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Court of Appeal, Fourth District, Division 1, California.

HARTFORD ACCIDENT & INDEMNITY COMPANY, Plaintiff and Respondent, v. HEALY TIBBITTS CONSTRUCTION CO., Defendant, Cross-Complainant and Appellant. Insurance Company of the State of Pennsylvania, Defendant, Cross-Defendant and Appellant, Caralee WEICH, et al., Real Parties in Interest.

Civ. 26393.

Decided: January 29, 1982

John R. Johnson, Ralph S. LaMontagne, Jr. and Kern & Wooley, Los Angeles, for defendant, cross-defendant and appellant Insurance Co. of the State of Pennsylvania. Thomas A. H. Hartwell, John B. Bates, Jr. and Cooley, Godward, Castro, Huddleson & Tatum, San Francisco, for defendant, cross-complainant and appellant Healy Tibbitts Construction Co. Robert J. Finan and Kenny & Finan, San Francisco, for plaintiff and respondent. No appearance for real parties in interest.

This appeal by Insurance Company of the State of Pennsylvania (ICP) from a judgment in favor of Hartford Accident & Indemnity Company (Hartford) involves a question of insurance coverage.   As we shall explain, we conclude the exclusion of the Hartford policy does not apply and therefore reverse the judgment with instructions to the trial court to enter judgment for ICP.


 The Healy Tibbitts-Astrocopters Agreement;  The Accident;  The Wrongful Death Action

In 1972, Healy Tibbitts (HT), a general contractor, signed a written contract to build an ocean fishing pier and sewer outfall for the City of Pacifica.   HT agreed with Astrocopters that for $275 daily the latter would provide a helicopter and pilot to transport men and materials to the offshore construction site.

As part of the construction project HT designed and built the offshore platform known as a “spider.”   A “spider” is a platform with eight adjustable legs enabling it to “walk” on the bottom of the ocean.   A helicopter landing area or helipad, also designed and built by HT, was attached to the “spider.”   On September 25, 1973, Astrocopters' employee Floyd Weich flew one of HT's workers to the spider.   The landing was completed without incident.   As the helicopter was taking off, however, it crashed into the ocean, killing the pilot.

In 1974, Weich's heirs filed a wrongful death action against HT alleging negligence in the “building, construction, design and development” of the offshore construction rig and helipad.   HT's sole defense was undertaken by Hartford under a reservation of rights agreement.   In 1978 the heirs settled for $227,500, agreeing the insurer responsible for payment of that sum would be resolved in this declaratory relief action.

 The Policies;  Trial and Judgment

Two liability insurance policies covering HT were in effect at the time of the accident.   Hartford's liability policy contained the following exclusion:

“This insurance policy does not apply:  (b) to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of (1) any automobile or aircraft operated by or rented or loaned to the named insured.”

Astrocopters' aircraft liability policy with ICP contained an endorsement naming HT as an additional insured with reference to Astrocopter operations.   In that policy ICP agreed:

“[T]o pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person ․ caused by an occurrence and arising out of the ownership, maintenance or use of the aircraft.”

At trial Hartford claimed its comprehensive liability policy did not provide coverage because the incident causing the death of Weich was excluded by the terms of the policy.   The trial court agreed, finding Weich's attempt to take off from the helipad 1 and the crash of the helicopter arose out of the operation or use of the helicopter rented to HT within the meaning of the exclusion.   The court also concluded Weich's death was one “arising out of” the use of the helicopter within the meaning of the coverage provision of ICP's policy.   A judgment ordered ICP to pay the settlement and to indemnify Hartford for attorneys fees and costs ($20,057.95) incurred in defending HT in the wrongful death action.   ICP appeals.2


 In a declaratory relief action between two insurance companies to determine coverage responsibility for an injury, where the insured with the consent of one of the insurers has entered into a good faith settlement with the injured party, a court in the absence of other evidence must look to the pleadings in the underlying action to determine the factual basis of the occurrence giving rise to the injury.  (See generally Hartford Accident and Indem. Co. v. Civil Service Employees Ins. Co. (1973) 33 Cal.App.3d 26, 28–29, 108 Cal.Rptr. 737;  see also Fidelity & Deposit Co. v. Whitson (1960) 187 Cal.App.2d 751, 757–758, 10 Cal.Rptr. 6;  Lamb v. Belt Casualty Co. (1935) 3 Cal.App.2d 624, 631–632, 40 P.2d 311;  compare Gray v. Zurich Insurance Co. (1966) 65 Cal.2d 263, 276–277, 54 Cal.Rptr. 104, 419 P.2d 168.)   Although ICP and Hartford stipulated to the amount of the damages, issues of negligence and causation remain unlitigated.

