Paul D. Harrison, Plaintiff/Appellant, v. Michael A. Tomes, Defendant, and State Automobile Mutual Insurance Company, Garnishee/Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Paul D. Harrison, Plaintiff/Appellant, v. Michael A. Tomes, Defendant, and State Automobile Mutual Insurance Company, Garnishee/Respondent. Case Number: No. 71020 Handdown Date: 06/10/1997 Appeal From: Circuit Court of St. Louis County, Hon. Bernhardt C. Drumm, Jr. Counsel for Appellant: Counsel for Respondent: Opinion Summary: Plaintiff, Paul Harrison, appeals from the trial court's judgment granting State Automobile Mutual Insurance Company's motion to dismiss a garnishment action. The garnishment action arose because of an automobile accident in which Harrison, Michael Tomes and a third individual were riding as passengers in a truck operated by Jami Lauderdale. Tomes reached over and grabbed the steering wheel, causing Lauderdale to lose control. Tomes is an insured under a homeowner's policy issued by State Auto to Tomes' aunt. CASE TRANSFERRED TO THE SUPREME COURT. Division Two holds: There are two exclusions in the homeowner's policy pertinent to this appeal. The exclusion for bodily injury "expected or intended by the insured" clearly does not apply. The second exclusion, an automobile exclusion, applies only if Tomes' actions arose out of both the "use" and the "operation" of the vehicle. Clearly, Tomes was "using" the vehicle when the accident occurred. However, we do not believe that his actions constituted "operation" of the vehicle. Because this conclusion is contrary to the conclusion of the Southern District in Gibbs v. National General Insurance, 938 S.W.2d 600 (Mo.App. 1997), we transfer to the Supreme Court for reexamination of the existing law.

Citation: Opinion Author: GERALD M. SMITH, Judge Opinion Vote: Crane, Presiding Judge, concurs. Pudlowski, Judge, concurs in result. Opinion:

Plaintiff, Paul Harrison, appeals from the trial court's judgment granting State Automobile Mutual Insurance Company's motion to dismiss a garnishment action. We transfer to the Supreme Court. The motion to dismiss was submitted to the court on a joint stipulation of facts. In November 1992, plaintiff, Paul Harrison, defendant, Michael Tomes, and a third person were riding as front seat passengers in a truck operated by Jami Lauderdale. Both plaintiff and Tomes had consumed alcohol prior to the accident here involved. While Lauderdale was driving, Tomes reached over and jerked on the steering wheel causing Lauderdale to lose control. The truck left the highway and turned over. Plaintiff was injured. A lawsuit by plaintiff against Tomes was settled and plaintiff brought this action for garnishment against garnishee, based upon a homeowner's policy issued to Tomes' aunt with whom he was living. The parties agree that Tomes is an insured under that policy. The policy provides for two exclusions which are pertinent to this appeal. SECTION II-EXCLUSIONS

1. Coverage E - Personal Liability and coverage F -Medical Payments to Others do not apply to bodily

injury or property damage: a. which is expected or intended by the insured; ... e. arising out of: (1) the ownership, maintenance, use, loading or unloading of motor vehicles or all other motorized land conveyances, including trailers, owned or operated by or rented or loaned to an insured; The parties agree that if neither of these exclusions apply the policy affords coverage for Tomes and the garnishment properly lies. It is clear under Missouri law that the exclusion for bodily injury "expected or intended by the insured" does not

apply. In American Family Mutual Insurance Company v. Pacchetti, 808 S.W.2d 369 (Mo.banc 1991)[l.c. 371] the court held that to invoke the exclusion the insurer must show not only that the insured intended the acts causing the injury, but that injury itself was intended or expected from these acts. It may be conceded that Tomes' action in grabbing the steering wheel was intentional and reckless, but the record does not establish that he intended or expected that injury would result. The second exclusion requires that the personal liability arises out of the ownership or use of a motor vehicle owned or operated by an insured. Since Tomes did not own the vehicle, this exclusion applies if his actions arose out of both the "use" and the "operation" of the vehicle. "Use" of a motor vehicle is a broad term which includes riding in the vehicle. Francis-Newell v. Prudential Insurance Company of America, 841 S.W.2d 812 (Mo.App. 1992) [l.c. 814]. It was Tomes' actions while "using" the vehicle as a passenger which caused the injuries to Harrison. The key issue is whether the vehicle was operated by Tomes, an insured. A split of authority exists as to whether a passenger who suddenly grabs the steering wheel is "operating" the vehicle.

