Ulrich v. United Services Auto. Ass'n
Annotate this Case
Ulrich v. United Services Auto. Ass'n
1992 WY 128
839 P.2d 942
Case Number: 92-6
Decided: 10/08/1992
Supreme Court of Wyoming
Lawrence M. ULRICH, Appellant (Plaintiff),
v.
UNITED
SERVICES AUTOMOBILE ASSOCIATION, Appellee (Defendant).
Appeal from District Court, SubletteCounty, Elizabeth A. Kail,
J.
William R.
Fix of Fix & Mulligan, Jackson, for
appellant.
Richard
P. Boley and Peter K. Michael of Boley & McKellar, P.C., Cheyenne, for appellee.
Before
MACY, C.J., and THOMAS, CARDINE,
URBIGKIT* and GOLDEN,
JJ.
* Chief Justice at time of oral
argument.
GOLDEN, Justice.
[¶1.] Lawrence B. Ulrich
(Ulrich) filed a complaint against his automobile insurance carrier, United
Services Automobile Association (USAA), seeking a declaration that the uninsured
motorist (UM) provision of his liability policy provided coverage for injuries
he sustained in a parking lot shootout. After a hearing on cross-motions for
summary judgment, the district court determined that Ulrich's injuries did not
"arise out of the ownership, maintenance or use of the uninsured motor vehicle,"
as required by Ulrich's USAA policy. The district court accordingly issued an
order which granted to USAA its motion for summary judgment. Ulrich appeals from
the district court's order. We will affirm.
ISSUES
[¶2.] Ulrich presents the
following issue for our review:
I. Do
genuine issues of material fact exist as to whether appellant's injuries arose
out of the "ownership, maintenance or use" of the uninsured motor vehicle
precluding the entry of summary judgment?
USAA
restates the issue in this manner: Whether the intentional shooting of an
insured by an uninsured motorist in a parking lot can be said to arise out of
the assailant's use of his uninsured motor vehicle.
FACTS
[¶3.] The facts of this case,
drafted in the light most favorable to Ulrich, are as follows: On July 29, 1989,
Ulrich and an acquaintance, Glenn Hildebrant, were drinking at the Cowboy Bar in
Pinedale, Wyoming. While at the bar, Ulrich became upset
with the unlady-like conduct of a bar patron, Kemo. Ulrich reproved Kemo for her
conduct and a verbal confrontation ensued.
[¶4.] Kemo and her companion,
Gus Stallings, left the bar shortly after the verbal confrontation. Ulrich
dismissed the whole situation as mere "bar talk" and did not expect anything
further to develop. However, when Ulrich and Hildebrant left the bar, Kemo
approached shouting obscenities and began "putting a hurt on" Ulrich. Ulrich
attempted to repel the attack by pushing Kemo aside, but was unsuccessful. The
altercation continued, both combatants being egged-on by their sidekicks.
Stallings then joined the assault by "sucker-punching" Ulrich a couple times
from behind. Stallings' conduct so enraged Hildebrant that he intervened and
proceeded to put "a whipp'n" on Stallings. At approximately this point in the
melee, a bystander yelled "Hey, the cops are coming." The members of the crowd
that had gathered "scattered like rats," and the fight came to an abrupt end.
All parties to the fracas apparently walked away without
incident.
[¶5.] Two weeks later, on
August 12, 1989, Ulrich again found himself in the Cowboy Bar, this time
accompanied by Darrin Hill. Ulrich and Hill had just attended a Little Britches'
Rodeo and had stopped for a few beers before returning home. While at the bar,
two fellows dressed in white and wearing fruit baskets on their heads invited
Ulrich and Hill to a private toga party. Ulrich and Hill subsequently left the
bar in Ulrich's Bronco. Hill was driving as he knew where the toga party was
being held. While on the way, Hill decided to stop at the Trailside Convenience
Store to purchase some cigarettes. He parked Ulrich's Bronco between the front
entrance of the store and the gas pumps. Hill then went into the store for his
cigarettes, and Ulrich exited the Bronco to put some air in the right front
tire.
