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Marquis v. State Farm Fire and Casualty Co.6/5/1998
The premium charged by the CGL insurer reflects the underwriting objective of placing automobile accidents beyond the scope of coverage. These latter risks involve unique hazards to which the general business of the insured is not subject. For that reason, they are generally covered as a special class by an automobile liability policy or, as in this case, a trucker's liability policy." 271 Ill. App. 3d at 726.
See Standard Mutual Ins. Co. v. Bailey, 868 F.2d 893 (7th Cir. 1989), for a lengthy Discussion of the rationale of the majority rule.
We acknowledge that Kansas remains in a minority position with reference to this exclusion. However, as late as 1992, this court had an opportunity to revisit Upland in Catholic Diocese of Dodge City v. Raymer, 251 Kan. 689. We recognized again in Catholic Diocese of Dodge City that the coverage for parents' liability for negligent supervision of their child was sufficient to invoke coverage even though the intentional act of the child in causing damage to a school was excluded from coverage. We held that even though the intentional acts exclusion would exclude coverage of the child's liability, the policy did not exclude coverage for the separate and distinct theory of negligent supervision liability of the parents. In affirming Upland, we held that "unlike other states, Kansas does not look to the underlying cause of the injury to determine coverage, but to the specific theory of liability." 251 Kan. at 697.
While the contractor's policy in this case specifically included negligent entrustment of an automobile, it did not exclude the "well recognized" theory of liability on which coverage is premised in this case. Kansas law recognizes negligent supervision as a separate and distinct theory in addition to theories of negligent hiring and negligent retention. Anspach v. Tomkins Industries, Inc., 817 F. Supp. 1499, 1519-20 (D. Kan. 1993); Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 819 P.2d 587 (1981). Negligent supervision includes not only the duty to supervise but also includes the duty to control persons with whom the defendant has a special relationship including the defendant's employees or persons with dangerous propensities. See Nero v. Kansas State University, 253 Kan. 567, 861 P.2d 768 (1993); J. W. v. State, 253 Kan. 1, 853 P.2d 4 (1993).
The principle expressed in Nero applies with equal force in this case. Theories of negligent supervision or control and negligent hiring or negligent retention of employees are separate and distinct from theories of liability of negligent entrustment. Negligent entrustment occurs when an owner of an automobile allows a third party to drive it while knowing the driver to be incompetent, careless, or reckless. McCart v. Muir, 230 Kan. 618, Syl. 1, 641 P.2d 384 (1982).
At the time the insurance contract was entered into by the parties, the law of Kansas was clearly established. State Farm specifically excluded negligent supervision in its homeowner's policy but did not specifically exclude negligent supervision in the contractor's policy. We agree with the Conclusion of the trial court that coverage was owed. This Conclusion is supported by our decisions in Upland and Catholic Diocese of Dodge City.
Statute of Limitations, Estoppel, and Laches
State Farm also argues that if neither the agreement or the policy is held to bar the plaintiffs' claim for negligent hiring, retention, or supervision, the claim should be barred by the statute of limitations. According to State Farm, since no claim was filed against Sharon Auck in the petition, and the 2-year statute of limitations found in K.S.A. 60-513 ha
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