Using Forklift to Tow Vehicle at Night Not Covered by Shop’s Liability Policy – MS Court

Using the boss’ forklift to tow a personal vehicle to a welding shop at night is not work-related and is not covered by a Penn-Star Insurance commercial liability policy, the Mississippi Supreme Court has decided.

“The trial court’s order denying Penn-Star’s motion for summary judgment is reversed, judgment is rendered in favor of Penn-Star, and this case is remanded to the trial court for consideration of the remaining issues,” Justice Ken Griffis wrote for the court in Penn-Star vs. LaTonya Thompson et al.

The accident happened in 2019. Christopher Shane Partridge was a full-time employee at Murphy’s Welding LLC, near Cleveland, in the Mississippi Delta, home of Delta State University and the Grammy Museum of music.

Partridge’s truck would not run and he hoped to tow it from his home 300 yards away to the welding shop and repair it one night. But he was unable to load the truck onto the shop’s trailer. He then borrowed the shop’s forklift and rigged it to pull his truck – backwards – down the two-lane highway about 9 p.m.

Just as Partridge was about to turn into the welding shop’s driveway, motorist LaTonya Thompson struck the passenger side of the the truck, causing it to shoot across the road and land in a ditch. The collision resulted in pain and injury to Thompson, time off work, medical expenses and property damage, the court opinion explained. She said she had been unable to fully see the truck in its unexpected position in the dark.

Thompson sued Murphy’s Welding, charging that its employee had operated the rigged-up tow vehicle negligently and that the shop was negligent for allowing Partridge to use the forklift in an unsafe manner.

Murphy’s held a commercial liability policy through Penn-Star, which is part of Penn-America Group and United America Indemnity Ltd. Penn-Star asked the circuit court in Bolivar County for summary judgment, declaring that the policy did not cover Thompson’s claim and that the insurer had no duty to defend the lawsuit.

The trial court denied the motion and found that the use of the forklift was covered by the policy.

On appeal, the state Supreme Court cited the policy wording, which appears to provide some gray area but also states that a loss “must arise out of the insured’s business operations.” The question of whether the shop owner gave Partridge permission to use the forklift in the unusual manner was in dispute.

But the justices said that did not matter.

“Whether Murphy gave permission is immaterial to the relationship of the loss to the business operations because Partridge was not engaged in an activity related to Murphy’s Welding,” the June 29 opinion reads. “Stated differently, even assuming Partridge had permission to use the forklift to tow his truck to the shop, such permitted activity was not related to Murphy’s Welding business operations: welding or cutting. And under the commercial general liability policy, such relationship is required.”

Owner James “Bubba” Murphy said he had allowed employees to use the shop and the shop’s truck. Partridge testified that he was allowed unlimited access to the shop and its equipment. But the justices noted that it wasn’t shown that the employee had unlimited access to all of the shop’s equipment.

“Even if Murphy allowed his employees to use the forklift after hours around the shop, nothing in the record supports the conclusion that Partridge was exercising a benefit of his employment when he operated the forklift as a tow truck backwards down the highway at night,” the Supreme Court opinion reads.

The trial court had relied on an Arizona appeals court ruling from 1994. In Delgado vs. Industrial Commission, the Arizona court held that an employee who was using a shop’s air pump on his personal vehicle when it exploded was covered by workers’ compensation insurance. But the Mississippi Supreme Court said that case was different and involved workers’ comp laws that are broad in scope and must be liberally construed, and that the air-pump injury happened during work hours, on the employer’s premises.

“Here, Partridge’s actions occurred after work hours, off his employer’s premises, and while Partridge was on a substantial deviation from his work duties,” the justices wrote. “Indeed, Partridge’s use of the forklift was not ‘directly associated with the employment,'” and Murphy’s forklift itself did not cause the accident.

Penn-Star attorneys Joshua Wiener and Donna Brown Jacobs, with the Butler Snow law firm in Jackson, argued that if the trial court’s logic were upheld, an insurer would have to cover other extracurricular activity.

“Under the [trial court]’s interpretation, if Partridge had borrowed Murphy’s portable welder on the weekend and set a third party’s building ablaze, that too would be covered by the policy,” Penn-Star noted.

The Supreme Court agreed with that reasoning.

“The losses sustained by the Thompsons do not arise out of or relate to the Murphy’s Welding business operations,” Justice Griffis wrote. “Consequently, the commercial general liability policy issued by Penn-Star to Murphy’s Welding does not provide coverage for the Thompsons’ injuries.”

Topics Auto Liability Mississippi