Cung La v. State Farm Automobile Insurance Co.

830 P.2d 1007, 16 Brief Times Rptr. 882, 1992 Colo. LEXIS 453, 1992 WL 109669

• Court: Supreme Court of Colorado
• Decided: May 26, 1992
• Docket: 91SC349
• Status: Published

Opinions

Justice ERICKSON

delivered the opinion of the court.

We granted certiorari to review State Farm Automobile Insurance Co. v. Cung La, 819 P.2d 537 (Colo.App.1991) (State Farm). The issue before us centers on the interpretation of a State Farm automobile liability policy and the uninsured and no fault provisions in that policy. The petitioner, Cung La, was driving a white 1984 Mustang that was insured by State Farm when he was intentionally shot by a passenger in an uninsured motor vehicle. The court of appeals held that under the uninsured or no fault provision of the State Farm policy the petitioner did not sustain an injury from the use or operation of either the insured Mustang or the vehicle from which the shot was fired. We reverse and remand with directions.

I

On August 7, 1988, petitioner was driving eastbound on 1-70 in the insured Mustang when three motor vehicles boxed him in. The three vehicles, also eastbound on the freeway, took part in a maneuver that prevented petitioner from changing the speed or direction of the Mustang and enabled the assailant in one vehicle to shoot the petitioner. Petitioner’s vehicle was boxed in by one vehicle in front, one behind, and one on the left side of the Mustang. The assailant in the vehicle to the left of the Mustang fired a shot that went through the windshield of the Mustang and hit the petitioner in the head.

Evidence was presented that on July 31, 1988, the occupants of the assailant’s vehicle had been involved in an altercation with the petitioner and other individuals. During the fight, the assailant’s group threw rocks and bottles at the Mustang. The fight moved into a nearby restaurant, but the petitioner remained outside with his car to protect it. The shooting incident occurred on the freeway one week later.

According to an investigating officer, the petitioner was shot when the assailant’s group was “looking for an opportunity to shoot any one of the ... individuals” they had been in the altercation with the previous week. The investigator testified, and the petitioner contends, that the petitioner was not the primary target and that he was shot because he was driving the white Mustang that the assailant identified during the earlier altercation.

Petitioner filed a claim for no fault and uninsured motorist benefits under the automobile liability policy issued by State Farm.¹ State Farm sought a declaratory judgment to determine whether its automobile insurance policy on the vehicle provided coverage of the injuries the petitioner sustained in the shooting. The no fault personal injury provision in the insurance policy provides:

We will pay in accordance with the No-Fault Act[²] for bodily injury to an insured caused by an accident resulting from the use or operation of a motor vehicle as a motor vehicle....

The uninsured motorist provision of the policy states:

We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle.[³]

The trial court found that there were was no genuine issue of material fact and granted summary judgment for State Farm, which was affirmed by the court of appeals.

II

Summary judgment is proper only if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. “The moving party has the burden of establishing the lack of a triable factual issue, and all doubts as to the existence of such an issue must be resolved against the moving party.” Churchey v. Adolph Coors Co., 759 P.2d 1336, 1340 (Colo.1988); see, e.g., United States v. Jesse, 744 P.2d 491 (Colo.1987); Abrahamsen v. Mountain States Tel. & Tel. Co., 177 Colo. 422, 494 P.2d 1287 (1972).

III

The court of appeals concluded that, because the petitioner’s injuries were caused by the gunshot, they were not covered under the uninsured motorist provision of the State Farm policy. We disagree.

