{ "id": 8300827, "name": "BUILDERS MUTUAL INSURANCE COMPANY, Plaintiff v. NORTH MAIN CONSTRUCTION, LTD, GAJENDRA SIROHI, and wife, POONAM SIROHI, Defendants", "name_abbreviation": "Builders Mutual Insurance v. North Main Construction, Ltd.", "decision_date": "2006-02-21", "docket_number": "No. COA04-1717", "first_page": "83", "last_page": "92", "citations": [ { "type": "official", "cite": "176 N.C. App. 83" } ], "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": "617 S.E.2d 113", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633689 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "116", "parenthetical": "citations and internal quotations omitted" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/617/0113-01" ] }, { "cite": "473 S.E.2d 23", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "123 N.C. App. 536", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914195 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc-app/123/0536-01" ] }, { "cite": "455 S.E.2d 892", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1995, "pin_cites": [ { "page": "896" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 494", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11919346 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "501" } ], "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": 4, "year": 1986, "pin_cites": [ { "page": "68" }, { "page": "74" } ], "opinion_index": 0 }, { "cite": "318 N.C. 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732740 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "538" }, { "page": "547" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0534-01" ] }, { "cite": "388 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1990, "pin_cites": [ { "page": "193", "parenthetical": "citations omitted" }, { "parenthetical": "citations omitted" }, { "page": "193" }, { "page": "194" }, { "page": "195" } ], "opinion_index": 0 }, { "cite": "97 N.C. App. 266", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520387 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "269", "parenthetical": "citations omitted" }, { "page": "269" }, { "page": "270" }, { "page": "272" } ], "opinion_index": 0, "case_paths": [ "/nc-app/97/0266-01" ] }, { "cite": "271 S.E.2d 399", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "401" } ], "opinion_index": 0 }, { "cite": "49 N.C. App. 311", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521088 ], "year": 1980, "pin_cites": [ { "page": "314" } ], "opinion_index": 0, "case_paths": [ "/nc-app/49/0311-01" ] }, { "cite": "343 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "191" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 383", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523953 ], "year": 1986, "pin_cites": [ { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0383-01" ] }, { "cite": "172 N.C. App. 441", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8320394 ], "year": 2005, "pin_cites": [ { "page": "444", "parenthetical": "citations and internal quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0441-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-138.7", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "195 S.E.2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "549", "parenthetical": "\"As a general rule, coverage will extend when damage results from more than one cause even though one of the causes is specifically excluded.\" (citations omitted)" } ], "opinion_index": 1 }, { "cite": "283 N.C. 142", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558244 ], "year": 1973, "pin_cites": [ { "page": "150", "parenthetical": "\"As a general rule, coverage will extend when damage results from more than one cause even though one of the causes is specifically excluded.\" (citations omitted)" } ], "opinion_index": 1, "case_paths": [ "/nc/283/0142-01" ] }, { "cite": "172 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "522-23" } ], "opinion_index": 1 }, { "cite": "276 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561396 ], "year": 1970, "pin_cites": [ { "page": "355" } ], "opinion_index": 1, "case_paths": [ "/nc/276/0348-01" ] }, { "cite": "280 S.E.2d 907", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "908" } ], "opinion_index": 1 }, { "cite": "303 N.C. 648", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575090 ], "year": 1981, "pin_cites": [ { "page": "650" } ], "opinion_index": 1, "case_paths": [ "/nc/303/0648-01" ] }, { "cite": "455 S.E.2d 892", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1995, "pin_cites": [ { "page": "896" }, { "page": "893" }, { "page": "893" }, { "page": "895" }, { "page": "895" } ], "opinion_index": 1 }, { "cite": "118 N.C. App. 494", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11919346 ], "year": 1995, "pin_cites": [ { "page": "501" } ], "opinion_index": 1, "case_paths": [ "/nc-app/118/0494-01" ] }, { "cite": "350 S.E.2d 66", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 11, "year": 1986, "pin_cites": [ { "page": "73", "parenthetical": "emphasis added" }, { "page": "73", "parenthetical": "emphasis added" }, { "page": "67" }, { "page": "67-68" }, { "page": "68" }, { "page": "74" }, { "page": "73" } ], "opinion_index": 1 }, { "cite": "318 N.C. 