The Weich complaint alleged negligence by HT in the design and construction of the “spider” and attached helipad caused the helicopter crash and the resulting death of Floyd Weich.   No evidence on either issue was presented at trial by ICP or Hartford.   We therefore assume, for the purposes of our discussion here, the accuracy of those allegations.

 In interpreting insurance contracts, it is well established the words of a policy are to be measured by the reasonable expectations of the insured.   (Gray v. Zurich Insurance Co., supra, 65 Cal.2d 263, 270, 54 Cal.Rptr. 104, 419 P.2d 168.)   In this case, the two policies insuring HT would appear to be mutually exclusive:  one policy covers liability for injuries arising out of the use of aircraft while the other is a general liability policy but excludes from coverage liability for injuries arising out of the use of aircraft.   Given the dove-tailing of this language in the two policies, both of which were in effect at the time of the injury, we do not think HT could reasonably expect coverage under both policies for its liability to the Weich heirs.3  Assuming the existence of the two policies, we therefore confine ourselves to the question of whether HT's liability arose out of the use of the aircraft.   We specifically do not address whether both policies individually, in the absence of the other, might be reasonably interpreted to provide coverage for HT's liability.4

 Relying on the Weich pleadings, ICP argues HT's liability in this case did not “arise out of the use of” the helicopter but rather arose out of HT's negligence in the design and construction of the offshore platform and helipad.   Hartford responds the legal theory selected by Weich's heirs in their wrongful death action is irrelevant to the interpretation of the aircraft exclusion in Hartford's policy, contending Weich's death arose out of use of aircraft since, but for use of the helicopter, the accident would not have occurred.5

Hartford's argument, focusing on whether the injury here arose out of use of the helicopter, ignores the fact that both policies involved are liability policies.   The insurer's obligation to indemnify the insured is premised not on the occurrence of an injury but rather on the insured's liability for an injury.   The essence of a liability insurance policy, indeed its raison d'être, is its inclusion or exclusion from coverage of certain types of liability.   The policy must be read and understood in that context.   Whether an injury arose out of (i.e., was causally-related to) use of a given instrumentality is not determinative.   The critical question is whether the events giving rise to the insured's liability were causally-related to the use of that instrumentality.

Although not always phrased in exactly the same terms, California precedent is generally consistent with this analytical approach.   In State Farm Mut. Auto. Ins. Co. v. Partridge (1973) 10 Cal.3d 94, 109 Cal.Rptr. 811, 514 P.2d 123, the Supreme Court considered a question of coverage involving a homeowner's policy and an automobile liability policy, both issued by State Farm to Partridge.   The homeowner's policy providing general comprehensive coverage contained an exclusion as to liability arising out of the ownership, maintenance or use of automobiles with language similar to the exclusion provision in Hartford's policy.   While Partridge was using the insured vehicle on a hunting trip with friends, an accidental shooting occurred, injuring a passenger.   In the declaratory relief action, the trial court found Partridge negligent in both the operation of the vehicle and his modification of the gun and declared both insurance policies covered the accident.   In affirming, the Supreme Court said:

“In issuing the homeowner's policy to Partridge, State Farm agreed to protect the insured against liability accruing from non-auto-related risks.   The insurer does not deny that Partridge's negligence in filing the trigger mechanism of his gun was a risk covered by the homeowner's policy;  thus, if the gun had accidentally fired while the insured was walking down the street or running through the woods, the insurer admits that any resultant damage would clearly be covered by the policy.   The insurer contends, nonetheless, that coverage is foreclosed here because the present accident arose out of the use of an automobile.