[¶6.] As Ulrich was putting
air in his tire, a Toyota pickup with a camper shell pulled
directly in front of and perpendicular to Ulrich's Bronco. The Toyota was positioned so
as to block the Bronco's means of forward egress. Ulrich glanced upward and
instantly recognized the occupants of the Toyota as Stallings and Kemo. Stallings
immediately began yelling at Ulrich about the Cowboy Bar incident, stating he
intended to get even. Ulrich countered by informing Stallings that he had no
"beef" with him and, nicely put, by directing him to move his truck. Hill exited
the Trailside as this exchange was in progress. Believing that the controversy
was over the parking location of Stallings' truck, Hill also chimed in with his
two cents worth. Stalling became enraged upon seeing Hill, who he mistakenly
believed to be Hildebrant, and continued his threats to get
even.
[¶7.] Ulrich and Hill then
jumped into the Bronco. Somewhat confused, Hill excitedly asked "What's going
on?" Ulrich explained, "He [Stallings] thinks you are Glenn [Hildebrant], the
guy that beat him up a couple weeks ago at the fight." As Hill looked up after
starting the Bronco, he noticed that Stallings' truck was no longer blocking the
way. In an attempt to get a better angle, Stallings had backed up and pulled
parallel to the Bronco. Only the gas pumps separated the vehicles which,
although parallel, were facing opposite directions. Stallings was leaning over
his passenger, Kemo, and was pointing the business end of a chrome plated
handgun at Hill and Ulrich. Stricken with fear, Ulrich shouted, "We don't want
no trouble. Don't be a fool." Ulrich also tried to explain that Hill was not
Hildebrant. Stallings would not listen and informed Ulrich to shut up or he,
Stallings, would take care of him too.
[¶8.] Stallings next got out
of his truck with the handgun. It simultaneously occurred to Hill that Ulrich
had a .44 caliber pistol and ammunition in the Bronco. As Hill and Ulrich were
securing the pistol and ammunition, Stallings scurried around the back of his
truck to a position approximately twelve to fifteen feet in front of the Bronco.
Stallings then fired at least one shot at Hill and Ulrich, but did not hit
either one of them. In response, Hill handed to Ulrich his loaded .44 caliber
pistol. Stallings took cover on the driver's side of his truck and, unbeknown to
Hill and Ulrich, switched his handgun for a shotgun. Hill, in the meantime,
engaged the Bronco's transmission and began to speedily leave the parking lot.
Just as the cab portion of the Bronco cleared the driver's side of Stallings'
truck, Stallings, who was leaning against his truck, fired several shotgun
blasts at the Bronco's tires and, after allegedly being shot in the leg by
Ulrich, "shot one more time at the guy, or the passenger of the vehicle . . .
[hitting] him in the face with the shotgun."1
[¶9.] Hill and Ulrich
proceeded out of the parking lot and headed south of town, apparently fearing
that Stallings would give chase. Stallings, however, did not follow.
Consequently, Hill pulled into a gas station just outside of the Pinedale city
limits to evaluate the extent of Ulrich's injuries. After determining that they
were serious, Hill returned to Pinedale to seek medical attention. A local
doctor was initially consulted and recommended that Ulrich be transported to
Salt Lake City, Utah, for further treatment. Ulrich's right
eye was surgically removed at the Utah hospital, as were the pellets that were
lodged in his face and right hand.
[¶10.] After discovering that Stallings was an
uninsured motorist, Ulrich submitted a first party claim to his insurance
carrier, USAA, for uninsured motorist (UM) benefits. USAA denied Ulrich's claim
on the ground that his injuries did not "arise out of the ownership, maintenance
or use of the uninsured motor vehicle," as required under the policy. Ulrich
then filed a declaratory judgment action against USAA in district court to
resolve the coverage dispute. After a hearing on cross-motions for summary
judgment, the district court also determined that UM coverage did not exist.
Specifically, the district court concluded that Ulrich's injuries did not arise
out of Stallings' use of his vehicle, as the vehicle was merely the "situs" of
the shooting. The district court accordingly granted summary judgment to USAA.
This appeal followed.
STANDARD
OF REVIEW
[¶11.] When reviewing the propriety of a summary
judgment, this court examines the record from the vantage point most favorable
to the party opposing summary judgment to determine whether there exists a
genuine issue of material fact to preclude disposition of the case as a matter
of law. A genuine issue of material fact exists when a disputed fact, if proved,
would have the effect of establishing or refuting an essential element to the
cause of action or defense asserted by the parties. If upon such review no
genuine issue of material fact is found to exist, we will uphold a summary
judgment under any legal theory properly supported by the
record.
Evansville v. Suomi, 836 P.2d 325, 328 (Wyo. 1992) (citation
omitted).
