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filed: January 17, 1986.


Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, at No. GD 77-6055.


Charles Kirshner, Pittsburgh, for appellant.

Robert A. Arcovio, Pittsburgh, for appellee.

Spaeth, President Judge, and Brosky and Olszewski, JJ. Spaeth, President Judge, files a dissenting opinion. Spaeth, President Judge, joined in this opinion before the expiration of his term on the court.

Author: Brosky

[ 352 Pa. Super. Page 79]

This appeal is from a declaratory judgment in a civil dispute over insurance coverage of an automobile accident when the automobile was set in motion by a three-year-old child. The parties are the insurer in an automobile policy, appellant, and the insurer in a homeowner's policy, appellee.

[ 352 Pa. Super. Page 80]

The court below held that the appellant as writer of the automobile policy was solely liable for coverage. We agree and, accordingly, affirm.

The relevant facts and procedural history were accurately summarized in the trial court opinion.

On March 19, 1976, Landis Robinson visited the home of Mr. and Mrs. Gilbert to sell insurance to them. She parked her car facing downhill in the street. Erin Gilbert, the daughter of the Gilbert couple, somehow obtained the keys to Robinson's car and put the car in motion. It traveled downhill and struck two children. Two separate suits were filed on behalf of the two injured children. In one case, the Gilberts were named as the original defendants, and in the other, they were joined as additional defendants. The liability was predicated on Erin's activity involving the setting of an automobile in motion. In the direct lawsuit, wherein the Gilberts were parties defendant, the allegations were that Erin drove the car.

In the other lawsuit, the negligence was predicated on the parents jointly and/or alternatively allowing their minor daughter to attempt to operate a motor vehicle and permitting the child to drive the automobile.

The Plaintiff, Erie Insurance Exchange, had issued an automobile policy to husband, Bobby G. Gilbert. The defendant, Transamerica, had issued a homeowners policy to both Gilberts as owners of their household. Both policies were in effect on March 19, 1976.

After the filing of the aforementioned lawsuits against the Gilberts, they were settled. Erie had appeared and defended and both carriers paid one-half of the settlement amount.

The above cross-declaratory judgment actions seek to establish sole liability of the other as mentioned before, seeking the entire cost of defense and the entire amount of settlement to be imposed on the other.

[ 352 Pa. Super. Page 81]

The pertinent portions of the policies are excerpted here. The automobile insurance policy, written by appellants provides:

I. Coverage A -- Bodily Injury Liability: To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury, . . . caused by accident and arising out of the ownership, maintenance or use of the automobile.

The homeowner's policy, written by appellee, is the mirror image of the other:

This policy does not apply:

1. Under coverage E -- Personal Liability . . .

(a) to bodily injury or to property damage arising out of the . . . operation, use . . . of

(2) any motor vehicle . . . operated by . . . any insured . . . .

Two questions, then, are presented in this appeal. First, given the circumstances of this accident, can the automobile policy be said to provide coverage? In other words, can a three-year-old child be said to "use" an automobile so as to come within the terms of the policy? Second, can a claim on the part of the victims of negligent entrustment by the parents of the automobile to the child be covered by a homeowner's policy which excludes coverage for events arising out of the operation or use of a motor vehicle? In other words, is that negligent entrustment tort claim essentially independent of the nature of what was entrusted?

Each of these two issues will be treated in turn.

Can an automobile be used by a child?

A. Out of state precedent.

Four of our sister states have considered the issue before us: does an insurance policy covering the "use" of a vehicle include the consequences of a young child setting the vehicle in motion?*fn1 Three of these cases -- Tucker, O'Brien

[ 352 Pa. Super. Page 82]

    and Assurance -- concluded that there was no "use" of the automobile so as to invoke the policy's coverage. One case -- Bartels -- came to the contrary conclusion. However, an examination of the rationale of each of these two contrary lines fails to inspire an inclination in either direction.

Bartels applied a test laid down in an earlier case out of the Superior Court of New Jersey:

The inquiry should be whether the negligent act which caused the injury, although not foreseen or expected, was in the contemplation of the parties to the insurance contract a natural and reasonable incident or consequence of the use of the automobile, and thus a risk against which they might reasonably expect those insured under the policy would be protected.

Bartels, supra, 171 N.J.Super. at 27, 407 A.2d at 1250, quoting Westchester Fire Ins. Co. v. Continental Ins. Co., 126 N.J.Super. 29, 38, 312 A.2d 664, 669 (1973), aff'd o.b. 65 N.J. 152, 319 A.2d 732 (1974).

Quite obviously, difficulties would arise in applying this test to an actual situation. No doubt the Superior Court of New Jersey confronted just this difficulty for, without any further analysis, they make the ...

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