Homeowners Policy Interpretation

Irving insurance law attorneys who handle claims involving homeowner policy’s need to read this recent opinion out of the Dallas Court of Appeals. It is styled, David Fusaro v. Trinity Universal Insurance Company.
David Fusaro appeals from a summary judgment in favor of Trinity Universal Insurance Company (TUIC). Among other things he contends that his claims asserted against TUIC’s insured were covered under TUIC’s policy.
Christopher Becherer’s mother drove her Isuzu Rodeo to Becherer’s house where she left it with Becherer to replace the brakes. Becherer used a hydraulic jack centered on the front of the vehicle to jack up the vehicle, remove the front wheels, and work on the brakes. Although Becherer had jack stands nearby, he did not use them. Becherer’s friend, Fusaro, was at his house and offered to help when Becherer had difficulty removing a brake caliper. While Fusaro was partially under the front passenger wheel well struggling to loosen a caliper bolt, the hydraulic “jack gave way” and the vehicle suddenly fell on top of Fusaro.
Becherer had a Texas Homeowners Policy–Form B with TUIC. TUIC denied the claim on the basis of no coverage. TUIC relied on exclusion 1.f. of the policy to deny coverage which provides:
1. Coverage C (Personal Liability) and Coverage D (Medical Payments to Others) do not apply to: ** *
f. Bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of: 1) Motor or engine propelled vehicles or machines designed for movement on land, including attached machinery or equipment;
** * which are owned or operated by or rented or loaned to an Insured.

Fusaro sued Becherer for his injuries but TUIC refused to defend based on the above policy language. He prevailed at trial and Becherer assigned the rights he had against TUIC.
Fusaro contends that the exclusion claimed by TUIC for denying coverage fails because the injury did not arise from maintenance of a vehicle which was “owned or operated by or rented or loaned to an Insured.”
TUIC argues, and Fusaro does not contest, that there was a bodily injury arising out of the maintenance of a motor vehicle thereby satisfying the general clause in exclusion 1.f.: “bodily injury . . . arising out of . . . maintenance.” Neither party disputes that Becherer’s mother’s Isuzu Rodeo is a vehicle within the meaning of 1.f.1): “engine propelled vehicles . . . designed for movement on land.” However, the parties disagree about the application of the last clause of the exclusion following the enumerated subparts: “which are owned or operated by or rented or loaned to an Insured.” TUIC contends that the exclusion applies because Becherer was operating the vehicle when he and Fusaro were changing the brake pads. Fusaro argues that he could not have been operating the vehicle when the injury occurred because he was not driving the vehicle.
In this policy, the words in the last clause are not defined terms. Insurance policies are contracts and are controlled by the rules of construction applicable to contracts generally.
The verb “owned” means “to have or hold as property.” According to Webster’s Third New Int’l Dictionary, “Operate” is defined as “to perform a work or labor” and “to exert power or influence” and “to produce an effect.” “Rent” means “to grant the possession and enjoyment of for rent.” And “loan” is defined as “lend” which means “to give into another’s keeping for temporary use on condition that the borrower return the same or its equivalent.” It is clear that the import of these terms and this clause is that the vehicle must be the insured’s property (“owned”) or the insured must have authorized possession (“rented or loaned”) or exercise control of the vehicle whether the insured was performing a work or labor on the vehicle or producing an effect with the vehicle (“operated”).
In this insurance policy, this last clause of exclusion 1.f. is not related to the cause of the injury; causation is the subject of the first clause that the parties conceded was satisfied because the injury was caused by maintenance of a motor vehicle. The significance of the last clause of the exclusion in dispute is its requirement that the insured have some form of dominion and control over the vehicle. The insured was performing customary acts of maintenance and handling on the motor vehicle loaned to him by his mother when the accident occurred which was normal operation of the vehicle. Accordingly, the court concluded that exclusion 1.f. applies.