{
  "id": 6647710,
  "name": "COLUMBIA MUTUAL CASUALTY INSURANCE COMPANY, ET. AL. v. Richard COGER and Kay COGER",
  "name_abbreviation": "Columbia Mutual Casualty Insurance v. Coger",
  "decision_date": "1991-07-03",
  "docket_number": "CA 90-321",
  "first_page": "85",
  "last_page": "88",
  "citations": [
    {
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      "cite": "35 Ark. App. 85"
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      "cite": "811 S.W.2d 345"
    }
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  "court": {
    "name_abbreviation": "Ark. Ct. App.",
    "id": 13370,
    "name": "Arkansas Court of Appeals"
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      "reporter": "Ark.",
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          "page": "328"
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    {
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      "reporter": "Ark. App.",
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      "weight": 2,
      "year": 1983,
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    {
      "cite": "282 Ark. 90",
      "category": "reporters:state",
      "reporter": "Ark.",
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        1740738
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      "year": 1984,
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        "/ark/282/0090-01"
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  "last_updated": "2023-07-14T21:21:33.038957+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Danielson and Rogers, JJ., agree."
    ],
    "parties": [
      "COLUMBIA MUTUAL CASUALTY INSURANCE COMPANY, ET. AL. v. Richard COGER and Kay COGER"
    ],
    "opinions": [
      {
        "text": "James R. Cooper, Judge.\nThe appellees in this chancery case are general partners in a business operated under the trade styles of Ace Hardware and Huntsville Lumber Company. On August 1, 1988, a truck owned by Huntsville Lumber Company and operated by the appellees\u2019 employees was delivering lumber on a State highway when part of the load fell off the truck, landed on the highway, and collided with a van traveling in the opposite direction, resulting in property damage to the van and personal injury to its occupants. The occupants of the van filed a negligence action against the appellees d/b/a Huntsville Lumber Company. At the time of the accident, the appellees\u2019 truck was an insured vehicle under an automobile liability policy issued by State Farm Mutual Automobile Insurance Company. On notification of the accident by the appellees, State Farm provided a defense and paid a portion of their policy limits. The appellees were also covered under a commercial general liability policy issued by the appellant, Columbia Mutual, covering the business premises occupied by the hardware store. The appellees made demand on Columbia, which asserted that the accident was excluded under the terms of its policy. The appellees then filed a declaratory judgment action against Columbia seeking a declaration that the accident was a covered occurrence under Columbia\u2019s policy. The trial court concluded that Columbia was obligated to provide both a defense and coverage under the commercial liability policy. From that decision, comes this appeal.\nThe appellants contend that the trial court erred in concluding that the accident was not excluded under the auto exclusion of Columbia\u2019s commercial liability policy. We agree, and we reverse.\nThe automobile exception in question provided that the insurance did not apply to:\n\u201cBodily injury\u201d or \u201cproperty damage\u201d arising out of the ownership, maintenance, use or entrustment to others of any aircraft, \u201cauto\u201d or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and \u201cloading or unloading.\u201d\n\u201cLoading or unloading\u201d is defined in the policy as follows:\n\u201cLoading or unloading\u201d means the handling of property:\na. After it is moved from the place where it is accepted for movement into or onto an aircraft, watercraft or \u201cauto;\u201d\nb. While it is in or on an aircraft, watercraft or \u201cauto;\u201d to the place where it is finally delivered;\nc. While it is being moved from an aircraft, watercraft or \u201cauto\u201d to the place where it is finally delivered;\nFinally, the policy defines \u201cauto\u201d as:\na land motor vehicle, trailer or semitrailer designed for travel on public roads, including any attached machinery or equipment.\nThe underlying lawsuits filed against the appellees allege negligence in the operation of the vehicle, in securing the load, and in maintenance of the straps used to secure the load. The trial judge concluded that the policy exception was ambiguous, and construed it against the appellant insurer. He found that, although the policy excluded coverage for the alleged negligence in the operation of the vehicle, the policy covered the alleged negligence in the maintenance of the straps used to secure the load, and in securing the load.\nWe hold that the trial judge erred in ruling that the allegations of negligence gave rise to coverage and the duty to defend under the policy. The language in an insurance policy is to be construed in its plain, ordinary, popular sense. CNA Insurance v. McGinnis, 282 Ark. 90, 666 S.W.2d 689 (1984). Resort to rules of construction is unnecessary if the terms of an insurance contract are not ambiguous, and in such cases the policy will not be interpreted to bind the insurer to a risk which it plainly excluded and for which it was not paid. Baskette v. Union Life Insurance Co., 9 Ark. App. 34, 652 S.W.2d 635 (1983). Significantly, the insurer in the case at bar did not limit coverage for injury or damage caused by the operation, maintenance, use, or entrustment of a vehicle, but instead excluded coverage for injuries \u201carising out of\u2019 such operation, maintenance, use or entrustment. This is virtually identical to the exclusionary language at issue in Aetna Casualty & Surety Co. v. American Manufacturers Mutual Insurance Co., 261 Ark. 326, 547 S.W.2d 757 (1977), where a declaratory judgment action was brought to interpret a homeowner\u2019s insurance policy with a recreational motor vehicle exclusion. The underlying action in Aetna was premised on allegations that the homeowner negligently entrusted a minibike to a minor child who injured a person while operating the minibike on a sidewalk. The Supreme Court affirmed the trial court\u2019s finding of no coverage, stating that:\nAetna\u2019s argument that the \u201cnegligent entrustment\u201d, rather than the \u201cuse\u201d of the minibike, is the negligent act ignores the clear language of the exclusionary clause.\nAetna, 261 Ark. at 328. In the case at bar, whether or not the lumber briefly came to rest before being struck by the van, and whether the negligent act was the operation of the vehicle, the securing of the load, or the maintenance of the straps securing the load, the injury and damage clearly arose out of the ownership, maintenance, or use of the truck or attached equipment and was therefore not covered by the policy.\nReversed and dismissed.\nDanielson and Rogers, JJ., agree.",
        "type": "majority",
        "author": "James R. Cooper, Judge."
      }
    ],
    "attorneys": [
      "Davis & Goldie, by: Steven B. Davis-, and Rose Law Firm, A Professional Association, by: Vince Foster, Jr. and Sam P. Strange, Jr., for appellants.",
      "Ball & Mourton, by: Kenneth R. Mourton, for appellees."
    ],
    "corrections": "",
    "head_matter": "COLUMBIA MUTUAL CASUALTY INSURANCE COMPANY, ET. AL. v. Richard COGER and Kay COGER\nCA 90-321\n811 S.W.2d 345\nCourt of Appeals of Arkansas Division II\nOpinion delivered July 3, 1991\n[Rehearing denied August 21, 1991.]\nDavis & Goldie, by: Steven B. Davis-, and Rose Law Firm, A Professional Association, by: Vince Foster, Jr. and Sam P. Strange, Jr., for appellants.\nBall & Mourton, by: Kenneth R. Mourton, for appellees."
  },
  "file_name": "0085-01",
  "first_page_order": 109,
  "last_page_order": 112
}