DISCUSSION
[¶12.] A review of the record from a vantage
point most favorable to Ulrich fails to disclose a genuine issue of material
fact which would preclude the disposition of this case as a matter of law. The
record reflects that Ulrich was the only person deposed in connection with this
case. Ulrich and USAA subsequently filed cross-motions for summary judgment on
the UM coverage issue. Ulrich's motion was supported by his deposition
testimony, by his affidavit, and by the affidavit of Darrin Hill. Ulrich's
motion was later supplemented by a portion of Gus Stallings' testimony as
transcribed at his criminal arraignment. USAA did not submit any documentation
with its motion to controvert Ulrich's factual assertions. Rather, USAA's
position throughout has been that the facts, viewed in Ulrich's favor, fail to
give rise to a claim of UM coverage as a matter of law. Given USAA's position,
we perceive no factual dispute to be resolved by a jury and proceed to resolve
this case as a matter of law. See State Farm Fire and Cas. Co. v. Paulson, 756 P.2d 764, 766 (Wyo. 1988).
[¶13.] Resolution of this case requires that we
confront two interrelated legal issues. We must first determine if Wyoming's Uninsured
Motorist Act (WUMA), Wyo. Stat. §§ 31-10-101 to -104 (1989), requires insurance
carriers to offer UM coverage which would extend to the circumstances of this
case. This line of inquiry is dictated by recognition that insurance may not be
offered in contravention of the minimum statutory requirements. 8C John A.
Appleman & Jean Appleman, Insurance Law and Practice § 5069.35 (1981). If
the first issue is not resolved affirmatively, we must direct our attention to
the UM provision of the parties' insurance contract. Our objective then becomes
to determine the scope of UM coverage intended by the parties and to give effect
to such intent. Commercial Union Ins. Co. v. Stamper, 732 P.2d 534, 539
(Wyo.
1987).
1.
Wyoming Uninsured Motorist
Act.
[¶14.] An accurate understanding of the scope
and intent of Wyoming's Uninsured Motorist Act (WUMA) is best garnered by
briefly reviewing its relationship to Wyoming's Motor Vehicle
Safety-Responsibility Act (WMVSRA), Wyo. Stat. §§ 31-9-101 to -414 (1989).
WMVSRA, in a nutshell, provides that each person involved in a "motor vehicle
accident" must submit proof of financial responsibility2 to the Department of Transportation
within thirty days of the Department's receipt of the accident report.
Wyo. Stat. § 31-9-103 (Supp. 1992) and
Wyo. Stat. §
31-9-202 (1989). Failure to submit proof of financial responsibility within the
requisite time period results in suspension of both driving privileges and
vehicle registration. Wyo. Stat. § 31-9-202 (1989). While proof of
financial responsibility may be demonstrated in various ways, the thrust of
WMVSRA is to encourage motorists to procure and maintain automobile liability
insurance so that victims of "motor vehicle accidents" will have a reliable
source from which to seek compensation for their injuries. See generally, Wyo.
Stat. §§ 31-9-101 to -414 (1989 & Supp. 1992).
[¶15.] The legislature, cognizant of the fact
that not all motorists would carry liability insurance, passed WUMA as a
necessary companion to WMVSRA. WUMA § 31-10-101 furthers the legislature's
compensatory objective by requiring insurance carriers to offer UM coverage with
every liability policy issued in Wyoming, unless such coverage is specifically
rejected by the insured.3 If UM coverage is purchased, the
net effect is to place a person injured by an uninsured motor vehicle in
essentially the same position that he would have been in had the uninsured
motorist carried liability insurance as prescribed by WMVSRA. Glenn E. Smith,
The Wyoming
Uninsured Motorist Act: A Regulatory Reconciliation of Mandated Coverages with
the Standard Uninsured Motorist Endorsement, 11 Land & Water L.Rev. 213, 215
(1976).
[¶16.] Specifically addressing § 31-10-101, this
court has stated:
[T]he
purpose of uninsured-motorists insurance coverage is to provide to innocent
automobile accident victims an opportunity to procure a means of insulating
themselves from damages incurred as a result of unfortunate and far too
frequently occurring automobile collisions with uninsured
motorists.
