{ "id": 11918015, "name": "NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Plaintiff-Appellant v. DANIEL M. JOHNSON, and BARBARA CARPENTER, Administratrix of the Estate of DANIEL A. HIMES, Defendants-Appellees", "name_abbreviation": "Nationwide Mutual Fire Insurance v. Johnson", "decision_date": "1996-02-06", "docket_number": "No. COA95-292", "first_page": "477", "last_page": "483", "citations": [ { "type": "official", "cite": "121 N.C. App. 477" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "48 ALR3d 1096", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "157 N.E.2d 793", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1959, "pin_cites": [ { "page": "795" }, { "page": "795" }, { "page": "795" }, { "page": "796" } ], "opinion_index": 0 }, { "cite": "21 Ill. App.2d 343", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5198881 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/ill-app-2d/21/0343-01" ] }, { "cite": "461 S.E.2d 759", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "341 N.C. 420", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793057, 793097, 793238, 793177, 793055 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/341/0420-04", "/nc/341/0420-05", "/nc/341/0420-02", "/nc/341/0420-03", "/nc/341/0420-01" ] }, { "cite": "455 S.E.2d 892", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1995, "pin_cites": [ { "page": "895" }, { "page": "896" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 494", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11919346 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc-app/118/0494-01" ] }, { "cite": "350 S.E.2d 66", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1986, "pin_cites": [ { "page": "71" }, { "page": "74" }, { "page": "70" }, { "page": "72" }, { "page": "73" }, { "page": "74" } ], "opinion_index": 0 }, { "cite": "318 N.C. 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732740 ], "year": 1986, "pin_cites": [ { "page": "542-543" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0534-01" ] }, { "cite": "376 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "427" } ], "opinion_index": 0 }, { "cite": "324 N.C. 63", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2488503 ], "year": 1989, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0063-01" ] }, { "cite": "414 S.E.2d 339", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "342" } ], "opinion_index": 0 }, { "cite": "331 N.C. 57", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2500046 ], "year": 1992, "pin_cites": [ { "page": "63" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0057-01" ] }, { "cite": "329 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "353" } ], "opinion_index": 0 }, { "cite": "313 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4725743 ], "year": 1985, "pin_cites": [ { "page": "491" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0488-01" ] }, { "cite": "454 S.E.2d 648", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "339 N.C. 737", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556426, 2559318, 2557847, 2557592, 2559291 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/339/0737-03", "/nc/339/0737-05", "/nc/339/0737-04", "/nc/339/0737-01", "/nc/339/0737-02" ] }, { "cite": "449 S.E.2d 240", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "242" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 663", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525419 ], "year": 1994, "pin_cites": [ { "page": "665" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0663-01" ] } ], "analysis": { "cardinality": 666, "char_count": 13679, "ocr_confidence": 0.75, "pagerank": { "raw": 6.209090076293649e-08, "percentile": 0.3843631424071442 }, "sha256": "4603c92937cb9603300545ae37398fdb7012a62c1fb284fa7c386f2d3dc567e9", "simhash": "1:3020c648e7ecc870", "word_count": 2241 }, "last_updated": "2023-07-14T20:54:48.563497+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and SMITH concur." ], "parties": [ "NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Plaintiff-Appellant v. DANIEL M. JOHNSON, and BARBARA CARPENTER, Administratrix of the Estate of DANIEL A. HIMES, Defendants-Appellees" ], "opinions": [ { "text": "WALKER, Judge.\nOn 28 October 1993 plaintiff Nationwide Mutual Fire Insurance Company (Nationwide) commenced this action to determine the rights of the parties under a homeowner\u2019s policy. Specifically, Nationwide seeks a declaration that it has no obligation under the policy for any claims brought by decedent\u2019s estate arising from the accident which occurred on the property of defendant Johnson.