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732740 ], "weight": 4, "year": 1986, "pin_cites": [ { "page": "546", "parenthetical": "emphasis added" }, { "page": "546" }, { "page": "536" }, { "page": "546" } ], "opinion_index": 1, "case_paths": [ "/nc/318/0534-01" ] }, { "cite": "388 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 1990, "pin_cites": [ { "page": "268" }, { "page": "192" }, { "page": "193" }, { "page": "271-72" }, { "page": "194-95" } ], "opinion_index": 1 }, { "cite": "97 N.C. App. 266", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520387 ], "year": 1990, "opinion_index": 1, "case_paths": [ "/nc-app/97/0266-01" ] } ], "analysis": { "cardinality": 820, "char_count": 22321, "ocr_confidence": 0.746, "pagerank": { "raw": 6.848989183728895e-08, "percentile": 0.41756932547032666 }, "sha256": "68b86ea9b496a23dbbfead558eff7eb93a230eec6c8e5faf2402da384b5267c5", "simhash": "1:4163b46ac5df3653", "word_count": 3583 }, "last_updated": "2023-07-14T16:09:49.892129+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge LEVINSON concurs.", "Judge WYNN dissents with separate opinion." ], "parties": [ "BUILDERS MUTUAL INSURANCE COMPANY, Plaintiff v. NORTH MAIN CONSTRUCTION, LTD, GAJENDRA SIROHI, and wife, POONAM SIROHI, Defendants" ], "opinions": [ { "text": "CALABRIA, Judge.\nBuilders Mutual Insurance Company (\u201cplaintiff\u2019) appeals from the trial court\u2019s order granting partial summary judgment in favor of Gajendra and Poonam Sirohi (\u201cSirohi defendants\u201d). We reverse and remand to the trial court for entry of summary judgment in favor of plaintiff.\nPlaintiff is the insurance provider for North Main Construction, Ltd. (\u201cNorth Main\u201d), under two policies, a Commercial Auto Liability Policy and a Commercial Insurance Policy. The only policy at issue in this case is the Commercial Insurance Policy. Plaintiff sought a declaratory judgment in the Wake County Superior Court that it had no duty to defend or indemnify North Main and Ronald F. Exware, Jr. (\u201cExware\u201d) under the Commercial Insurance Policy.\nThe-underlying facts in the case sub judice, as alleged in plaintiff\u2019s complaint for declaratory relief, are as follows:\n9. The specific allegations against the defendants North Main and Exware assert that (a) Exware received a citation for DWI and careless and reckless driving at the time that he became involved in and caused the accident with Poonam Sirohi, (b) Exware\u2019s seven year driving record included several citations and driving convictions, including three speeding charges and a charge of transporting an open container after consuming, under [N.C. Gen. Stat. \u00a7 20-138.7], and (c) North Main allowed Exware to drive the company van despite Exware\u2019s poor driving record.\n10. . . . [T]he plaintiffs specifically allege that North Main was negligent in that (a) North Main knew that its employee, Ronald F. Exware, Jr., was operating one of their vehicles after having received a citation on July 17, 2001 for driving on the wrong side of the road, (b) North Main knew or should have known that Exware\u2019s driving record was extremely poor, to the extent that his operation of a motor vehicle would likely cause great risk and danger to others such as the Plaintiff, (c) although North Main knew or should have known that Exware had a bad driving record, North Main provided a company van to Exware, (d) by ignoring Exware\u2019s bad driving record and in providing Exware a company vehicle despite his bad driving record, North Main failed to exercise due care for its employees [\u2019] safety and for the safety of others traveling upon the public highway such as the plaintiff Poonam Sirohi, (e) failed to enforce a proper policy gov-eming the safe use of its company vehicles, and failed to exercise due care to ensure its employees were safe drivers and failed to exercise due care for the safety of others traveling upon the public highway, and (f) negligently entrusted a vehicle to Exware.