# FILED

May 28, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

______________________________________________ PLANET ROCK, INC., (f/u/b BOBBY AND VICKI WILLIAMS), Plaintiff-Appellee, Madison Circuit No. C96-348-II Vs. C.A. No. 02A01-9807-CV-00218 REGIS INSURANCE COMPANY, Defendant-App

ellant.

________________________________________________________ ____________________ FROM THE MADISON COU NTY CIRCUIT COURT THE HONORABLE FRANKLIN MURCHISON, JUDGE

Lawrence E. Levine, Dale A. Tipps; Levine, Mattson,

Orr & Geracioti o

f Nashville For Appellant Martin W. Zummach ; Sparkman-Zummac h of Southaven, MS For Appellees, Bob

by and Vicki Willia

ms

AFFIRMED AND REMANDED

Opinion filed:

W. FRANK CRAWFORD ,

PRESIDING JUDGE, W.S.

CONCUR: ALAN E. HIGHERS, JUDGE HOLLY KIRBY LILLARD, JU DGE This appeal concerns a dispute over coverage under a general liability insurance policy. Defendant/ap pellan t, Regis Insurance Company (Regis), appeals the order of the trial court granting summary judgment to plaintiff/appellee, Planet Rock, Inc. (Planet Rock) f/u/b Bobby1 The suit namedas defendants Be njamin Blackwell a

nd Kimberly Ann Le

wis (the other parties involved in the altercation), Gilligan’s Inc., another Jackson nightclub, and the individually

named stockholders of Planet Rock. Except for the allegatio

ns against Blackwe

ll and Lewis, the involvement of parties other than Planet Rock was not relevant to the issues in this case. 2 and Vicky Williams

. Planet Rock is a Jackson, Tennessee nightclub, and on September 29, 1 995, an alterc ation occurred between two of Pla net Rock’s patron

s. Craig Williams (W

illiams) and Benjam

i n Blackwell

(Blackwell) got into a heated argument inside the club. After moving the argument outside to a nearby Kmart parking lot, they began fighting. Williams received the worst of the exchangeand was knocked unconscious. He was brought back into Pl anet Rock by the nightclub’s employees and pos sibly some pa trons and placed on a couch in one of the club’s offices to rest. When Planet Rock employees later checked on Williams, they found that he had died from his injuries. Bobby and Vicky Williams , parents of Craig Williams, sued Planet Rock and others 1 in Madison CountyCircuit Court seeking damages for their son’s wrongful death. As pertinent to the case before us, the

complaint alleges

that when the disa

greement arose

between Williams and Blackwell,they were ordered to get out of the club “if they were to begin striking each other,” and they left the c

lub. The complaint s

tates: 19. Ultimately, the phy si cal confrontation began between Plaintiffs’ deceased and D efendants B lack well and Lewis. The physical confrontation resulted in P laintiffs’ deceased being knocked unc onscious by Defendants Blackwell and Lewis and then viciously and violently kicked in the head, torso and groin by Defendants Blac

kwell and Lewis. 20. At the conclusi

on of thi s vicious attack by the Defendants Bl a ckwell

and Lewis, but before Plaintiffs’ deceased expired, patrons and employees of Def endan t Planet Rock brought the Plaintiffs’ dece ase d, Craig Williams, back inside the establishment of Defendant Planet Rock. 21. At no tim e, while Craig Williams was still alive and physically

situated within

the offices of

Defendant Planet Rock, didany agent, employee or servant of Defendant Plane

t Rock call for medical assistance. In fact, an employee of Defendant Planet Rock called and canceled a request for police assistance after the fight had begun. 22. Sometime later and without the benefit of medical assistance, the Pl aintiffs’ decea

sed, Craig Williams , died of the injuri es h e received in the vicious attack conducted by D efe ndants Blackwell and Lewis.3 * * * 42. Upon being informed of the serious injuries to the deceased, Defendant