\nOn 15 September 1992 the decedent, a part-time employee of Johnson\u2019s painting company, called Johnson to see if there was any work available. After Johnson explained that there was no work to be done, decedent replied, \u201cWell, come on up and get me, we\u2019ll do something another [sic].\u201d Johnson then picked up the decedent and they went to a repair shop to see Johnson\u2019s newly purchased 1971 GMC truck which was equipped with a boom and cherry-picker. Later, Johnson\u2019s son drove the truck home and parked it under the power line.\nTwo employees were pitching horseshoes when they returned from the repair shop. The decedent climbed into the basket and began operating the boom and cherry-picker. Johnson testified that he thought the decedent was aware of the power line because he had been to Johnson\u2019s property before and the decedent reassured him that he knew what he was doing. While Johnson was inside answering a telephone call, the decedent raised the boom and cherry-picker, came in contact with a live wire, and was electrocuted.\nPrior to the accident, Johnson secured a contract to paint a bridge. For the purpose of painting this bridge, Johnson purchased a 1971 GMC truck on 4 September 1992 which had a boom and cherry-picker permanently affixed to it. The cherry-picker was fueled by the truck\u2019s main gasoline tank but operated by its own motor which was bolted in the bed of the truck. Two sets of controls could be used to raise and lower the cherry-picker \u2014 one set was bolted to the back of the truck, the other set was located inside the bucket.\nOn the date of the accident, the truck was not registered with the Department of Motor Vehicles nor covered by motor vehicle insurance. Prior to the accident, the truck had only been driven from the repair shop to Johnson\u2019s home. When the accident occurred the truck was stationary and the truck\u2019s motor was not running.\nNationwide\u2019s sole argument on appeal is that the trial court erred in granting defendants\u2019 motion for summary judgment. Specifically, Nationwide argues that coverage for the accident is excluded under the \u201cmotor vehicle\u201d and \u201cbusiness pursuits\u201d provisions in Johnson\u2019s homeowner\u2019s policy. The policy provides coverage for claims involving bodily injury or property damage against the insured caused by an occurrence. Coverage is excluded for bodily injury or property damage arising out of the business pursuits of an insured as well as the following:\n1. Coverage E \u2014 Personal Liability and Coverage F \u2014 Medical Payments to Others do not apply to bodily iniurv or property damage:\ne. arising out of:\n(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: (2) the entrustment by an insured of a motor vehicle or any other motorized land conveyance to any person (emphasis added).\nSummary judgment is the device used to render judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law. Davis v. Town of Southern Pines, 116 N.C. App. 663, 665, 449 S.E.2d 240, 242 (1994), disc. review denied, 339 N.C. 737, 454 S.E.2d 648 (1995); N.C. Gen. Stat. \u00a7 1A-1, Rule 56 (1990). The party moving for summary judgment has the burden of showing that there is no triable issue of material fact. Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985). \u201cThe movant may meet this burden by proving that an essential element of the opposing party\u2019s claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim. ...\u201d Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992). All inferences of fact at the summary judgment hearing must be drawn against the moving party and in favor of the party opposing the motion. Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989).\nI.\nPlaintiff first argues that it is entitled to summary judgment because the evidence establishes that the claim by decedent\u2019s estate arises out of \u201cthe ownership, maintenance, use, loading, or unloading of the truck, as well as the entrustment of the truck\u201d and therefore coverage is excluded. We disagree.\nThe crucial issue in this case turns on a determination of the meaning given to the language \u201carising out of the use\u201d in the homeowner\u2019s policy exclusion. In construing the provisions of an insurance contract, \u201c[exclusionary clauses are interpreted narrowly while coverage clauses are interpreted broadly to provide the greatest possible protection to the insured.\u201d State Capital Ins. Co. v. Nationwide Mutual Ins. Co., 318 N.C. 534, 542-543, 350 S.E.2d 66, 71 (1986).