United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-2373

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American Family Mutual Insurance *

Company, a Wisconsin corporation, *

*

Appellee, *

*

v. *

*

Co Fat Le; Dao T. Phan, husband * Appeal from the United States

and wife, and parents of Trai Van Le, * District Court for the

deceased, * Eastern District of Missouri.

*

Defendants, *

*

Kim T. Truong, mother of Dung Van *

Truong, deceased; Bao Luong, Hue *

Vu Luong, parents of Thanh Luong, *

deceased; Hoason Nguyen, mother of *

Quan Anh Ha, deceased; Duong *

Hguyen, father of Dan K. Nguyen, *

deceased; Joan Coulter, Defendant ad *

Litem for Trai Van Le, deceased, *

*

Appellants. *

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Submitted: December 14, 2005

Filed: March 3, 2006

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Before WOLLMAN, BEAM, and RILEY, Circuit Judges.

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1

The Honorable David D. Noce, United States Magistrate Judge for the Eastern

District of Missouri, to whom the case was submitted by consent of the parties

pursuant to 28 U.S.C. § 636(c).

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WOLLMAN, Circuit Judge.

American Family Mutual Insurance Co. (American Family) brought a

declaratory judgment action, seeking a determination that it was not required to

defend or indemnify the insured because the incident fell within the insurance

policy’s exclusions. The district court granted summary judgment for American

Family.1

 We affirm.

I.

American Family issued a homeowner’s insurance policy to Co Fat Le and Dao

T. Phan. Under the policy, Co Fat Le and Dao T. Phan’s son, Trai Van Le, was also

an insured. The policy excludes coverage for bodily injuries or property damage

“arising out of the ownership, supervision, entrustment, maintenance, operation, use,

loading or unloading of any type of motor vehicle.” It also excludes coverage for

bodily injury or property damage arising out of the use of controlled substances.

Trai Van Le owned a car that he parked in his parents’ garage. On the night

of April 28, 2001, Trai Van Le drove the car, which also held four of his friends, into

the garage and closed the garage door. Once inside the garage, Trai Van Le kept the

car’s motor running, as well as the air conditioning and the cassette player. The next

morning, Co Fat Le found the five boys dead in the car. The cause of death was

determined to be acute carbon monoxide intoxication, but acute

methylenedioxymethamphetamine (commonly known as ecstasy) intoxication was

determined to be another significant condition contributing to the deaths. The parents

of Trai Van Le’s four friends (Plaintiffs) sued Co Fat Le, Dao T. Phan, and Trai Van
2

The state court appointed Joan Coulter as Trai Van Le’s defendant ad litem.

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Le2

 (Defendants) in Missouri state court for the wrongful deaths arising out of the

incident. Count I alleged that Trai Van Le negligently used an automobile. Count

II alleged that Defendants were negligent in maintaining a dangerous condition on

their premises. Count III alleged general negligence by Defendants.

Trai Van Le’s automobile liability insurer settled with Plaintiffs on the claim

set forth in Count I of their petition. Co Fat Le and Dao T. Phan notified American

Family and requested that it provide a defense for Counts II and III under the terms

of their homeowner’s policy. American Family brought a declaratory judgment

action in the Eastern District of Missouri for a determination that it had no duty to

defend or indemnify Defendants because the claims were excluded under the vehicle

and controlled substances exclusions of the policy. The district court granted

summary judgment to American Family, stating that the policy's vehicle exclusion

applied to each of Plaintiffs’ claims, but that the facts failed to establish that the

controlled substances exclusion applied. The district court reasoned that because the

premises liability and general negligence claims were not incidental to the running

of the vehicle in the closed garage, the claims arose out of the use or operation of the

automobile. 

Plaintiffs and Defendants (collectively, Appellants) appeal, arguing that

because the duties Defendants owed to the decedents were not dependent on the use

of the motor vehicle, the doctrine of concurrent proximate cause applies and the claim

is covered by the homeowner’s policy.

II.