Stamper,
732 P.2d at 537 (emphasis in original).
[¶17.] Applying the plain and ordinary meaning
to the terms "motor vehicle accident," "automobile accident," and "automobile
collisions," we perceive no legislative intent which would require insurance
carriers to be answerable under the UM coverage mandated by statute for injuries
sustained from instrumentalities other than motorized vehicles, i.e., for
injuries inflicted by gun, knife, club, fist, etc. during an intentional
criminal assault. See Cerullo v. Allstate Ins. Co., 236 N.J. Super. 372, 565 A.2d 1125, 1127-28 (1989) (interpreting legislative intent underlying New Jersey
UM statute). Consequently, we proceed to the second stage of our
analysis.
2.
Insurance Contract.
[¶18.] Parties to an insurance contract are free
to bargain for coverage greater than that mandated by statute, unless contrary
to public policy. See Stamper, 732 P.2d at 536. The public policy prohibition
against procuring liability insurance for intentional misconduct is not
applicable in this context. UM insurance is a form of casualty, rather than
liability insurance. 3 Rowland H. Long, The Law of Liability Insurance § 24.02
(1991). Accordingly, we look to the USAA policy to determine whether the
"casualty" which befell Ulrich is among the risks which the parties reasonably
intended to be covered by the UM provision of their contract. 6B Appleman, supra
§ 4317.
[¶19.] The UM provision of the USAA policy
provides:
We will
pay compensatory damages which a covered
person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of BI [bodily injury] sustained by a covered person and caused by an
accident.
The
owner's or operator's liability for these damages must arise out of the
ownership, maintenance or use of the uninsured motor
vehicle.
[¶20.] The parties do not dispute that Ulrich
was a covered person within the meaning of the policy; that he would legally be
entitled to recover from Stallings for his injuries; that Stallings' vehicle was
uninsured; or that Ulrich's injuries, when viewed from his perspective, were
accidentally incurred. The sole matter at issue is whether Ulrich's injuries
"ar[o]se out of the ownership, maintenance or use" of Stallings' uninsured motor
vehicle.
[¶21.] In Worthington v. State, 598 P.2d 796
(Wyo. 1979), this court set forth an analysis for construing an "arising out of
the ownership, maintenance or use" clause in a liability insurance policy which
we believe is equally applicable to the same or similar clause of an UM
insurance provision. The Worthington case originated from an automobile
accident which occurred on a state highway that had been recently resurfaced.
Mark Scott had been traveling eastbound on the highway when his vehicle broke
down, forcing him to pull off onto the highway's shoulder. Kelly Worthington,
noticing Scott's predicament, pulled nose-to-nose with the Scott vehicle to
illuminate the area while Scott tried to fix his vehicle. As Scott was standing
between the two vehicles and Worthington was seated in her vehicle, the
Scott vehicle was hit from behind by Edward Malar, a partially blind motorist.
The impact propelled the Scott vehicle into the Worthington vehicle. Scott lost both legs as a
result of being pinched between the vehicles; Worthington sustained a severe neck injury
which led to total paralysis. Malar explained that a dust storm, coupled with
the lack of road lines, caused him to wander off the road and collide with the
Scott vehicle.
[¶22.] Scott and Worthington, the plaintiffs, filed separate lawsuits
against the state of Wyoming to recover damages for their injuries.
They asserted that the state had waived immunity from suit to the extent that it
held liability insurance and that their injuries fell within the purview of such
insurance. The state's insurance policy obligated the
carrier:
To pay
on behalf of the insured all sums which the insured shall become legally
obligated to pay as damages because of
(A) bodily injury sustained by other
persons, and
(B)
property damage,
caused
by accident arising out of the
ownership, maintenance or use, including loading or unloading, of the owned
motor vehicle.
Worthington, 598 P.2d at
805-06 (emphasis in original).
[¶23.] The plaintiffs argued that, because state
owned vehicles were used to obliterate the road lines and because the
nonexistence of road lines was a contributing cause of the accident, their
injuries "ar[ose] out of" the use of the state owned vehicles. The court,
rejecting the plaintiffs' reasoning, set forth the following
analysis:
The
primary objective of interpreting an insurance contract is to ascertain what the
parties reasonably intended as its object and to ascribe to the terms used their
plain, ordinary and customary meaning in order to effectuate the intent of the
parties. When there are any ambiguities or uncertainties in the meaning of the
language used in a policy, they must be strictly construed against the insured
who drafted the contract. However, if the language is clear and unambiguous,
there is no room for the court to resort to a strict construction against the
insurer, and the insurance policy must be interpreted according to the ordinary
and the usual meaning of its terms.