\n11. The specific factual allegations in the amended complaint assert (a) employees such as crew chiefs, foremen and officers of North Main, who supervised crews were required to come into the North Main office headquarters from time to time to deliver time sheets and pick up pay checks for their crews, and for other reasons, (b) often while in North Main company headquarters, the crew chiefs, foremen, supervisors and officers of North Main would consume beer and smoke marijuana together and with each other, (c) the senior officers of North Main were aware of the alcohol and marijuana consumption that took place on the company premises both during and after normal working hours, and did nothing to prevent or stop this behavior even though it was known that these individuals would return to work and possibly operate company machinery or equipment, or would leave operating company vehicles, and (d) the conduct, of the officers of North Main in condoning the above described conduct, created an atmosphere of tolerance and acceptance of alcohol and drug use among the employees while working or operating company vehicles, machinery or equipment, and which conduct in turn was likely to lead to incidents causing death or injury to others.\n12. Based on these additional factual allegations, the amended complaint includes additional allegations of negligence on the part of North Main in that North Main was negligent in that it (a) failed to properly hire, supervise, and retain its. employees, (b) participated and condoned conduct by its employees that was likely to lead to death or injury to others, and (c) created and fostered an atmosphere among its employees and officers that the consumption of alcohol and drugs and the use of the company vehicles and equipment was permissible.\nThe Sirohi defendants further alleged that both Exware\u2019s negligence and North Main\u2019s negligence resulted in their injuries when Exware drove while intoxicated, crossed the median on Interstate 40, and struck the Sirohi defendants with North Main\u2019s automobile.\nThe trial court heard plaintiff\u2019s declaratory judgment action on 11 August 2004. Plaintiff made a motion for judgment on the pleadings, which was converted to a motion for summary judgment, and the Sirohi defendants also made a motion for summary judgment. On 19 October 2004, after reviewing the insurance policy at issue, Judge Manning granted plaintiffs motion as to all claims for negligent entrustment and negligent driving; however, he granted the Sirohi defendants\u2019 motion as to negligent hiring, negligent supervision, and negligent retention. Plaintiff appeals.\nThe question presented for our review is whether the trial court properly declared, as a matter of law, that\nplaintiffs commercial general liability policy[,] . . . issued to North Main Construction Company, does provide coverage for the claims asserted by the [Sirohi defendants] against the plaintiffs insured, North Main Construction, in the underlying action . . . and plaintiffs motion for summary judgment as to all claims for negligent hiring, supervision, and/or retention is DENIED, and [the Sirohi defendants\u2019] motion for summary judgment as to all claims . . . for negligent hiring, supervision, and/or retention is ALLOWED.\nIn accordance with the North Carolina Rules of Civil Procedure, summary judgment shall be granted \u201cif the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2005). In deciding the motion, \u201call inferences of fact . . . must be drawn against the movant and in favor of the party opposing the motion.\u201d Cater v. Barker, 172 N.C. App. 441, 444, 617 S.E.2d 113, 116 (2005) (citations and internal quotations omitted). \u201cThe party moving for summary judgment has the burden of establishing the lack of any triable issue.\u201d Id. (citations omitted).\nA trial court\u2019s ruling on a motion for summary judgment is reviewed de novo by this Court. Va. Elec. & Power Co. v. Tillett, 80 N.C. App. 383, 385, 343 S.E.2d 188, 191 (1986). On appeal, we review materials presented to the trial court and determine whether there is a genuine issue as to any material fact and if any party is entitled to judgment as a matter of law. Oliver v. Roberts, 49 N.C. App. 311, 314, 271 S.E.2d 399, 401 (1980). Plaintiff admits a duty to defend North Main against \u201cany \u2018suit\u2019 seeking damages for \u2018bodily injury\u2019 or \u2018property damage\u2019 to which [the insurance policy at issue] . . . applies].\u201d Because \u201can insurer\u2019s duty to defend the insured is broader than its duty to provide liability coverage,\u201d Wilkins v. American Motorists Insurance Co., 97 N.C. App. 266, 269, 388 S.E.2d 191, 193 (1990) (citations omitted), we need not consider whether the Sirohi defendants will ultimately prevail in the underlying action. Id. This Court has held,\n[t]he duty to defend is determined by the facts as alleged in the pleadings of the lawsuit against the insured; if the pleadings allege any facts which disclose a possibility that the insured\u2019s potential liability is covered under the policy, then the insurer has a duty to defend. If, however, the facts alleged in the pleadings are not even arguably covered by the policy, then no duty to defend exists. Any doubt as to coverage must be resolved in favor of the insured.