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MOTORISTS MUT. INS. CO. v. KULP

June 23, 1988

Motorists Mutual Insurance Co.
v.
Harrison Kulp, et al.



The opinion of the court was delivered by: HUYETT

 DANIEL H. HUYETT, 3rd, District Judge.

 This is a declaratory judgment action brought by Motorists Mutual Insurance Company against Harrison Kulp and Betty Kulp, holders of a homeowner's insurance policy issued by the plaintiff, and Laurie A. Topper, the parent and natural guardian of Timothy L. Topper, a minor. Presently pending are cross motions for summary judgment filed by all parties. These motions require me to consider, first, whether the motorized minibike involved in the underlying accident was a motorized land vehicle within the meaning of the policy; second, whether the Pennsylvania Supreme Court would hold that the Motorists Mutual homeowner's policy at issue here excludes coverage for a claim of negligent entrustment under the facts of this case; and, third, whether the Kulps had a reasonable expectation of coverage under this policy.

 Background

 On July 14, 1986, Timothy Topper, age 9, was visiting the home of his aunt and uncle, Betty and Harrison Kulp. He and his 10 year old cousin, Kerry Kulp, were playing in the yard on Kerry's motorized minibike. Mrs. Kulp gave the boys permission to take the minibike to a nearby field where children commonly rode minibikes like Kerry's, as well as larger dirt bikes. Although not far from the Kulp house, this field was neither part of nor adjacent to the Kulp's premises. While riding the minibike in this field, Timothy suddenly turned in front of another child riding a dirt bike who, unable to stop, collided with Timothy. Timothy fell from the minibike and suffered serious injuries to his face and head.

 A claim was made on behalf of Timothy Topper under the Kulps' homeowner's policy. The defendants characterize this claim as a claim for negligent supervision and negligent entrustment by the Kulps. Thereafter, Motorists Mutual brought the present action seeking a declaratory judgment that the homeowner's policy excluded coverage for Timothy's injuries. Motorists contends that the claim arose out of the use of a motor vehicle owned by an insured. *fn1"

 The Bike

 The minibike which Timothy was riding is no longer available for inspection, but has been described at length during the depositions in this case. It was a small scooter equipped with a lawnmower engine. The minibike was assembled by a family friend. The engine was started by means of a pull rope. The minibike was equipped with a right hand throttle for acceleration; there were no gears. It had a maximum speed of approximately 10 m.p.h. The bike had a pedal brake. The minibike stood approximately 36-40" high, and had wheels which have been described as approximately 10" in diameter and thicker than a bicycle tire.

 The minibike was not licensed for use on public roads, and there is no evidence that the minibike was ever used on public roads. *fn2" It was used only for recreation, and not for transportation. It could be, and sometimes was used on the Kulp premises; however, the neighboring field was more attractive because it offered a greater space in which to ride.

 The Kulps have both stated that they viewed the minibike as a "toy," or "a step above a toy." It appears that the size of the bike made it suitable only for young children. But whether intended as a toy or not, the Kulps recognized a safety hazard and never allowed their son to ride the bike without a helmet.

 The policy excludes coverage for personal injuries arising out of the ownership, maintenance or use of "a motor vehicle" owned by any insured. Motorists Mutual argues that the Toppers' claim falls within that exclusion and that coverage was, therefore, properly denied. Defendants contend, first, that the bike was not a motor vehicle within the meaning of the policy.

 The policy defines a "motor vehicle" as:

 
a. a motorized land vehicle designed for travel on public roads or subject to motor vehicle registration. A motorized land vehicle in dead storage on an insured location is not a motor vehicle.
 
b. a trailer or semi-trailer designed for travel on public roads and subject to motor vehicle registration. A boat, camp, home or utility trailer not being towed by or carried on a vehicle included in 5a is not a motor vehicle;
 
c. a motorized golf cart, snowmobile, or other motorized land vehicle owned by any insured and designed for recreational use off public roads, while off an insured location. A motorized golf cart while ...

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