We review de novo the district court’s grant of summary judgment. St. Paul

Fire & Marine Ins. Co v. Schrum, 149 F.3d 878, 880 (8th Cir. 1998). Interpretation
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of an insurance policy is a matter of state law, and we review de novo the district

court’s interpretation of state law. Id. In determining the state law issue of insurance

policy coverage, we are bound in our construction of Missouri law by the decisions

of the Missouri courts. See id. Under Missouri law, the insured has the burden of

proving coverage, and the insurer has the burden of proving that an insurance policy

exclusion applies. Christian v. Progressive Cas. Ins,. Co., 57 S.W.3d 400, 403 (Mo.

Ct. App. 2001) (per curiam).

Missouri law provides that when an insured risk and an excluded risk constitute

concurrent proximate causes of an injury, a liability insurer is liable so long as one

of the causes is covered by the policy. Bowan v. Gen. Sec. Indem. Co. of Ariz., 174

S.W.3d 1, 5 (Mo. Ct. App. 2005). In determining whether this concurrent proximate

cause doctrine applies, we must ascertain whether the alleged covered cause is an act

independent and distinct from the excluded cause of the injury. Id. In the present

case, we must determine whether the allegations that Defendants kept an unsafe

premises and negligently failed to warn the decedents of the risk of harmful carbon

monoxide fumes were independent claims distinct from claims arising out of the

ownership or use of an automobile. We conclude that they were not.

In determining whether there are concurrent proximate causes of an injury,

Missouri courts examine whether each alleged cause could have independently

brought about the injury. See Hunt v. Capitol Indem. Corp., 26 S.W.3d 341, 345

(Mo. Ct. App. 2000); see also Prosser and Keeton on the Law of Torts (W. Page

Keeton ed., 5th ed. 1984). Under the concurrent proximate cause doctrine, an insured

seeking indemnification under a covered policy claim must be able to establish an

independent claim under that policy provision, while at the same time not relying on

an element of a claim that falls under the policy’s exclusion. See, e.g., Centermark

Props., Inc. v. Home Indem. Co., 897 S.W.2d 98, 103 (Mo. Ct. App. 1995)

(explaining that the ownership or use of an automobile, an excluded claim, was

independent from the claim of negligent supervision because it was not an essential
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element of the negligent supervision claim). For example, in Bowan v. General

Security Indemnity Co. of Arizona, 174 S.W.3d 1, a handicapped woman hired a

driving service to transport her to and from her workplace. The driver, as a result of

both his negligence and another driver’s negligence, was involved in a car accident.

The handicapped woman’s seatbelt was not fastened, and she was severely injured.

She sued, alleging that the driver was negligent in failing to make certain that her

seatbelt was fastened. The Missouri Court of Appeals held that this act of negligence

was distinct from the negligent use of the automobile, which was excluded under the

driving service’s insurance policy, because even if the driver had not operated the

vehicle negligently, the woman would still have been able to establish a claim for

negligence for the driver’s failure to make certain that her seatbelt was fastened. Id.

at 6. In contrast, in Hunt v. Capitol Indemnity Corp., 26 S.W.3d 341, the Missouri

Court of Appeals found no independent concurrent proximate cause for the injury.

In that case, a lounge patron was stabbed outside of the lounge. The stabbing victim

sued the lounge owner, claiming that he had negligently failed to protect the victim

from his assailants. The court, however, held that this act was not distinct from the

assault and battery, a claim that was excluded under the insurance policy, because

without the underlying assault and battery there would have been no injury and

therefore no basis for the stabbing victim’s action against the lounge owner for

negligence. Id. at 345.

Appellants first argue that Defendants negligently kept an unsafe premises and

that this was an independent cause of the decedents’ deaths. We disagree. Under

Missouri law, licensees such as the decedents can establish a claim against a property

owner for premises liability if they can show that: (1) a dangerous condition existed

on the property, (2) the property owner knew of the condition and realized that it

involved an unreasonable risk to the licensees, (3) the property owner had reason to

believe that the licensees would not discover the condition or realize the risk, and (4)

the property owner failed to exercise reasonable care to make the condition
3

Although Appellants refer to the decedents as invitees, we believe that the

record reflects that the decedents were social guests, which is a subclass of licensees

under Missouri law. See Carter v. Kinney, 896 S.W.2d 926, 928 (Mo. 1995) (en

banc).