Worthington, 598 P.2d at
806 (citations omitted).
[¶24.] Applying the foregoing rules of contract
construction, the court determined that the "arising out of" clause
unambiguously expressed the parties' intent that liability coverage existed for
injuries which resulted as a natural consequence from the use of an insured
vehicle. The court then expounded upon what has been coined the "natural
consequences" test as follows:
In determining whether
an injury arose out of use, the evidence must demonstrate that it was the
natural and reasonable incident or consequence of the use of an insured vehicle,
the causal connection being reasonably apparent. If the injury was directly
caused by some independent or intervening cause wholly disassociated from,
independent of or remote from the use of the automobile, the injury cannot be
held to arise out of its use. The resolution of the question necessarily depends
to a great degree upon the particular facts presented by each individual
case.
Worthington, 598 P.2d at
807 (citations omitted).
[¶25.] The Worthington court applied the "natural
consequences" test to the facts of the case to conclude that the plaintiffs'
injuries did not fall within the risks reasonably covered by the state's
liability insurance contract. The court noted that intervening acts of
negligence rendered any causal connection between the state-owned vehicles and
the plaintiff's injuries legally remote. Worthington, 598 P.2d at
809.
[¶26.] Before we apply the "natural
consequences" test to the instant case, it is necessary that we address Ulrich's
contention that the "some nexus" analysis applied in General Acc. Ins. Co. of
Am. v. Olivier, 574 A.2d 1240 (R.I. 1990), best reflects the parties' intent
regarding the scope of coverage provided by UM insurance. The "some nexus" test
basically provides that, absent an express provision to the contrary, UM
coverage will be found when there exists "some nexus" between the operation,
maintenance or use of an uninsured motor vehicle and the injury to the insured.
In Olivier, an uninsured motorist was involved in a fender-bender with a vehicle
in which Olivier was a passenger. As the police were conducting a post-accident
investigation, the enraged uninsured motorist intentionally shot and killed
Olivier as she stood along the roadside. The Rhode Island Supreme Court, relying
almost exclusively upon the "some nexus" case of Gov't Employees Ins. Co. v.
Novak, 453 So. 2d 1116 (Fla. 1984), held that there existed a sufficient nexus
between the accident and the shooting to find that Olivier's death "arose out of
the use" of an uninsured motor vehicle. Olivier, 574 A.2d at
1243.
[¶27.] We find the minority approach of Olivier
to be unpersuasive for several reasons. First, Olivier is factually
distinguishable in that the accident was the sole cause of the assailant's
fervor. In the case at hand, Stallings was primarily, if not exclusively, upset
about the physical altercation that had taken place at the Cowboy Bar. Second,
the Novak case relied upon by the Olivier court was not a UM coverage case, but
rather was a personal injury protection (PIP) insurance case. In Race v.
Nationwide Mut. Fire Ins. Co., 542 So. 2d 347 (Fla. 1989), the Florida Supreme Court
identified the differences between UM and PIP insurance and specifically
rejected an invitation to interject the Novak "some nexus" analysis into the UM
context. Third, and most importantly, because the use of an automobile has "some
nexus" to almost any action undertaken in society, it is our persuasion that the
test does not accurately reflect the intent of the parties regarding the scope
of UM coverage. See Gilbertson v. State Farm Mut. Auto. Ins., 845 F.2d 245, 248
(10th Cir. 1988).
[¶28.] Ulrich also urges this court to follow
the analysis in Wyoming Farm Bureau Mut. Insur. Co. v. State Farm Mut. Auto. Ins. Co., 467 F.2d 990 (10th
Cir. 1972). The Farm Bureau court applied essentially a "but for" test to an
"arising out of" clause of a liability insurance contract to find that coverage
existed for a pedestrian who was injured by shattering glass from a bottle which
was thrown from a passing vehicle. We believe that the "but for" test suffers
from the same deficiency as the "some nexus" test, i.e., it is overly broad.
Consequently, we adhere to the analysis set forth in Worthington, as it, and not Farm Bureau, is the definitive
expression of Wyoming law in this
area.