\nId. (citations omitted).\nIt is uncontested in this case that there are no material issues of fact. We, therefore, limit our analysis to whether the trial court properly determined that the Sirohi defendants were entitled to judgment as a matter of law.\nThe Commercial Insurance Policy excluded from coverage the following:\ng. Aircraft, Auto or Watercraft\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\nWe initially address whether, under precedent regarding the \u201carising out of\u2019 language in similar insurance policy exclusions, the trial court properly granted summary judgment for the defendants on the negligent hiring, supervision, and retention claims. In reviewing the insurance policy at issue, we are mindful of the rule of construction that \u201cprovisions of insurance policies ... which extend coverage must be construed liberally so as to provide coverage whenever possible by reasonable construction.\u201d State Capital Ins. Co. v. Nationwide Mut. Ins. Co., 318 N.C. 534, 538, 350 S.E.2d 66, 68 (1986).\nIn State Capital, our Supreme Court considered whether exclusionary language similar to the language at issue in this case would apply under a homeowner\u2019s insurance policy to prevent coverage when a rifle accidentally discharged in a car while the insured was handling it, causing injury to the passenger. In that case our Supreme Court held, \u201cwhen strictly construed[,] the standard of causation applicable to the ambiguous \u2018arising out of language in a home-ownerf\u2019s] policy exclusion is one of proximate cause.\u201d State Capital, 318 N.C. at 547, 350 S.E.2d at 74. The Court further held that the exclusionary language \u201cshould be interpreted as excluding accidents for which the sole proximate cause involves the use of an automobile. If there is any non-automobile proximate cause, then the automobile use exclusion does not apply.\u201d Id. Because the Court found that negligent mishandling of the rifle was a non-automobile proximate cause of the injury, the automobile use exception did not apply. Id.\nIn Wilkins, this Court distinguished our Supreme Court\u2019s holding in State Capital. Plaintiff argued that the trial court erred in entering summary judgment for the defendant when \u201cthe policy does not clearly exclude coverage for liability based upon failure to warn and negligent instruction.\u201d Wilkins, 97 N.C. App. at 269, 388 S.E.2d at 193. The underlying facts in that case dealt with an airplane crash, and at issue was an airplane exception similar to the automobile exception at issue in the case at hand. This Court held, \u201cthe exclusionary language requires only that the injuries arise out of the ownership, maintenance, or use of an aircraft.\u201d Wilkins, 97 N.C. App. at 270, 388 S.E.2d at 194. Based upon this standard, we held, \u201cThe injuries giving rise to plaintiffs potential liability in this case arose from the use of an aircraft and, therefore, coverage is clearly excluded under the terms of the policy.\u201d Wilkins, 97 N.C. App. at 272, 388 S.E.2d at 195.\nIn Nationwide Mut. Ins. Co. v. Davis, 118 N.C. App. 494, 455 S.E.2d 892 (1995), a woman and her granddaughter were riding in a van. After they reached their destination, the woman safely exited the van, but when the granddaughter exited, she was struck by a vehicle. This Court held,\nthe \u201cuse\u201d of the van was not the sole proximate cause of the accident; a concurrent cause was [the woman\u2019s] negligent supervision of [the granddaughter] when [the granddaughter] exited the van to enter the Superette. Therefore, under State Capital, because there was a \u201cnon-automobile proximate cause\u201d of the accident, the automobile exclusion does not apply to bar coverage under the homeowner\u2019s policy.\nId., 118 N.C. App. at 501, 455 S.E.2d at 896.\nIn Nationwide Mut. Ins. Co. v. Integon Indem. Corp., 123 N.C. App. 536, 473 S.E.2d 23 (1996), this Court considered whether an automobile exception in a homeowner\u2019s policy applied when a man improperly attached a metal livestock trailer to his vehicle, and the trailer came loose, careened across the highway, and resulted in the death of another driver. This Court distinguished Integon from Davis as follows:\nCoverage existed in Davis because the negligent supervision of the child was an act of negligence separate from the use of the vehicle. In this case, however, the defendant Estate\u2019s damages are alleged to have resulted solely from Timothy Ward\u2019s \u201cuse\u201d of the truck in towing the trailer, and not any independent \u201cnonautomotive\u201d cause. His alleged negligence in attaching, securing and towing the trailer could not have caused damages that were independent of the \u201cuse\u201d of the truck itself.