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reasonably safe or warn the licensees of the condition and the risk.3

 See Gray v.

Russell, 853 S.W.2d 928, 930 (Mo. 1993) (en banc); Ryan v. Rademacher, 142

S.W.3d 846, 849 (Mo. Ct. App. 2004). Here, Appellants allege that the unsafe

conditions on the premises were an inadequately ventilated garage and a running

automobile in a closed garage. The former is not an inherently dangerous condition.

It became dangerous only when the automobile was left running in the garage while

the garage door was closed. The condition of a running automobile in an

inadequately ventilated garage is not independent from the use of an automobile,

which falls under the policy exclusion. Further, just as there would have been no

injury in Hunt if there were no assault and battery, there would have been no injury

in the case at bar if Trai Van Le had not run the automobile in the closed garage.

Therefore, as in Hunt, the allegedly dangerous condition was not an independent

cause of the decedents’ deaths. Similarly, Appellants’ premises liability claim for

running an automobile in a closed garage is not independent from the use of an

automobile, and thus it also falls within the policy exclusion. 

Appellants next argue that Defendants negligently failed to warn the decedents

of the risk of harmful carbon monoxide fumes. Appellants have not established that

Missouri law imposes a duty on property owners to inform their licensees of such a

danger when the licensees are not confronted with a running automobile in a closed

garage. Again, there would have been no injury if Trai Van Le had not run the

automobile in the closed garage. Accordingly, the failure to warn was not an

independent concurrent proximate cause of the decedents’ deaths.

Appellants contend that this case is no different from Columbia Mutual

Insurance Co. v. Neal, 992 S.W.2d 204 (Mo. Ct. App. 1999), and St. Paul Fire &
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Marine Insurance Co. v. Schrum, 149 F.3d 878, in which the courts found that there

were concurrent proximate causes for the plaintiffs’ injuries. In both of these cases,

however, the plaintiffs sought damages for the negligent supervision of a minor, not

for premises liability or general negligence. Negligent supervision of a minor is a

unique claim under Missouri law because “it is the obligation and ability to supervise

and control the child, not the instrumentality that caused the harm, that is the decisive

factor.” A.R.H. v. W.H.S., 876 S.W.2d 687, 689 (Mo. Ct. App. 1994). Negligent

supervision of a minor is thus a concurrent proximate cause of a child’s injury

regardless of the instrumentality that actually caused the harm. The Missouri Court

of Appeals has distinguished cases alleging the negligent supervision of a minor from

other concurrent proximate cause cases on this ground. See, e.g., Neal, 992 S.W.2d

at 208; see also Schrum, 149 F.3d at 880-81.

Finally, Appellants argue that this case is controlled by Centermark Properties,

Inc. v. Home Indemnity Co., 897 S.W.2d 98, because Defendants’ failure to supervise

the garage and Trai Van Le’s use of it is the same as Centermark’s failure to supervise

its employees. Similar to the situations in Neal and Schrum, however, the claim for

negligent supervision in Centermark did not depend on the cause of the eventual

harm, which was the third party theft of the company vehicle. That is not the case

here. Appellants’ claims are not incidental to claims arising out of the use or

ownership of an automobile. Moreover, Defendants have failed to establish that Co

Fat Le and Dao T. Phan had a duty to supervise Trai Van Le. Accordingly,

Appellants’ claims fall under the policy’s vehicle exclusion.

We conclude that Appellants’ claims for premises liability and general

negligence depend upon Trai Van Le’s use of the automobile. Appellants have

therefore not established concurrent proximate causes of the decedents’ deaths. The

insurance policy’s vehicle exclusion applies and Appellants’ claims are not covered

by the policy. Consequently, we need not reach the issue of whether the policy’s

controlled substances exclusion also applies.
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The judgment is affirmed. 

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