[¶29.] Consistent with Worthington, we hold that
the "aris[ing] out of" clause of the parties' UM insurance provision
unambiguously expresses their intent that coverage extend for those injuries
which occur as a natural consequence of the use of an uninsured motor vehicle.4 Applying the "natural consequences"
test to this case, we conclude the obvious: Ulrich's injuries did not occur as a
natural consequence of the use of Stallings' uninsured motor vehicle, but rather
occurred as a natural consequence of Stallings' intentional use of a loaded
firearm. Stallings' intentional act of shooting was an independent, intervening
cause of Ulrich's injuries which rendered Stallings' use of his uninsured motor
vehicle legally insignificant.5 Consequently, we hold that Ulrich's
injuries did not "arise out of the ownership, maintenance or use of an uninsured
motor vehicle" as required by the UM provision of his USAA liability insurance
policy.6 As we ended our analysis in
Worthington, we
end our analysis here: "The scope of coverage afforded by the type of insuring
clause in question must end at some point, and this case represents a point
well-beyond the line that must reasonably be drawn." Worthington, 598 P.2d at
809 (citing Asso. Independent Dealers, Inc. v. Mutual Serv. Ins. Cos., 304
Minn. 179, 229 N.W.2d 516, 519 (1975)).
DISPOSITION
[¶30.] The district court's judgment and order
which granted to USAA its motion for summary judgment is
affirmed.
FOOTNOTES
1 Gus
Stallings pled guilty to the crime of attempted manslaughter and was sentenced
to a term of confinement in the Wyoming State
Penitentiary.
2 Wyo. Stat. § 31-9-102(a)(xi) (1989)
provides:
"Proof of financial
responsibility" means evidence of ability to respond in damages from liability,
resulting from accidents occurring subsequent to the effective date of the
proof, arising out of the ownership, maintenance or use of a motor vehicle, in
the amount of twenty-five thousand dollars ($25,000.00) because of bodily injury
to or death of one (1) person in any one (1) accident, and subject to the limit
for one (1) person, in the amount of fifty thousand dollars ($50,000.00) because
of bodily injury to or death of two (2) or more persons in any one (1) accident
* * *.
3 Wyo. Stat. § 31-10-101 (1989)
provides:
No policy insuring
against loss resulting from liability imposed by law for bodily injury or death
suffered by any natural person arising out of the ownership, maintenance or use
of a motor vehicle shall be delivered or issued for delivery in this state with
respect to any motor vehicle registered or principally garaged in this state
unless coverage is provided therein or supplemental thereto, in limits for
bodily injury or death as provided by W.S. 31-9-102(a)(xi), under provisions
approved by the insurance commissioner for the protection of persons insured
thereunder or legally entitled to recover damages from owners or operators of
uninsured motor vehicles because of bodily injury, sickness or disease,
including death resulting therefrom. Unless the named insured requests the
coverage in writing, the coverage need not be provided in or supplemental to a
renewal policy where the named insured had rejected the coverage in connection
with the policy previously issued to him by the same
insurer.
4 The essence of the "natural
consequences" test is perhaps best captured by Appleman: "The accident [the
event giving rise to injury] must have arisen out of the inherent nature of the
automobile, as such." 6B Appleman supra § 4317 at 367-68.
5 Long comments in his treatise on
insurance law:
Clearly, there can be
no coverage under the uninsured motorist provisions where the injuries do not
arise out of the ownership, maintenance and use of a vehicle; therefore, no
recovery can be had where the injuries are the result of an assault or similar
intentional act where the instrumentality is not the automobile but rather is a
gun, baseball bat, fist or similar instrument since the injuries can be found to
have been caused by an intervening cause.
3 Long
supra § 24.15.
6 For intentional shooting cases in
which the courts have denied UM coverage, see, e.g., Wausau Underwriters Ins.
Co. v. Howser, 727 F. Supp. 999 (D.S.C. 1990); State Auto. Mut. Ins. Co. v.
Nichols, 710 F. Supp. 1359 (N.D.Ga. 1989); Fowler v. State Farm Mut. Auto. Ins.
Co., 548 So. 2d 830 (Fla.App. 1989); Curtis v. Birch, 114 Ill. App.3d 127, 69
Ill.Dec. 873, 448 N.E.2d 591 (1983); Hamidian v. State Farm Fire & Casualty
Co., 251 Kan.