Planet Rock, by and through its age nts , servants or employees,voluntarily undertook the medical care of theinjured Crai g Williams. Defendant Planet Rock, by and through it s agents, servants or

employees, undertook the medical care of the injured Craig Williams in a grossly negligent manner, failing or refusing to make available professional medical assistance which was available, thereby denying the deceased proper medical care ultimately

le ading to and proximately causing his death. The m edic al care provided b

y Defendant Plane

t Rock’s employee

s, agents or servants fell below the minimum acceptable standard

of medical care recogniz

ed in like or similar

circumstances in Jackson, Madison County, Tennessee by those health care professionals familiar with said standard of care. At the time of the occurrence in volving Blackwell a

nd Williams, Planet R

ock had in full force and effect a general liability insurance policy issued by Regis Insurance Company. Pursuant t o the terms and provisions of the policy, Planet Rock notified Regis of the original incident involving Blackwel

l and Williams, and after the lawsuit was filed, notified Regis of the lawsuit. Regis responded to the latter notification by le tter dated December 13, 1995, which states in pertinen

t part: Please b e advised that we have received a copy of the above captionedCivil Action Complaint which was filed against Planet Rock, et al. We hav e c arefully reviewed the averments contained with in the Complaint and fi nd that all the clai

ms and causes o

f action and damages sought are specifically excluded under policy RM 113721. Your records will indicated [sic] that on 10/11 / 95 you reported to Reg is Insurance Comp any the claim of Cr

aig Williams. At that time, Regis Ins urance Company commenced an investigation into this matter and determined that the plaintiff was alleging that the c

ause of his death

was as a result

of injuries sustained from an Assault and Battery. Under the d ate of 11/15/95, Regis Insurance Company sent to you a Reservation of Rights advising you that policy No. RM 113721, under which you seek coverage contained an Assault and Battery Exclusion.

* * * Thus, we regr etfully advise you that Regis Insurance Company declines to particip ate in either the def

ense or indemnification of this lawsuit. We suggest that you immediately

forward this m

a tter on to your per

sonal counsel to see that your interests are properly protected. (emphasis supplied). Again, on January 3, 1996, Planet Rock’s counsel sent a letter to Regis pointing out the4

allegations of negligence against Planet Rock which were outside the exclusions in the policy. Regis res ponded by let ter stating: “Our position which was stated in our letter of 12/13/95 remains unchanged.” P lane tRock defended the suit and after pretrial procedures, the case was tried on September

20, 1996 by the court sitting without a jury. The trial court’s judgment in favor of the Plaintiffs state

s in pertinent par

t: 1) That the evidence presented support s Plaintiffs’ contentions that Defend a nt, Blackwell, inte ntionally battere

d the Plaintiffs’ dece ased, Craig Williams, causing him pain and injury. T h e Courtassesses damages against the Defendant, Blackw ell, arising out of Blackwell’s attack on Plaintiffs’ deceased in the amounts of $150,000.00 compensatory damages, and because the a ttac k was particularl

y ferocious, $150

,000.00 punitive da

mages. 2) The Court further

finds th at th e evidence pre sented supports the Plaintiffs’ contentions in t hat Pl aintiffs suffered damages as a proximate

resu lt of the negligence of the Defendant, Planet Rock, Inc. Specifical

ly, Planet Ro ck, Inc ., by and through its employee, Scott Luckman, ac ting within the scope

of his employment,and about th e bu siness of Planet Rock, Inc., voluntarily

undertook the duty of medical care and custody of the Plaintiffs’ deceased, Crai

g Williams, after Mr

. Williamshad been injured, doing so in a negligent fashion failing to render the appropriate

medical care for Mr. Williams’ i njuri es and further f ai ling to summon professio nal medical assist

ance, which, as

a matter of law, was the proximate ca use of Craig Willia

ms’ death inasmuch as, had medical care been called, and rendered to Craig Williams , the C ourt finds that Craig Williams would have survivedhis injuries that he suffered on the night of September 29, 1995. 3) It is further this Court’s find ing th at the damages awarded herein against Defendant, Planet Rock, Inc., are supported by the testimony relating to the ea rning capacity

and age of

the deceased in the determination

of the economic

value of Mr. Williams’ life, combinedwith the measure of pain and suffering experienced by the d eceased