Kansas, Texas, and Illinois have held that a passenger who grabs the steering wheel is "operating" the vehicle. United States Fidelity & Guaranty Company v. Hokanson, 584 P.2d 1264 (Kan.App. 1978)[4]; United States Fire Insurance Company v. United Service Automobile Association, 772 S.W.2d 218 (Tex.App. 1989)[3]; State Farm Mutual Automobile Insurance Company v. Larsen, 18 Ill.Dec. 582, 377 N.E.2d 1218 (Ill.App. 1978)[1]. Minnesota and Oregon have held to the contrary. West Bend Mutual Insurance Company v. Milwaukee Mutual Insurance Company, 384 N.W.2d 877 (Minn. 1986)[2-4]; State Farm Mutual Automobile Insurance Company v. White, 60 Or.App. 666, 655 P.2d 599 (1982)[2,3]. Referring to the White case from Oregon, the West Bend court stated: We think it is generally understood and accepted that a motor vehicle is operated by one person, namely, the person in the driver's seat and at the control[...] If the driver asks his passenger to assist or share in the operation of the vehicle, as, say, by steering the moving automobile while the driver uses both hands to remove a jacket, perhaps it might be said that the driver and the passenger are both "operating" the automobile, albeit imprudently, and consequently, there would be no homeowner's coverage for either the driver or the passenger. Ordinarily, however, a vehicle has only one operator, and, unless a passenger is invited to share in that operation, or circumstances create a plausible justification for the passenger's assisting in the vehicle's operation, the vehicle is not considered to be operated by the passenger. Quite the contrary, as the Oregon court observed, the passenger is deemed to be interfering with the vehicle's operation. (Emphasis supplied) We find the reasoning of the Minnesota court sound and more persuasive than that of the courts of Kansas, Texas, and Illinois. The language used by the court in West Bend to describe "operation" is closely comparable with the language in Francis-Newell v. Prudential Insurance Company, supra, wherein the court distinguished between "use" and "operation" of a motor vehicle. Quoting from Aetna Life & Casualty v. Bulaong, 218 Conn. 51, 588 A.2d 138 (1991), the court stated: ...the "use" of an automobile by an individual involves its employment for some purpose or object of the user while its "operation" by him involves his direction and control of its mechanism as its driver for the purpose of propelling it as a vehicle. It is perfectly clear that an automobile is being used by an individual who is traveling in it

regardless of whether it is being operated by him or by another. Francis-Newell, supra at [l.c. 814]. We believe that the actions of a passenger, intentionally or accidently, in interfering with the operation of a vehicle by the driver is not in common parlance the "operation" of a motor vehicle. This is also reasonable in this case because the purpose of the exclusion in a homeowner's policy is to preclude coverage for personal liability from the operation of a motor vehicle which should be separately insured by the owner or operator. Tomes' action was negligent or reckless but it did not arise from ownership or operation of a vehicle. Were we writing on a clean slate we would hold that Tomes was not operating the vehicle and the exclusion does not apply. We would therefore reverse the trial court.

However, we are not writing on a clean slate. The Southern District of this court was confronted with a nearly identical fact situation in Gibbs v. National General Insurance Co., 938 S.W.2d 600 (Mo.App. 1997). The court there was dealing with an uninsured motorist provision which provided that the insurer would pay damages which an insured "is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury..." The court held that the passenger who suddenly grabbed the steering wheel resulting in the accident in which plaintiff was injured was "operating" the vehicle. The court held the injury to the plaintiff was covered by the policy. It is theoretically possible to distinguish Gibbs from this case on the basis that coverage provisions, like in Gibbs, are broadly construed, while exclusions are narrowly construed. We are unable, however, to conclude that a person who engages in exactly the same conduct is an operator for one purpose and not an operator for another, and presumably under some fact scenario could be both in the same case. Our conclusion here is contrary to the conclusion of the Southern District. We transfer the case to the Supreme Court for reexamination of the existing law. Separate Opinion: This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.