\nIn State Capital, the Supreme Court interpreted a similar homeowner\u2019s exclusion provision. The Court held that the homeowner\u2019s policy afforded coverage for injuries incurred when a rifle stored behind the seat of the truck discharged when the insured attempted to remove it from the vehicle. Id. at 547, 350 S.E.2d at 74. In reaching its decision, the Court relied on the rule of construction \u201cthat all ambiguities in exclusion provisions are construed against the insurer and in favor of coverage.\u201d Id. at 541, 350 S.E.2d at 70. The Court then noted that \u201cthere can be little doubt that the terms \u2018use\u2019 and \u2018loading and unloading\u2019 are ambiguous....\u201d Id. at 544, 350 S.E.2d at 72. In construing the policy at issue, the Court applied the following two principles:\n(1) ambiguous terms and staudards of causation in exclusion provisions of homeowners policies must be strictly construed against the insurer, and (2) homeowners policies provide coverage for injuries so long as a non-excluded cause is either the sole or concurrent cause of the injury giving rise to liability. Stating the second principle in reverse, the sources of liability which are excluded from homeowners policy coverage must be the sole cause of the injury in order to exclude coverage under the policy.\nId. at 546, 350 S.E.2d at 73.\nThe Court concluded that \u201cwhen strictly construed the standard of causation applicable to the ambiguous \u2018arising out of language in a homeowners policy exclusion is one of proximate cause.\u201d Id. at 547, 350 S.E.2d at 74. The Court found that the negligent mishandling of the rifle was a non-vehicle proximate cause for which coverage was afforded. Id.\nIn a similar case, Nationwide Mutual Ins. Co. v. Davis, 118 N.C. App. 494, 455 S.E.2d 892, disc. review denied, 341 N.C. 420, 461 S.E.2d 759 (1995), a child exited the insured\u2019s van and was struck by a truck while walking into a store. The homeowner\u2019s policy, like that in the present case, excluded coverage for injuries arising out of the use of a vehicle. Id. at 498-499, 455 S.E.2d at 895. This Court allowed coverage under the policy finding that the use of the van was not the sole proximate cause of the accident; a concurrent cause was Ms. Davis\u2019 negligent supervision of the child when she exited the van to enter the store. Id. at 501, 455 S.E.2d at 896. Thus, the Court concluded that since there was a non-vehicle proximate cause, the vehicle exclusion did not bar coverage under the homeowner\u2019s policy. Id.\nPlaintiff cites Hardware Mut. Casualty Co. v. Curry, 21 Ill. App.2d 343, 157 N.E.2d 793 (1959) as support for its argument that coverage for the injuries in this case is excluded by the vehicle exclusion. We find this case distinguishable. In Curry, the claimant was injured while operating a winch attached to a truck. Id. at 346, 157 N.E.2d at 795. The homeowner\u2019s policy excluded coverage for injuries arising out of the \u201cownership, maintenance or use, including loading and unloading of (i) automobiles. . . .\u201d Id. at 345, 157 N.E.2d at 795. However, unlike the present case, the policy defined automobile as \u201ca land motor vehicle, trailer or semitrailer, providing the following described equipment shall not be deemed an automobile except while towed by or carried on a motor vehicle not so described: any farm implement, ditch or trench digger, power crane or shovel. . . .\u201d Id. at 346, 157 N.E.2d at 795. Therefore, the winch when operated as a crane was expressly defined as a motor vehicle under the policy. Id. at 348, 157 N.E.2d at 796.\nHere, the accident occurred while the decedent was operating a boom and cherry-picker. Johnson\u2019s homeowner\u2019s policy excludes coverage for accidents arising out of the use of a motor vehicle but does not exclude coverage for accidents arising out of the operation of equipment. The policy does not define \u201cmotor vehicle\u201d to include equipment such as a boom and cherry-picker. Accordingly, where the evidence shows that at the time of the accident the truck was stationary, its motor was not engaged, and the boom and cherry-picker was operated independently of the truck, we find that the use of the equipment was a non-vehicle proximate cause of the decedent\u2019s death. Therefore, the insurer did not exclude coverage for this kind of equipment and we conclude that coverage for this accident is not barred by the vehicle exclusion.\nII.