prior to his demise b

rought about by the

failure to summon medical assistance. I T IS, THEREFORE, ORDERED, ADJUDGED AN D DECREED that the Plaintiffs are award ed aJudgment against Benjamin Blackwell, in the am ount of $150,000.00 compensatory and$150,000.00 punitive damages and post-judgment inter

est to accrue from the

date of entry of t

his Judgment. IT IS FURTHER ORDERED, ADJUDGED AND D E CREED that the Plaintiffs are awarded a Judgment against the Defendant, Planet Rock, Inc., in the amount of $1,250,000.00 and postjudgmentinterest to accrue from the date of ent ry of this judgment. T h e costs, to include court costs and discretionary costs incurred in this c

ause are assessed ag

ainst both Defendants, Blackwell and Planet Rock, Inc.2 The suit was orig inally fi led against Ryan and Davis, Inc., and Buddy Ryan individually, the agents that sold Plant Rock the policy. The suit was amended to add Regis and subsequently the suit against the agents was voluntarily dismissed. 5 * * * After judgment was rend

ered in the tort c

ase , Planet Rock , for the use and benefit of Bobby and Vicky Williams , filed the instant s uit against Regis 2 . In essence, Planet Rock alleges that it had in full

force and effect a general liability policy with Regis and that Regis breached its contract of insurance by failing to provide a defense in the tort case. The complaint further alleges that Regis breached the contract by failing and refusing to pay the judgment, interest, and

costs adjudged against

Planet Rock. The suit seeks judgment for costs incurred by Planet Rock in defending the tort

case and judgmen

t for the amount of

the judgment, costs , and interest in the

tortcase. The Regis p

olicy, upon which su

it is brought, provid

es in part pertinent to the inquiry before us: COVERAGE A -- BODILY INJURY LIABILITY * * * The company will pay on b ehalf of the insur ed all sums which the insur e d shall become legally obligated to pay as damages because of

A. bodily injury. . . * * * to which this insurance applies, caused by an occurrence, and the company shall have the rig ht and duty to defe

nd any suit against the insuredseeking damages on account of such bodily injury . .

., even if any of the allega

tions of the suit are

groundless,false or fraudulent,

and may ma

ke su ch investigation and settlement of any claim or suit as it deems expedient. . . .

* * * VII. INCIDENTAL MEDICAL MALPRACTICE

LIABILITY COVERAGE The definition of

bodily injury is amen

ded to include Incidental Medical Malpractice Injury. Incidental Medical Malpractice Injury means injury arising out of the rendering of or failure to render, during the policy period, the following service

s. (A) medical, surgical, dental, x- ray or nursing service or treatment or the furnishing of food or beverages in connection therewith;

* * * ASSAULT AND BATTERY EXCLUSION6 In consider atio n of the premium ch arged for this insurance, it is understood and ag reed that the poli

cy to which this endorsement is at

tached is amende

d and modified as f

ollows: Act ions and proceedings to recover damages for bo dil y in juries or property damage arising from the followingar e excluded from coverage a

nd the Company is unde r no duty t o defend or to indemnify an insure d in any action or proceeding alleging such dama

ges: 1. Assault

and Battery or

any act or omission

in connection with the prevention or

suppression of suc

h acts; 2. H armful or offensive contact between two or among two o r more persons;

* * * This exclusion applies

regardless o f the degree of culpability or intent and without regard to: A. Whether the acts are alleged to be by or at the instruction or at the direction of the insured, his officers, employees, agents or servants; or by any other person lawfu lly or otherwise on, at or near t he premises owned or occupied by the insured; or by any other person; B. The alleged fa

ilure of the insure

d or his officers , employees, agents or servants in the hiring, supervision, retention or control of any person whether or not an officer, em ployee, a gent or servant of the insured; C. The alleged fa