“In the instant case, however, although the accident occurred in a vehicle, the insured's negligent modification of the gun suffices, in itself, to render him fully liable for the resulting injuries.   Under these facts the damages to [the victim] are, under the language of the homeowner's coverage clause, ‘sums which the Insured ․ [became] legally obligated to pay’ because of the negligent filing of the trigger mechanism;  inasmuch as the liability of the insured arises from his non-auto-related conduct, and exists independently of any ‘use’ of his car, we believe the homeowner's policy covers that liability. ”  (10 Cal.3d at p. 103, 109 Cal.Rptr. 811, 514 P.2d 123, italics supplied.)

Partridge focuses on the source of the insured's liability and concludes that where there are two acts of negligence committed by the insured which concurrently cause damage to the plaintiff, the insurance policies issued to the insured must be analyzed with respect to each of the negligent acts to determine whether the insured's policy is covered by the policy.   In many cases, of course, it is but a single negligent act which gives rise to liability of the insured.   The analysis, however, remains the same;  the focus must be on whether the negligent act, i.e., the source of the insured's liability, arose out of use of the relevant instrumentality.

This analysis was applied in Pacific Indem. Co. v. Truck Ins. Exch. (1969) 270 Cal.App.2d 700, 76 Cal.Rptr. 281, which involved a negligence action by a truck driver against the owner of a truck repair facility for injuries sustained when a hoist suspending the truck broke, causing the driver to be pinned beneath the truck.   The facility owner, who provided a garage and equipment to allow drivers to repair their own trucks, insured the premises by means of a general liability policy.   The injured driver also had a vehicle liability policy covering the liability of any permissive user of the truck for damages arising out of that use.

Interpreting the portion of the vehicle policy requiring “damages arising out of ownership, maintenance, or use” of the truck, the court noted that although it was clear the truck was causally-related to the driver's injuries, the vehicle policy was a liability policy and not an all-risk policy.  (270 Cal.App.2d at p. 704, 76 Cal.Rptr. 281.)

“The notion of law-imposed damages arising out of an activity strongly connotes an actionable wrong committed in the conduct of the activity.   In the present case, of course, negligence was the actionable wrong.   The actionable negligence lay in the maintenance of the chain hoist which was part of Stapleton's shop equipment, not in his maintenance or use of the insured truck.”  Ibid.

The Pacific Indemnity court's approach, centering on whether the insured's liability arose out of use of the relevant instrumentality, has been followed in later cases.6  (See, e.g., Dillon v. Hartford Acc. & Indem. Co. (1974) 38 Cal.App.3d 335, 343, 113 Cal.Rptr. 396;  Camay Drilling Co. v. Travelers Indem. Co. (1970) 12 Cal.App.3d 237, 241, 90 Cal.Rptr. 710.)

Applying this test to the case before us, we must determine whether HT's liability for Weich's death arose out of the use of the helicopter.   As we explained earlier, we have no judicial finding of fact as to the source of HT's liability in view of the compromise and settlement agreement, but we will assume HT's negligence in the design and construction of the offshore platform and helipad caused Weich's death.  (See p. 165 of 180 Cal.Rptr., ante. )   Hartford contends even if we focus on the source of HT's liability, ICP's policy must be held to provide coverage because construction of a helipad is integrally related to operation and use of a helicopter.   Hartford's argument is again facially appealing but off-target.

A substantial body of California law has established the principle that mere ownership and maintenance of a facility integrally related to the use of vehicles does not constitute use of a vehicle for the purpose of insurance coverage.  (See, e.g., American Home Assur. Co. v. State Farm Mut. Auto. Ins. Co. (1969) 1 Cal.App.3d 355, 81 Cal.Rptr. 732, disapproved on other grounds in State Farm Mut. Auto. Ins. Co. v. Jacober (1973) 10 Cal.3d 193, 208, 110 Cal.Rptr. 1, 514 P.2d 953;  Pacific Indem. Co. v. Truck Ins. Exch., supra, 270 Cal.App.2d 700, 76 Cal.Rptr. 281.)   The leading case is International Business Machines Corp. v. Truck Ins. Exch., supra, 2 Cal.3d 1026, 89 Cal.Rptr. 615, 474 P.2d 431, which involved alleged negligence by IBM in the maintenance of a truck loading dock resulting in injury to a truck driver who was unloading cargo at the dock.   Noting the nature of insurance as a risk-spreading device, the court indicated liability should be imposed on the entity insuring the hazards of the business which gave rise to the injury.   (Id., at p. 1032, 89 Cal.Rptr. 615, 474 P.2d 431.)   Accordingly, it held mere maintenance of a loading dock did not convert IBM into a “user” of the truck.