\nNext, we address plaintiff\u2019s argument that summary judgment was improper because coverage is excluded under the \u201cbusiness pursuits\u201d provision of the policy. The business pursuits exclusion in pertinent part provides:\n1. Coverage E \u2014 Personal Liability and Coverage F \u2014 Medical Payments to Others do not apply to bodily iniurv or property damage:\nb.(l) arising out of or in connection with a business engaged in by an insured. This exclusion applies but is not limited to an act or omission, regardless of its nature or circumstance, involving a service or duty rendered, promised, owed, or implied to be provided because of the nature of the business.\nThe record shows that on the date of the accident there was no work to be performed. Decedent and the other employees were not receiving remuneration in any form. Also, Johnson explained that the employees often congregated at his house and engaged in leisure activities when there was no work available. Furthermore, there is no evidence to indicate that the decedent was training since he represented to Johnson that he knew how to operate a cherry-picker. Therefore, the record is void of any evidence indicating that the accident on 15 September arose out of business pursuits. Accordingly, we find that the policy affords coverage in this case and we affirm the trial court\u2019s granting of summary judgment in favor of defendants.\nAffirmed.\nJudges JOHNSON and SMITH concur.", "type": "majority", "author": "WALKER, Judge." } ], "attorneys": [ "Bailey & Dixon, L.L.P., by David S. Coats, for plaintiff - appellant.", "Holmes & McLaurin, by Edward S. Holmes, for defendant-appellee Daniel M. Johnson.", "Ervin, Gates & Kelso, by Winfred R. Ervin, Jr., for defendant-appellee Barbara Carpenter." ], "corrections": "", "head_matter": "NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Plaintiff-Appellant v. DANIEL M. JOHNSON, and BARBARA CARPENTER, Administratrix of the Estate of DANIEL A. HIMES, Defendants-Appellees\nNo. COA95-292\n(Filed 6 February 1996)\n1. Insurance \u00a7 822 (NCI4th)\u2014 decedent electrocuted while operating cherry picker \u2014 coverage under homeowner\u2019s policy \u2014 coverage not barred by vehicle exclusion\nCoverage for the accident in this case was not barred by the vehicle exclusion in the homeowner\u2019s insurance policy provided by plaintiff where decedent was killed when he raised the boom and cherry picker on a truck owned by the insured at the insured\u2019s home and came into contact with electrical wires; the policy excluded coverage for accidents arising out of the use of a motor vehicle, but did not exclude coverage for accidents arising out of the operation of equipment; the policy did not define motor vehicle to include equipment such as a boom and cherry picker; at the time of the accident the truck was stationary, and its motor was not engaged; the boom and cherry picker were operated independently of the truck; and the use of the equipment was a non-vehicle proximate cause of decedent\u2019s death.\nAm Jur 2d, Insurance \u00a7\u00a7 1504 et seq.\n2. Insurance \u00a7 819 (NCI4th)\u2014 decedent electrocuted at employer\u2019s home \u2014 coverage not excluded under \u201cbusiness pursuits\u201d provision\nThe \u201cbusiness pursuits\u201d provision of a homeowner\u2019s policy did not exclude coverage for an accident which occurred when decedent was electrocuted while operating a boom and cherry picker attached to the insured\u2019s truck since the accident occurred at insured\u2019s home on a day when there was no work to be performed; decedent and the insured\u2019s other employees were not receiving remuneration in any form; employees often congregated at the homeowner\u2019s home and engaged in leisure activities when there was no work available; and there was no evidence to indicate that decedent was training since he represented to the insured that he knew how to use the equipment.\nAm Jur 2d, Insurance \u00a7\u00a7 1504 et seq.\nConstruction and application of \u201cbusiness pursuits\u201d exclusion provision in general liability policy. 48 ALR3d 1096.\nAppeal by plaintiff from order entered 16 December 1994 by Judge Henry A. Hight, Jr. in Wake County Superior Court. Heard in the Court of Appeals 6 December 1995.\nBailey & Dixon, L.L.P., by David S. Coats, for plaintiff - appellant.\nHolmes & McLaurin, by Edward S. Holmes, for defendant-appellee Daniel M. Johnson.\nErvin, Gates & Kelso, by Winfred R. Ervin, Jr., for defendant-appellee Barbara Carpenter." }, "file_name": "0477-01", "first_page_order": 511, "last_page_order": 517 }