Unpublished Disposition, 904 F.2d 41 (9th Cir. 1990)

MEMORANDUM^* 

The district court granted summary judgment to State Farm Mutual Automobile Insurance Company (State Farm). State Farm had asked the district court to declare that the "use" clause of the auto liability policy State Farm had issued to Steven L. Kelso and Robin A. Kelso (the Kelsos) did not cover them for liability in an accident in which their child, Steven W. Kelso, was struck by an oncoming vehicle after exiting from the Kelsos' automobile. The Kelsos challenge the district court ruling. We hold that the district court erred. We reverse and remand.

BACKGROUND

The Kelsos had liability coverage under an automobile insurance policy issued by State Farm. The policy provided that State Farm would "pay damages which an insured becomes legally liable to pay because of ... bodily injury to others ... caused by accident resulting from ownership, maintenance or use of [the insureds'] ... car." "Use" was not defined.

With the policy in force, Robin Kelso drove the insured family car to a location in Hayden Lake, Idaho, with her two children, Steven W. and Scott, as passengers. They went there to meet Steven L. Kelso. After parking the car on the opposite side of the street from the place of meeting, Robin left the driver's seat and helped Steven from his child restraint seat in the rear seat of the car. While the rear passenger door remained open and Scott waited to be removed from his child restraint seat, Robin inspected the street for traffic, satisfied herself that the way was clear, and then instructed Steven W. to cross the street to his father. After turning again to the rear seat to assist the second child, Robin heard Steven cry out. Immediately afterward, she heard a thumping sound. She turned and discovered that Steven had been hit by an oncoming vehicle. The driver of that vehicle was Dean Elvin Hutchinson.

Thereafter, a suit was filed in Idaho state district court by Kerwin Bennett, on behalf of Steven W., seeking damages from the Kelsos and Hutchinson for injuries sustained by the younger Steven. The Kelsos invoked their State Farm policy and requested defense and indemnification. State Farm agreed to defend the action under a reservation of rights and then filed a complaint for declaratory relief in federal district court under 28 U.S.C. § 1332, Fed. R. Civ. P. 57, and the Federal Declaratory Judgment Act, 28 U.S.C. § 2801. State Farm sought a declaration that the policy did not cover the liability of the Kelsos and that the company had no duty to defend or indemnify them. The district court rendered summary judgment for State Farm. It held that the "use" clause of the policy did not impliedly provide coverage for loading and unloading of the vehicle and that there was no causal relationship between the Kelso vehicle and Steven W.'s injuries.

STANDARD OF REVIEW

A grant of summary judgment is reviewed de novo. Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir. 1989); State Farm Fire and Casualty Co. v. Martin, 872 F.2d 319, 320 (9th Cir. 1989). The appellate court's review is governed by the same standard used by the trial court under Fed. R. Civ. P. 56(c). Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). The appellate court must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir. 1989); Judie v. Hamilton, 872 F.2d 919, 920 (9th Cir. 1989).

DISCUSSION

The district court found that the "use" clause of the policy did not implicitly include loading and unloading. It relied on Viani v. Aetna Ins. Co., 95 Idaho 22, 501 P.2d 706 (1972), ovr'd on other grounds, Sloviaczek v. Estate of Puckett, 98 Idaho 371, 565 P.2d 564 (1977). In Viani, the Supreme Court of Idaho determined whether an express "loading and unloading" clause in an auto liability policy covered damages resulting from the accidental discharge of a firearm contained in luggage being removed from the insured vehicle. In its discussion, the court gratuitously noted that an express provision covering " 'loading and unloading' expand [s] the meaning or scope of what is intended by the term 'use' of the insured automobile." Viani, 95 Idaho at 31, 501 P.2d at 715. Referring to that statement, the district court, in the instant case, expressed the belief that, because the Kelsos' policy did not contain an express provision for loading and unloading, its "use" clause did not encompass loading and unloading of passengers.

The district court's reliance on Viani in this context is misplaced. In Viani, the Idaho Supreme Court was considering the meaning of an express "loading and unloading" clause and was not called upon to rule on the construction of a "use" clause, like the one in the Kelsos' policy, that does not contain such an express provision. Accordingly, Viani is not controlling on this issue.

While one could presumably argue that the "use" clause does not encompass "loading and unloading," a more compelling construction is that use of a passenger car inevitably entails the unloading or discharging of passengers at the conclusion of a journey. Robin Kelso was using her car as cars are intended to be used. She carried her children as passengers. Ultimately, they had to be discharged. Discharging small children unable to leave a car unaided includes assisting them to exit the car.

At the very least, the "use" clause is ambiguous. It arguably can have more than one meaning. Farmers Insurance Group v. Sessions, 100 Idaho 914, 916, 607 P.2d 422, 424 (1980).

The Kelsos contend that, because the clause is ambiguous, it should be interpreted in their favor.¹  They appropriately cite Bonner County v. Panhandle Rodeo Ass'n, 101 Idaho 772, 620 P.2d 1102 (1980), for the proposition that " ' [w]here language may be given two meanings, one of which permits recovery and the other does not, it is to be given the construction most favorable to the insured.' " 101 Idaho at 776, 620 P.2d at 1106 (quoting Erikson v. Nationwide Mutual Ins. Co., 97 Idaho 288, 292, 543 P.2d 841, 845 (1975)). See also Abbie Uriguen Oldsmobile Buick, Inc. v. United States Fire Ins. Co., 95 Idaho 501, 507, 511 P.2d 783, 789 (1973); Stephens v. New Hampshire Ins. Co., 92 Idaho 537, 540, 447 P.2d 14, 17 (1968). Because Idaho law supports the proposition that arguably ambiguous language in insurance contracts is to be construed in favor of the insured, we conclude that the ambiguous "use" clause in their policy includes the discharge of passengers.

II. Causal Relationship between Use of the Vehicle and the Accident

We also find that the district court's holding with respect to causation is in error. The district court ruled that, as a matter of law, Robin Kelso's use of her car was not a cause of the accident. However, the Kelsos' policy, quoted supra, provides coverage for damages "resulting from" the use of their car. This language requires an inquiry into whether Robin Kelso's allegedly negligent "use" of her car was a substantial factor in bringing about her son's injuries. Resolution of that issue requires a determination of proximate cause. However, issues of proximate cause are rarely treated as purely legal, because questions of fact almost inevitably intrude. United States v. Marshall, 230 F.2d 183, 192 (9th Cir. 1956). For much the same reason, summary judgment is not favored in negligence actions. 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure, Sec. 2729 at 194-95 (2d ed. 1983). Nothing in the record suggests that the instant case should be regarded as one of the rare exceptions.

The district court's grant of summary judgment on the issue of causation was improper, because genuine issues of material fact remain as to whether the accident in this case resulted from Robin Kelso's allegedly negligent conduct in using her car.

CONCLUSION

We reverse the district court's ruling on the "use" clause. We hold that the clause should be construed to extend coverage for the insured parties. We construe it to include the discharge of passengers from the insured vehicle.

We also reverse the district court's ruling that, as a matter of law, Robin Kelso's use of her car could not have been a cause of the accident. Whether her conduct in using her car resulted in the accident is a question of proximate cause and requires factual determinations. We remand for proceedings consistent with the views expressed herein.

REVERSED and REMANDED.