Similarly in this case, mere construction of a helipad does not convert HT into a “user” of the helicopter.   In fact, “construction” conjures a more remote relationship than “maintenance.”   For instance, had HT negligently constructed the loading dock for IBM in the previously-discussed case, which resulted in injuries to the truck driver, Hartford certainly could not claim HT's liability arose out of use of the truck.   Here, HT's liability is based not on its maintenance or operation of the helipad but rather on its design and construction of the facility.   As with IBM, HT's acts or omissions in design and construction are effectively independent of the use of the aircraft.  (See State Farm Fire & Cas. Co. v. Camara (1976) 63 Cal.App.3d 48, 52, 133 Cal.Rptr. 600.)

Moreover, the court's opinion in IBM expressed concern that liability not be imposed “upon the insurance carrier whose insured was the least culpable” but rather on the carrier with whose insured “the obligation for the proper maintenance of the loading dock rests ․”  (2 Cal.3d at p. 1032, 89 Cal.Rptr. 615, 474 P.2d 431.)   In this case, although HT was technically “an insured” under both policies, the ICP policy was primarily issued to Astrocopters as the “named insured,” against whom no negligence was alleged.   HT was added as an “additional insured” only with respect to Astrocopter operations at the Pacifica pier site and only with the express reservation that “inclusion of [the] additional insured under this policy does not in any manner afford to [it] any coverage not available to the Named Insured under this policy.”   The obligation for the proper design and construction of the helipad rested with HT, whose general liability insurer Hartford covered such risks.   ICP did not contract to indemnify Astrocopters for liability arising from the negligent design and construction of helipads.   And by express terms of the ICP policy, the coverage afforded to additional insureds can be no greater than that afforded to Astrocopters itself.   In our view, forcing coverage on ICP would effect a transfer of liability from the insurance carrier with whose insured rests the obligation for proper design and construction to the carrier whose insured was not responsible for the alleged cause of the accident.


The judgment is reversed with instructions to the trial court to enter judgment against Hartford Accident & Indemnity Company and in favor of both Healy Tibbitts Construction Company and the Insurance Company of the State of Pennsylvania.


1.   Hartford's counsel in the instant declaratory relief action stipulated to the fact that the Weich plaintiffs contended only “that Healy Tibbitts was negligent because of the construction, design and maintenance of the helicopter pad and not that they were negligent because they were in any way operating the helicopter.”

2.   HT filed a protective appeal saying in effect it really doesn't care which insurer pays but it should not be left uninsured.

3.   We acknowledge the existence of language in State Farm Mut. Auto. Ins. Co. v. Partridge (1973) 10 Cal.3d 94, 101–102, 109 Cal.Rptr. 811, 514 P.2d 123 which could be read to suggest that mutually exclusive language does not preclude a holding that both policies may be interpreted to provide coverage.   That statement is undoubtedly correct in the context of the Partridge case where a single injury resulted from two independent acts of negligence by the insured;  liability for one of the acts was covered by the insured's automobile policy whereas a homeowner's policy covered the other.Partridge carefully pointed out, however, that a court's obligation to interpret coverage clauses broadly and exclusion clauses narrowly is premised on the “fundamental principle that all ambiguities in an insurance policy are construed against the insurer-draftsman ․”  (10 Cal.3d at p. 102, 109 Cal.Rptr. 811, 514 P.2d 123, italics added.)   Such an ambiguity was created in Partridge by the two independent negligent acts which could fairly be resolved in favor of concurrent coverage by both policies.   No such ambiguity is created in cases like the present one where but a single act of negligence serves as the basis for liability of the insured.   There may be a reasonable and legitimate dispute as to which policy provides coverage.   But where two policies are issued to the same insured containing mutually exclusive coverage and exclusion provisions, and where the insured has reason to be aware of such language, it cannot be contended the insured reasonably expected coverage under both policies for a single source of liability.   As to that issue, there is simply no ambiguity to be interpreted.