ilure of the insure

d or his officers , employees, agents or servants to attempt to prevent, bar or halt any such conduct. Regis’s answer to the complaint denies that Planet Rock was entitled to a defense of the suit and also denies that Planet Rock is entitledto recover the policy proceeds in payment of the judgment rendered against it by virtue of the assault and battery exclusion set out above. On June 12, 1998, the trial court enter ed its order granting summary judgment to Planet Rock. The order s

tated in part: I T IS, THEREFORE, ORDERED, ADJUDGED AN D DECREED AS FOLLOWS: 1. At the time

the Amended Complaint in Cause No. 95-338 was filed, the duty

on the part of Regis Insurance Company, to defend its i nsu red, Planet Rock, Inc., arose based upon allegations contained within sa

id Amended Complain

t; 2. After a trial upon t

he merits, the written findings of fact and law issued by the Trial Judge, Whit LaFon, in Cause No. 95-338, by its terms resulted in insurance coverage being extended for the damages for whichPlanet Rock, Inc. f ound itself liable

pursuant to the t erms o f the Regis Insurance policy, RM1137121, inasmuch as the trial judge h eld th at C raig Williams’ death was7 proximately

caused by Planet Rock, Inc.’s failure to make available appropriate medical care and further found that if Planet Rock, Inc. had made ap

propriate medic

al care avail

able , Craig Williams would have survived the injuries inf l icted upon him. Said failure on the part of

Planet Rock, Inc. to provide or render appropri ate medical aid for Craig Williams’ injuries was an act covered by the te

r ms of the policy issued by Regis Insurance Company to Planet Rock, Inc.; 3. by refu sing to defend its in sured, Planet Rock

, Inc., Regis InsuranceCompany is bound by the judgme nt rendered in

Cause No. 95-338 against Pla

net R ock, Inc. as to all issues supporting the Trial Court’s Order in Cause No. 95-338.

* * * Subsequently, on Jun

e 30, 1998, the cou

rt entered its fin

al order which sta

tes: 1. This Court earlier ruled that Defendant, Regis Insurance Company, breached its obli ga tion to its insured, Planet Rock, Inc., by failing to defe

nd its insured, Plane

t Rock, Inc., in Cau

se Number 95-338. 2. The allegations contained in theComplaint in Cause Number 95-338 styled Williams vs. Planet Rock, Inc ., e t al , triggered insurance coverage on the part of Regis Insurance Company and the duty to defend its insured, Planet Rock, Inc. 3. The Judgment rend

ered in Ca

use Numbe r 95-338 by the Honorable

Judge Whit LaFon found liability on the part of Planet Rock, Inc. the basis of which fe ll within the coverage of the insuranc e polic y issued by Regis Ins urance Company to

its insured, Planet Rock, Inc. 4. The Court now rule

s that the measure of dama ges for Regis InsuranceCompany’s failure to defend its insur

ed as obligated in its contract is contractual damage s. Said contractual damages amount to $1,0 00,0 00.00, the limit of said policy of insurance which was available to s atisf y the $1,250,000.00 Judgment rendered against Planet Rock, In c. in Cause number 95-338. Additionally, pursuant to its c o ntract of insura

nce, Regis InsuranceCompany isresponsible to pay post-judgment interest accrued from the date the und erly ing Judgment of Judge LaFon was rendered in Cause number 95-338. 5. For Regis’ failure

to defend, which has been determined to be wrongful, Regis InsuranceCompany is responsible and liable for the co sts of de fense which was incurred by the insured, Planet Rock, Inc. The only proof submitted to the Court on the question of defense costs is

the Affidavit of Lewis Cobb, Defense Counsel for Planet Rock, Inc. i

n the underlying su

it. Sai d costs, being uncontroverted, are found to have been rea

sonable and necessary under the circ umstance s and are to be re imbursed by Regis Insurance Company to its insured, Planet Rock, Inc. 6. Finally, pursuant to its contract of insurance, Regis Insurance Company is liable and responsible for court cos ts in C ause Number 95-338 to be supported by the bill of costs prepared b y the Circuit Court Clerk of Madison County.8 Regis has appealed and presents two issues for review, as stated in its brief: 1. The Trial Curt erred beca use Planet Rock is no

t entitled to judgment as a matter of law. 2. The Tri al Court erred be cause summary jud

gment is premature, as there are genuine issue s of m aterial fact that have not been resolved. We will first address

