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Hurt neighbor can tap auto and home policies

Where a man’s car repairs led to a fire and explosion that severely injured his neighbor, the neighbor can collect under both the man’s auto liability policy and his homeowner policy, a Rockingham County Circuit judge has ruled.

The carrier on the homeowner’s policy invoked an exclusionary clause in the policy, and said it did not have to cover personal injuries arising from maintenance of a motor vehicle.

In the face-off between the two carriers, the trial judge said there was no Virginia precedent directly on point, although he reviewed cases that discuss whether personal injuries have arisen from various kinds of “uses” of automobiles, a popular topic in declatory judgment actions over the years.

The judge rebuffed the carrier’s contention, finding that the car repair was just one “part of a long chain of causation” that led to a fireball being launched into the neighbor’s backyard.

The case is Rockingham Mutual Ins. Co. v. MacHardy (VLW 099-8-132). The opinion was written by Judge John J. McGrath Jr.

Cold day

On Valentine’s Day 1998, a man named Shifflett pulled his 1967 Camaro into his unheated garage for some repair work. He started a kerosene heater to warm up his work area, but he failed to open a door or window for any ventilation.

The man also had stored in the garage “two or three bales of straw or hay, an approximately three gallon can of gasoline, and a lawn mower and a weedeater containing gasoline and/or oil mixtures,” as well as assorted cans of paint, paint thinner, a propane tank and several cans of propane equipment, according to McGrath’s opinion.

After the man had fired up his kerosene heater, a friend stopped by and dropped off a tank of acetylene gas, a tank of oxygen, and some welding equipment at the garage.

After lunch the man and a friend removed the car’s gas tank. Within minutes of lowering the tank to the floor, the men saw a blue flame running from the kerosene heater to the gas tank, which “promptly burst into intensive flame,” McGrath wrote.

The “conflagration continued to spread and roar,” he wrote. While the man was trying to move his dogs out of their backyard pen, the neighbor, MacHardy, came out of her house and inquired of the man whether everyone was out of his house. About 20 minutes after the fire started, and before the fire department arrived, the woman was walking back toward her own yard when “there was a thundering explosion” and a fireball was blown out of the garage and landed on the neighbor. She suffered extensive and serious burns over most of her body.

Fire investigators determined that the immediate cause of the injury was the acetylene tank, which had exploded, sending a fireball of explosive liquid gases that apparently were projected in an arc into the neighbor’s yard.

When she sued for $2 million, the auto liability carrier did not contest coverage, but the homeowner carrier said it had no duty to defend or indemnify the man because of the policy’s exclusion of coverage for injuries arising out of “the ownership, maintenance, use…of motor vehicles.”

But the woman argued there was much more than the car repair at issue.

Her motion for judgment in her underlying tort action “alleges a number of separate and distinct negligent acts, only one of which involves the maintenance of the automobile…, and that the ultimate explosion did not result from the maintenance of a motor vehicle,” McGrath wrote.

The judge found no Virginia case law precisely on point, but surveyed Virginia cases evaluating injury “arising out of” the “use” of an automobile. Those cases, he said, “seem to be based upon the rationale that coverage is largely dependent on the relationship between the injured party and the automobile whose coverage is at issue.” Here, the neighbor clearly had “no relationship whatsoever to the automobile in question.”

A review of non-Virginia cases “which deal with fires and explosions” showed that when the source of the ignition is either the car itself or a tool being used on the vehicle, courts generally hold that an ensuing explosion or fire arose out of the maintenance of the automobile.

But where the source of the ignition is not the vehicle or a tool, courts generally have held that the ensuing injuries either do not arise out of the maintenance of the vehicle, or the vehicle maintenance is only a “concurring cause” of the subsequent injury.

Here, the neighbor “was a stranger to the entire maintenance effort. The source of the ignition had nothing to do with the car; it was an open flame kerosene heater being used in the garage. Moreover, the actual ignition of the Camaro’s gas tank is not what injured Mrs. MacHardy. The gas tank started a fire, which raged from ten (10) to twenty (20) minutes consuming a number of highly combustible items stored in Mr. Shifflett’s garage before the heat became hot enough to explode the acetylene tank which was the direct cause of Mrs. MacHardy’s injuries,” McGrath wrote.

Although the automobile maintenance was clearly part of a long chain of causation ‘but for’ which there would not have been the ultimate injury, the fact that Mrs. MacHardy was a complete stranger to the repair effort and that there were many other non-automotive causes which contributed more significantly and more directly to the ultimate explosion, the homeowner’s coverage is not excluded on these facts,” the judge concluded.

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