4.   We are aware of the existence of cases stating the rule that in determining the coverage provided by an insurance policy, the policy must be considered alone as though no other insurance was available.  (See, e.g., Hartford Accident & Indem. Co. v. Civil Service Employees Ins. Co. (1973) 33 Cal.App.3d 26, 31, 108 Cal.Rptr. 737;  Mission Ins. Co. v. Feldt (1964) 62 Cal.2d 97, 101, 41 Cal.Rptr. 293, 396 P.2d 709;  Monolith Portland Cement Co. v. American Home Assur. Co. (1969) 273 Cal.App.2d 115, 123, 78 Cal.Rptr. 113;  Universal Underwriters Ins. Co. v. Aetna Ins. Co. (1967) 249 Cal.App.2d 144, 149, 57 Cal.Rptr. 240.)   With one exception, those cases are distinguishable on the ground that only one of the policies involved was issued to insured against whom liability was being imposed;  the other was generally issued to the injured plaintiff and applied to the liable defendant only through an omnibus clause covering “permissive users.”   Thus, the existence of two policies in no way affected the reasonable expectations of the insured since the insured was only aware of one policy prior to the occurrence of the injury.   Moreover, the Supreme Court's discussion in International Business Machines Corp. v. Truck Ins. Exch. (1970) 2 Cal.3d 1026, 1032, 89 Cal.Rptr. 615, 474 P.2d 431 strongly suggests that consideration of alternate insurance policies is a permissible if not necessary step in analyzing whether liability “arose out of the use of” a given instrumentality within the meaning of the policy.   As we explain later (see fn. 6, post ), “[a]lthough the issue is not free of difficulty” we view the exceptional case (Hartford v. Civil Service ) as having been incorrectly analyzed.  (33 Cal.App.3d 26, 31, 108 Cal.Rptr. 737.)

5.   In support of its argument Hartford quotes from what it describes as the reasonable and common sense holding of Heiser v. Gibson (E.D.La.1974) 386 F.Supp. 901:“But the theory of liability upon which a plaintiff chooses to base his action is irrelevant to the application of the exclusion by its expressed terms.   The exclusion turns on the source of the injury, not the theory of legal liability.   If the injury ‘arises out of’ the use or operation of an automobile, then the exclusionary language forecloses coverage.   The language in which this exclusion was drafted is clear;  had the companies involved meant to exclude only injuries arising out of negligence in the operation of an automobile, they might have done so with those very words.”  (Italics added.)  (Id., at p. 902.)California courts, however, do not analyze the issue in an identical manner, concentrating instead on whether “liability of the insured arises from ․ conduct ․ independent [ ] of any ‘use of [a] car ․”  (State Farm Mut. Auto. Ins. Co. v. Partridge, supra, 10 Cal.3d 94, 103, 109 Cal.Rptr. 811, 514 P.2d 123, italics supplied.)

6.   We recognize liability may be based on theories other than negligence.   Thus, in Hartford Accident & Indem. Co. v. Civil Service Employees Ins. Co. (1973) 33 Cal.App.3d 26, 108 Cal.Rptr. 737, 10 Cal.Rptr. 6, a statute imposed strict liability on a dog owner for injuries suffered by the victim of a dog bite.   We think the Hartford v. Civil Service court erred in focusing on whether the injury arose out of the use of an automobile (the dog bit the victim while she was exiting a vehicle) rather than on whether the insured's liability arose out of use of the vehicle.   Since strict liability was imposed based merely on ownership of the dog, it seems clear liability did not arise out of ownership and use of the vehicle.

WIENER, Associate Justice.

BROWN, P. J., and MILKES, J.*, concur.