and normally understood to be for recreational use, not a toy constructed or reconstructed by a father and his son."
I disagree. This minibike was certainly not designed for use on public roads; therefore, it must be assumed to have been designed for use off public roads.
It was not designed for transportation or any purpose other than recreation. I fail to understand defendants' distinction between an article designed for recreational use and a toy. Nor can I perceive a distinction between a snowmobile or a golf cart and this vehicle.
Therefore, I conclude that the minibike involved in this accident was a motor vehicle as defined by the policy.
Negligent Entrustment or Negligent Supervision
Defendants contend that the claim against Motorists Mutual arises out of the Kulps' alleged act of negligent supervision or negligent entrustment, and not out of the use of the minibike. They argue that, therefore, their claim does not fall within the policy exclusion.
Pulleyn v. Cavalier Ins. Corporation, 351 Pa. Super. 347, 505 A.2d 1016 (1986), alloc. denied, 515 Pa. 569, 526 A.2d 1190 (1987), is on all fours with the present case. There, Steven James Kirk, acting in the course of his employment, was driving a car owned by his employers. He was involved in an accident with an oncoming car; plaintiff's wife and child were killed in the accident. Plaintiff brought suit against the employer on a theory of negligent entrustment of an automobile to a person with physical illness or incapacity. Coverage was sought under a general liability insurance policy which excluded coverage for "bodily injury . . . arising out of the ownership, maintenance, operation, use, loading or unloading of: . . . (2) any other automobile . . . operated by any person in the course of his employment by any insured."
In what it called a case of first impression for the appellate courts of Pennsylvania, the en banc panel of the Superior Court held that the policy excluded coverage. The court reviewed the divided case law in this area. It noted that those cases which have found coverage have done so on the theory that the gravamen of the action is not the use of the motor vehicle, but the prior failure to supervise a dangerous instrumentality. See Douglass v. Hartford Insurance Co., 602 F.2d 934, 935-36 (10th Cir. 1979); Upland Mutual Insurance, Inc. v. Noel, 214 Kan. 145, 519 P.2d 737 (1974); Republic Vanguard Insurance Co. v. Buehl, 295 Minn. 327, 204 N.W.2d 426 (1973); Lalomia v. Bankers & Shippers Insurance Co., 35 A.D.2d 114, 312 N.Y.S.2d 1018 (1970), aff'd, 31 N.Y.2d 830, 339 N.Y.S.2d 680, 291 N.E.2d 724 (1972). Other courts have declined to find coverage, following the "dovetail" approach which is "premised upon the principle that the insured must look to the basic protection provided by the specific insurance agreement designed to cope with the risk inherent in automobile operation, with homeowner's protection available only to cover all other general or unspecified risks." Insurance Company of North America v. Waterhouse, 424 A.2d 675, 680 (Del. Super. 1980). See Bartels v. Romano, 171 N.J. Super. 23, 407 A.2d 1248 (1979). Finally, a number of courts which have declined to find coverage have reasoned that "although the act of negligently entrusting a motor vehicle is an essential (if not the primary) element of the tort, liability giving rise to the tort is not actually triggered until the motor vehicle is used in a negligent manner resulting in injury." Michigan Mutual Insurance Co. v. Sunstrum, 111 Mich. App. 98, 104, 315 N.W.2d 154, 157 (1981). See Hanover Insurance Co. v. Grondin, 119 N.H. 394, 402 A.2d 174 (1979); Lumbermens Mutual Casualty Co. v. Kosies, 124 Ariz. 136, 602 P.2d 517 (1979); Barnstable County Mutual Fire Insurance Co. v. Lally, 374 Mass. 602, 373 N.E.2d 966 (1978); Cooter v. State Farm Fire & Casualty Co., 344 So. 2d 496 (Ala. 1977); Farmers Insurance Group v. Johnson, 43 Wash. App. 39, 715 P.2d 144 (1986); Williamson v. Continental Casualty Co., 201 N.J. Super. 95, 492 A.2d 1028 (1985); Insurance Company of North America v. Waterhouse, 424 A.2d 675.
The en banc Superior Court was persuaded by the reasoning of those courts declining to find coverage on the ground that liability was triggered by the use of the automobile:
It is the concurrence of these dual elements - negligent entrustment by the owner or custodian of the instrumentality plus its negligent use by the entrustee - that is missing in the rationale of those cases upholding coverage. Taken literally, this line of reasoning - that negligent entrustment of the vehicle, and not its use, is the basis of insured's alleged liability - the injured party could recover absent any showing that the incompetent to whom the vehicle is entrusted caused the injury by his negligent use of the vehicle. As we have observed, this does not comport with the elements that make up this tort concept of negligent entrustment.