat on the independent nature of the theory of negligent supervision, it appears to be more a results oriented attempt to find coverage and is questionable in light of other Massachusetts case law.
As can be seen by the above cases, Kansas appears to be completely out of step with all the holdings around the United States with regard to our interpretation of these provisions. The overwhelming majority of states, in determining coverage, look to the underlying cause of the injury rather than the specific theory of liability alleged. The majority viewpoint presents a compelling argument. An insurer contracts with an insured regarding the particular risks it will undertake and the risks it will not assume. To allow an insured to avoid a clear exclusion merely by pleading a theory of liability which is not exempted serves to provide the insured with coverage beyond the policy terms bargained for and agreed upon between the insurer and insured. See Taylor v. American Fire and Cas. Co., 925 P.2d at 1284.
Our holding in Upland is not only contrary to the almost unanimous weight of authority in other jurisdictions, but has also been to some extent disregarded by our own Court of Appeals. See United Services Auto Ass'n v. Morgan, 23 Kan. App. 2d 987, 939 P.2d 959 (1997) (intentional act of insured causally connected to use of car, automobile exclusion of homeowner's policy applies, Upland not mentioned); Newton v. Nicholas, 20 Kan. App. 2d 335, 887 P.2d 1158 (1995) (Upland not mentioned, negligent acts were failure to inspect and secure a water tank on a truck, directly connected to use, no coverage); Farmers Ins. Co. v. Rosen, 17 Kan. App. 2d 468, 839 P.2d 71 (1992) (negligent instruction claimed, Upland distinguished, theory of liability test ignored, no coverage found).
The Upland test and theory has not survived the logic and judgment of other states. It is an unsupportable minority. It needs to be abandoned. It is also confusing and allows coverage beyond that anticipated in the policy. Nevertheless, it was unfortunately reaffirmed in this court as recently as 1992. See Catholic Diocese of Dodge City v. Raymer, 251 Kan.
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