254, 833 P.2d 1007 (1992); Kessler v. Amica Mut. Ins. Co., 573 So. 2d 476
(La. 1991);
McIntosh v. State Farm Mut. Auto. Ins. Co., 474 N.W.2d 227 (Minn.App. 1991);
Coleman v. Sanford, 521 So. 2d 876 (Miss. 1988); Roberts v. Grisham, 487 So. 2d 836 (Miss. 1986); Ford v. Monroe, 559 S.W.2d 759 (Mo. App. 1977); Sciascia v. American Ins. Co.,
183 N.J. Super. 352, 443 A.2d 1118 (1982); Kish
v. Central Nat. Ins. Group of Omaha, 67
Ohio St.2d 41,
21 O.O.3d 26, 424 N.E.2d 288 (1981).
CARDINE, Justice, dissenting, with whom
URBIGKIT, Justice,
joins.
[¶31.] I believe the law cited in the opinion of
the court supports a finding for appellant, and for that reason I would reverse
the summary judgment. The second altercation that resulted in Ulrich's injury
began with Stallings using his pickup to block Ulrich and Hill to prevent their
driving away from the service station. Stallings then moved his vehicle to
parallel with Ulrich. A reasonable inference a jury might draw from these facts
is that once having blocked Ulrich from leaving, Stallings moved his vehicle to
get a better shot at the Ulrich vehicle and to conceal himself from return
fire.
[¶32.] For Ulrich to be covered under the
uninsured motorist provision of his policy, his injury must "arise out of the
ownership, maintenance, or use of" the uninsured vehicle. The injury is held to
arise out of the use of the vehicle if
it was
the natural and reasonable incident or consequence of the use of an insured
vehicle, the causal connection being reasonably apparent.
Worthington v. State, 598 P.2d 796, 807 (Wyo. 1979). What is meant
by the quoted language in unclear. It could be held to mean that the natural and
reasonable consequence of the use of an insured vehicle is an accident involving
the vehicle. Or it could mean the incident which follows be reasonably expected
from the use being made of the vehicle, whatever that might be. I would hold the
latter.
Continuing,
If the
injury was directly caused by some independent or intervening cause wholly
disassociated from, independent of or remote from the use of the automobile, the
injury cannot be held to arise out of its use.
Id. In the fact scenario
of this case, it would be impossible to say that the cause of the injury was "wholly disassociated from, independent of or remote from the use of
the automobile." (emphasis added)
Finally,
it is said:
The
resolution of the question necessarily depends to a great degree upon the
particular facts presented by each individual case.
Id.
[¶33.] Nor do I conclude that Wyoming Farm
Bureau Mutual Ins. Co., Inc. v. State Farm Mutual Automobile Ins. Co., 467 F.2d 990 (10th Cir. 1972) states a "but for" rule. In this case a bottle was thrown
from an auto as the driver swerved the car. The bottle broke, causing an eye
injury to a bystander. The court stated:
[T]he
sole issue is whether as a matter of law the injury was an accident arising out
of the ownership, maintenance or use of the motor vehicle within the meaning of
the State Farm policy.
Id. at 993. The court
then stated:
The numerous cases
which have construed the clause that we have before us hold in effect, if not
directly, that the relationship between the use of the vehicle and the injury
complained of need not be a direct one. * * * The courts do scrutinize the facts
and require that the negligent act and the injury be fairly proximate. * *
*
* * *
In our case there is a "but for" connection and more. The evidence here is amply
sufficient to support a conclusion that the use of the automobile was a
substantial factor in the production of the injury.
* * * *
* *
* * *
[T]he causal relationship need not be a direct one; that it is sufficiently
connected if the act which causes the injury is incident to the use of the
vehicle. * * * We hold, therefore, that the breaking of the bottle and the
injury to Harvey
were not legally remote in relationship to the use of the
vehicle.
Id. at 993-95 (emphasis
added). The ownership/maintenance language has been used in these policies for a
long period of time without change. If the insurer wished to confine "use" to
incidents in which the insured automobile actually strikes a person or object
directly causing injury, it could do so easily. A failure to restrict "use" in
the policy demonstrates, for me, an intention to provide broad coverage beyond
that defined by the court in this opinion.
[¶34.] In this case, a jury could find that the
shooting was not "wholly disassociated from * * * the use of the automobile,"
was not "remote from the use," was a substantial contributing factor to the
injury, and, as then being used, the incident was reasonably to be expected. As
the Worthington
court said, "The resolution of the question necessarily depends to a great
degree upon the particular facts presented by each individual case." 598 P.2d at
807. Accordingly, I would reverse the summary judgment entered in this
case.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.