Regis’s second issu

e wherein it asse

rts that summary judgment is inappropriate

because there

are factual issues regarding the cause of Williams’s injury and death. We are somewhat mystified by this assertion for several reasons. In Planet Rock’s complaint, it is alleged that “

on or about September 29, 1995 , an altercation arose between M

r. Craig Williams and Mr. Benjamin Blackwell and Ms. Kimberl y Lewis. This altercation resulted in Mr. Craig Williams’s death. ” Regis’s answer to the complaint admit

s this allegation. Moreover, the trial court in

the underlying tor

t case found that Williams

was greviously inju

red by Blackwell andthat this led to his being placed under the care of Planet Rock. Finally, Planet Rock concedes tha t Black well’s assault and battery caused injuries to Williams that led to Planet Rock’s actions resulting in Williams’s death. We do not find a material factual dispute. Questions invo lving an insurance policy’s coverageand aninsurer’s duty to defend require the interpretation of the insurance policy in light of claims asserted against the insured. Standard Fire Ins. Co. v. Chester-O’Donley & Assoc., Inc. , 972 S.W.2d 1 ( Tenn. App. 1998). The issues relating to the scope of coverage and an insurer’s duty to defend present questions of lawwhich can be resolved by summary judgment when the relevant

facts are not in dispute. Id. at 5-6. Summary judg ment may be grante

d only when there are no genu ine material f actual disputes wi

th regard to the c

laim or the defen

se asserted in the motion, and when the moving party is e ntitle to a judgment as a matter of law. Tenn.R.Civ.P. 56.03; Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). In construing insura

nce contracts, t

his Co urt i s obligated to attempt to determine the intentof the contracti

ng parties, and be

cause the policy was drafted by the insurance company,

we must resolve any ambiguity anddoubt in favor of the insured. NSA DBA Benefit Plan, Inc.

v. Connecticut Gen. Lif

e Ins. Co. , 968 S.W.2d 791 (Tenn. App. 1997). Where the language of

an insurance policy

is reasonably

susceptible of two meanings, we are obligated to give the particular language the interpretation most favorable to the insured. Id . at 795. Ambiguity in9

a contract is doubt o

r uncertainty

arising from the possibility of the same langua

ge being fairly understood in more ways than one. Id. Regis asserts in its first issue that the assault and battery exclusion in t he policy is an absolute defense to this case inasmuch as there would have been no injury or d

eath to Williams but for the assault and battery. Planet Rock asserts that R

egis is liable for b

reach of its cont

ract of insurance in two respects: (1) a duty to defend; and (2) the obligation to indemnify. In Drexel Chemical Co. v. Bituminous Ins. Co. , 933 S.W.2d 471 (Tenn. App. 1996), the Court said: An insurer’s duty to defend is separate and distinct from the insurer’s obligation to pay claims under the policy. Jackson HousingAuth. v. Auto-Owners Ins. Co., 686 S.W.2d 917 (Tenn. App. 1984). The duty to d efend is broade

r than the duty to indemnify. This court must review the allegations of the complaint anddetermine whether any of them are covered under the policy. If even one of the allegations is covered by the policy, the insurer has a duty to defend, irrespective of the number of allegations that may be excluded by the policy. U. S. Fidelity & Guar. Co. v. Murray Ohio Manuf. Co., 693 F.Supp. 617 (M.D. Tenn. 1988). An insurer may not properly refuse to defend an action against its insured unless “it is plain from the face of the complaint that the allegatio

ns fail to state fa

cts that bring the c

ase within or potentially

within the policy’s coverage.” Glens Falls Ins . Co. v. Happy Day Laundry , Inc. , 19784 T.V., 1989 WL 91082 (Tenn. App. August 14, 1989). Id. at 480. The complaint in the tort

case alleged various and sundry acts on the part of Planet Rock andgiving the complaint a liberal con structi on would be cover ed by the policy pr