\nThe instant case is similar to Integon. Here, the injuries resulted from Exware\u2019s use of North Main\u2019s automobile, not from a separate cause. Although the Sirohi defendants allege negligent hiring, supervision, and retention of Exware, these causes are intertwined with Exware\u2019s use of North Main\u2019s automobile, and the Sirohi defendants\u2019 particular injuries could not have occurred in the absence of the use of the automobile. See Wilkins, supra (standing for the proposition that allegations of failing to properly instruct a pilot did not prevent an airplane exclusion from applying when the injuries suffered were due to an airplane crash).\nIn determining whether an automobile exception applies, this Court looks to the actual causes of a given injury and considers whether a cause separate from the use of a vehicle resulted in those particular injuries. Thus, although the dissent hypothesizes that \u201c[d]ue to North Main\u2019s negligent hiring, supervision, and/or retention an injury could have occurred, for example, through Exware\u2019s use of construction equipment,\u201d we need not consider such hypothetical injuries when the facts show that the actual injuries did not result from a cause separate from the use of the automobile.\nAccordingly, we hold that the trial court erred in granting summary judgment in favor of the Sirohi defendants, and we remand this matter to the trial court for entry of summary judgment in favor of plaintiff.\nHaving so held, we need not address plaintiff\u2019s other assignment of error.\nReversed and remanded.\nJudge LEVINSON concurs.\nJudge WYNN dissents with separate opinion.", "type": "majority", "author": "CALABRIA, Judge." }, { "text": "WYNN, Judge,\ndissenting.\n\u201c[T]he 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.\u201d State Capital Ins. Co. v. Nationwide Mut. Ins. Co., 318 N.C. 534, 546, 350 S.E.2d 66, 73 (1986) (emphasis added). The majority opinion does not dispute that the plain language of the policy did not exclude from coverage the negligent hiring, supervision, and/or retention claims of the Sirohi defendants against Exware and North Main. Since the negligent hiring, supervision, and/or retention is a non-excluded cause, the trial court did not err in granting summary judgment in favor of Defendants. Accordingly, I respectfully dissent.\nIt is well settled that in North Carolina insurance policies are construed strictly against insurance companies and in favor of the insured. Maddox v. Colonial Life & Accident Ins. Co., 303 N.C. 648, 650, 280 S.E.2d 907, 908 (1981). Provisions which exclude liability of insurance companies are not favored. Therefore all ambiguous provisions are strictly construed against the insurer and in favor of the insured. Wachovia Bank & Trust Co. v. Westchester Fire Ins. Co., 276 N.C. 348, 355, 172 S.E.2d 518, 522-23 (1970).\nThe exclusion provision at issue in the general liability policy states:\n2. Exclusions\nThis insurance does not apply to:\n***\ng. Aircraft, Auto Or Watercraft\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.\nOur Supreme Court has previously established the following principle with respect to determining the coverage of homeowners or general \u201call risks\u201d policies: \u201c[T]he 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.\u201d State Capital Ins. Co., 318 N.C. at 546, 350 S.E.2d at 73 (emphasis added); see also Avis v. Hartford Fire Ins. Co., 283 N.C. 142, 150, 195 S.E.2d 545, 549 (1973) (\u201cAs a general rule, coverage will extend when damage results from more than one cause even though one of the causes is specifically excluded.\u201d (citations omitted)).\nIn State Capital, the owner of a pickup truck and a companion went on a hunting trip. 318 N.C. at 536, 350 S.E.2d at 67. The owner stored a rifle behind the seat of his truck because the truck\u2019s gun rack was full. Id. The owner saw a deer and reached for the rifle from outside the truck. Id., 350 S.E.2d at 67-68. The rifle discharged, injuring the owner\u2019s companion as he was exiting the truck. Id., 350 S.E.2d at 68. The Supreme Court held that \u201cthe exclusionary language in the State Capital homeowners policy should be interpreted as excluding accidents for which the sole proximate cause involves the use of an automobile. If there is any non-automobile proximate cause, then the automobile use exclusion does not apply.\u201d Id. at 547, 350 S.E.2d at 74. The Supreme Court found that the \u201cnegligent mishandling of the rifle was a proximate cause of [the companion\u2019s] injury[,]\u201d and therefore the automobile use exclusion would not apply. Id.\nIn Nationwide Mut. Ins. Co. v. Davis, 118 N.C. App. 494, 501, 455 S.E.2d 892, 896 (1995), this Court found State Capital to be controlling. In Davis, the insured and her granddaughter were riding in the insured\u2019s van. Id. at 495, 455 S.E.2d at 893. After they reached their destination, the granddaughter got out of the van, walked around the van, and was struck by another car. Id. at 496, 455 S.E.2d at 893. For the purposes of the insured\u2019s automobile insurance policy, this Court held that the van was \u201cin use\u201d at the time of the accident. Id. at 498, 455 S.E.2d at 895. However, following State Capital, for purposes of the insured\u2019s homeowners policy which had an automobile use exclusion, this Court held that \u201cthe \u2018use\u2019 of the van was not the sole proximate cause of the accident; a concurrent cause was Ms. Davis\u2019 negligent supervision of [her granddaughter.]\u201d Id. at 501, 455 S.E.2d at 895.\nLike in State Capital and Davis, here, the claims of negligent hiring, supervision, and/or retention are non-automobile proximate causes. State Capital, 318 N.C. at 546, 350 S.E.2d at 73. Therefore, since Exware\u2019s use of the automobile is not the sole proximate cause of the Sirohi\u2019s injuries, the claim is not excluded from coverage by the automobile exclusion.\nThe majority relies on this Court\u2019s opinion in Wilkins v. Am. Motorists Ins. Co., 97 N.C. App. 266, 388 S.E.2d 191 (1990), which is distinguishable from the instant case. In Wilkins, an airplane, owned by the plaintiff, crashed killing two people and injuring a third. Id. at 268, 388 S.E.2d at 192. The plaintiff was sued by the survivors alleging, inter alia, that he negligently failed to warn passengers that he damaged the airplane and negligently failed to properly instruct the pilot. Id. The plaintiff\u2019s homeowners policy had an exclusion provision that did not provide coverage for injuries \u201carising out of the ownership, maintenance, use, loading or unloading of: (1) an aircraft[.]\u201d Id., 388 S.E.2d at 193. This Court held that the claims were excluded from policy coverage because the alleged failure to warn of the damage to the airplane and negligent instruction to the pilot, \u201care causes which involve the use of the aircraft and . . . they could cause no injury that was not directly connected to the use of the aircraft.\u201d Id. at 271-72, 388 S.E.2d at 194-95.\nIn this case, the claims of negligent hiring, supervision, and/or retention do not involve the use of the automobile and could cause an injury that is not directly connected to the use of the automobile. See id. Due to North Main\u2019s negligent hiring, supervision, and/or retention an injury could have occurred, for example, through Exware\u2019s use of construction equipment. Therefore, Wilkins is distinguishable from the instant case.\nAccordingly, since the negligent hiring, supervision, and/or retention is a non-automobile proximate cause, the trial court did not err in granting summary judgment in favor of Defendants.", "type": "dissent", "author": "WYNN, Judge," } ], "attorneys": [ "Pinto, Coates, Kyre & Brown, P.L.L.C., by Richard L. Pinto and John I. Malone, Jr., for plaintiff-appellant.", "Pulley, Watson, King & Lischer, P.A., by Guy W. Crabtree, Esq., for defendants-appellees Gajendra Sirohi and Poonam Sirohi." ], "corrections": "", "head_matter": "BUILDERS MUTUAL INSURANCE COMPANY, Plaintiff v. NORTH MAIN CONSTRUCTION, LTD, GAJENDRA SIROHI, and wife, POONAM SIROHI, Defendants\nNo. COA04-1717\n(Filed 21 February 2006)\nInsurance\u2014 commercial liability policy \u2014 automobile exclusion \u2014 applicability to negligent hiring, supervision and retention claims\nThe automobile exclusion in a commercial general liability insurance policy issued to a construction company for bodily injury or property damage \u201carising out of\u2019 the ownership, maintenance, use or entrustment of any automobile applied to exclude coverage for defendants\u2019 claims for negligent hiring, supervision and retention of an employee of the insured who drove a company automobile while intoxicated, crossed the median, and struck the vehicle in which defendants were riding because: (1) in determining whether an automobile exception applies, the appellate court looks to the actual causes of a given injury and considers whether a cause separate from the use of a vehicle resulted in those particular injuries; and (2) defendants\u2019 actual injuries did not result from a cause separate from the employee\u2019s use of the automobile.\nJudge Wynn dissenting.\nAppeal by plaintiff from order entered 19 October 2004 by Judge \u2022 Howard E. Manning, Jr., in Wake County Superior Court. Heard in the Court of Appeals 20 September 2005.\nPinto, Coates, Kyre & Brown, P.L.L.C., by Richard L. Pinto and John I. Malone, Jr., for plaintiff-appellant.\nPulley, Watson, King & Lischer, P.A., by Guy W. Crabtree, Esq., for defendants-appellees Gajendra Sirohi and Poonam Sirohi." }, "file_name": "0083-01", "first_page_order": 115, "last_page_order": 124 }