ovisions. Although the assault and ba ttery exclusion e

xists, it did

leave some doubt as to the meaning of “a r ising out of,” and the specific allegation concerning a failure to provide medical assistance made it more than questionable that allegations of the complaint “plead to the coverage.” Considering all of the circums tances, we fee

l that the allegati

ons were suffic

ient to require Re

gis to provide a defense to Planet Rock. We now turn to the indemnity coverage. Regis’s defense is premised on the assault and battery exclusionary clause. Regis asserts that no matter what else happened , i f there is an assault and battery that s

tarts the chain

of events, the bodily injury arises out of the assault and bat tery and therefore there is no coverage. In support of this assertion, Regis cites numerou s3 This case was not referred to by either party. 10 cases from other jurisdi

ctions regarding

the validity and ap

plicability of assa

ult and batt

er y exclusionary clauses. In those cases cited wherein the courts have discussed the key phrase, “arising out of,” the cour ts followed the vie

w that the causa

tion factor i s confined to one incident. While this view is ad opted by a number of courts in other jurisdictions, it does not represent the law in Tennessee. We have reached the conclusion that this case is controlled by t he decision of our Supreme Court in Allstat e Ins. Co. v . Watts , 811 S.W.2d 883 (Tenn. 1991) 3 , which is a de claratory judgment action fil ed by the insuranc

e company to dete

rmine whether it had an y liability unde r its homeowners policy which contained an exclusion of coverage for injuries arising out of the maintenance of a motor vehicle. The insuring clause of the Allstate policy provided: “Allstate will pay all sums a rising from an accidental loss which an insured person becom es legally obligated to pay as damages

because of bodil

y injury or proper

ty damag e covered by this part

of the policy.” Th

e applicable exc

lusion provides, “W

e do not cover bodi

ly injury or property

damage arising out of the ownership, maintenance, use, occupancy . . . loading

or unloading of any motorized land vehicle or trailer.” Id. at 884. The Allstate insured, Crafton,

was assisting a friend in rep lac ing brake shoes on the friend’s truck in the insured’s garage. While experiencing difficulty in removing lug nuts from one of the wheels, Watts, anothe r friend, agreed to use his welding torch to f acilitate the removal of the lug nuts. After Crafton assuredhim there were no flammable mater ials in th e garage, he starting using the torch. In doing so sparks scattered

on the garage floor and ignited a pan of flammable liquid which was under the truck. Watts noticed the fire and told the Crafton about it, and Crafton picked up the pan and started to move it out of the garage. Bec a use of the heat, he dropped it, splashing the flaming liquid on Watts and causin g an injury. Watts sued Crafton alleging that Crafton was negligent in failing to warn h

im about the flamma

ble liquids and also for his neglig ence in dropping the pan. Allstate then filed this declaratory judgment action after it denied coverage contending that Watts’s injur ies arose out of th

e maintenance of

an automobile and w

as within the policy exclusion. “The trial court, using the concur rent cause doctrine, held tha

t Allstate w as obligated to provide coverage to the policyholders. The Court of Appeals, using11

the chain of e vents doctrine, reversed.” Id . at 884. In reversing the Court of Appeals, the Su pr emeCourt noted with approval the holding in Almany v. Nationwide Ins. Co. , 1987 WL 4745, where the Middle Section of this Court, considering similar coverageand exclusion under

a homeowners policy held “that t he insurer was lia

ble under the ‘concurrent causation doctrine’ which provides that coverage under a liability po

licy is equally ava

ilable to an insured whenever an insured risk constitutes a concurrent proximate cause of the injury.” Id . at 886. The Courtnoted with

approval the decision in State Farm Mutual Ins. Co. v. Partridge , 10 Cal.3d 94, 109, Cal.Rptr. 811, 514 P.2d 123 (1973) where the C alifornia Supreme Court considered

coverage under a homeowners policy with the ex clusionary provision “arising out of the ownership, maintenance, oper ation, use . . . of any motor vehicle.” In that case, the insuredfiled the trigger mechanism of a pistol so it would have a hair trigger, an d while transporting the pistol in the insured vehicle, it discharged injuring a passenger. Commenting on the action of the California Court, our Supreme Court said:

The Calif o rnia Supreme Court held that the insurance company was liable, explaining that although the policy excluded injuries “a

rising out of the use” of an automobile, the exclusion didnot apply when an accident results from the combination of a nonvehicle-rel

ated cause and a

vehicle

- related cause. “Coveragecannot be defeated simply bec ause a separate excluded risk constitutes an additional cause of the injury.” Partridge , at 813, 514 P.2d at 125. The C ourt also stated: “

That mult

ip le causes may have effectuated the loss does not negate any single cause; that multiple acts

concurred in the infliction of the injury does not nullify any single contributory act.” Id . at 818, 514 P.2d at 130-31. Cf. Garvey v. St a te Farm , 48 Cal.3d 395, 257 Cal.Rptr. 292, 770 P.2d 704 ( 19 89). The concur rent cause doctrine has been followed in a number of jurisdictions other than in California. See, e.g., U.S. Fide lity & Guaranty Co. v. St ate Farm, 107 Ill. App.3d 190, 63 Ill.Dec. 14, 18, 4 3 7 N.E.2d 663, 667 (1982); LeJeune v. Allsta te Ins. Co. , 365 So.2d 471, 479 (La. 1978); Waseca Mut. Ins. Co. v . Nos ka , 331 N.W.2d 917, 921 (Minn. 1983); Eiche lber ger v. Warner , 290 Pa.Super. 269, 434 A.2d 747 , 751-52 (Penn. 1981 ); Lawver v. Boling, 238 N.W.2d514, 521-22 (Wis. 1976). See also , 7A J. Appleman, Insurance Law and Practice § 4500 at 179-81 (1979); 12 Couch on Insurance 2d (Rev. ed) § 44A (1984); Keeton, Insurance Law § 5.5(c) at 553-56. Id. at 887. Our Supreme Court continued:

While there are a variety of ways to analyze the problem before us, this Court is persuaded that the re should be coverage in a situation such as in the instant case, where a nonexcluded cause is a substantia

l fact or in producing the damage or injury,12 even though an exclude

d cause may have

contribute

d in som e form to the ulti mate result and, standing alone, would have properly invoked the exclusion contained in the policy. It is true that “arising out of” i

s an extremely br

oad phrase , so bro ad, in fact, that it is difficult to conceive of a rule that draws a justifiable line between coverage and no coverage at any reasonable

point. Adopting Allstate’s interpretation of “arising out of” to include any causal relation

ship would

exclude coverage if, for example, Watts had gone into Craf ton’s home to retri

e ve atool to aid in removing the lug nuts, and fell down a flight of stairs. Arguably, at least, maintai ning the vehicle would have set in motion the chain of events that produced the eventual result. That is,

but-for the difficulty encountered in maintaining the brakes on the truck, W atts would not have been inside of the home when he fell i n ord er to obtain the tool. Th

e problem with this a

pproach is th

a t cause and effect extend to near infinity. It is for this reason that we reflect the “chain of events” theory of appl ica tion which appears to hinge on a

“but-for” theory of causation utilized by the Court of Appeals and urged by Allstate. Id . at 887. Finally, the Court, in holding that the insurer must provide c overage under the homeowners policy, said:

We reject the contention that there can be no coverage when the chain of events leading to the ultimate harm is begun by an excluded risk , concluding instea d that coverage

cannot b e defeated simply beca us e excluded risks might constitute an additional cause of the injury. “T hat multi ple causes may have effectuated

the loss does not negate any single cause; that multiple acts concurred

in the infliction of injury does not nullify any single contributory act.” Partridge , 109 Cal.Rptr. at 818, 514 P.2d at 130. Id. at 888 (emphasis added). Accordingly, the order

of the trial court

is affirmed, and

this case is remanded for such other proceedings as may be necessary. Costs of the appeal are assessed to

the appellant.

_________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGHERS, JUDGE

____________________________________ HOLLY KIRBY LILLARD, JU DGE