In order to determine whether summary judgment was proper on the petitioner’s claim under the uninsured motorist provision, we must determine whether evidence was presented that supports the conclusion that his injuries arose “out of the operation, maintenance or use of an uninsured motor vehicle.” The assailant’s use of a firearm to shoot the petitioner does not preclude th$ petitioner’s resulting injuries from having arisen out of the use of the uninsured motor vehicle if that vehicle contributed to the injuries and the injuries would not have been sustained but for the assailant’s use of the uninsured vehicle. A majority of the states that have dealt with the issue have found a sufficient causal connection under similar facts to invoke uninsured motorist insurance coverage. For example, in Continental Western Insurance Co. v. Klug, 415 N.W.2d 876 (Minn.1987), the Minnesota Supreme Court held that the injury to the insured, who was shot by another motorist as they both drove down the freeway, arose out of the use of the assailant’s uninsured motor vehicle. The court concluded that the assailant’s car was an active accessory to the assault because the assailant used the car to keep up with the insured for over two miles, used it to maneuver himself into position to shoot the insured, and was driving the car when he shot the insured. In Ganiron v. Hawaii Insurance Guaranty Association, 69 Haw. 432, 744 P.2d 1210 (1987), the Hawaii Supreme Court determined that the insured’s injuries arose out of the operation, maintenance, or use of the uninsured vehicle when the insured was shot by an unidentified passing motorist while driving on the freeway. See also Foster v. Lafayette Ins. Co., 504 So.2d 82, 86 (La.App.1987); Shouman v. Nationwide Ins. Co., 42 Ohio App.3d 159, 537 N.E.2d 696, 697 (1988); Willard v. Kelley, 803 P.2d 1124, 1131 (Okla.1990); Hulsey v. Mid-America Preferred Ins. Co., 777 P.2d 932, 937 (Okla.1989); General Accident Ins. Co. of America v. Olivier, 574 A.2d 1240, 1242-43 (R.I.1990); Detweiler v. J.C. Penney Casualty Ins. Co., 110 Wash.2d 99, 751 P.2d 282, 287 (1988).

Other courts have held that gunshot injuries arose out of the use of the insured’s automobile for purposes of automobile liability insurance coverage. The words “arise out of the ownership, maintenance, or use” have the same meaning in the uninsured motorist provision of a policy as they do in the liability provision of the policy. Irvin E. Schermer, Automobile Liability Insurance: No-Fault Insurance, Uninsured Motorists, Compulsory Coverage § 24.04, at 24-16.1 (2d ed. 1992 rev.); see Federated Mut. Implement & Hardware Ins. Co. v. Gupton, 357 F.2d 155, 157 (4th Cir.1966) (word “use” in uninsured motorist endorsement has same meaning as in general liability coverages). Section 10-4-609 requires insurers to provide protection against uninsured motorists, unless the insured waives that protection.

[T]he statute ... reflects a strong legislative intent to permit insureds who purchase such coverage to receive the benefits thereof to the extent necessary for full compensation for loss caused by the negligent conduct of financially irresponsible motorists.

Kral v. American Hardware Mut. Ins. Co., 784 P.2d 759, 765 (Colo.1989); see also Alliance Mut. Casualty Co. v. Duerson, 184 Colo. 117, 124, 518 P.2d 1177, 1181 (1974). Uninsured motorist coverage permits the insured to recover compensation for loss due to the negligent conduct of uninsured motorists in the same manner that recovery would be permitted for a loss due to the negligence of an insured motorist.

In State Farm Mutual Automobile Insurance Co. v. Davis, 937 F.2d 1415 (9th Cir.1991), an occupant in a vehicle shot and injured the driver of another vehicle while the vehicles were proceeding down the highway. The assailant’s automobile insurance liability policy provided coverage for injuries “resulting from the ownership, maintenance or use” of the insured vehicle.⁴ The Ninth Circuit Court of Appeals found use of assailant’s vehicle because the injury would not have occurred without the use of the vehicle. Id. at 1420; see also National Ben Franklin Ins. Co. v. Valdes, 341 So.2d 975 (Fla.1976) (trial court holding that death of person hit by beer mug thrown by passenger in insured automobile arose out of the ownership, maintenance, and use of the assailant’s automobile for purposes of automobile liability insurance policy did not conflict with prior Florida case law).

A few states have found no causal connection between an insured’s gunshot injuries and the uninsured vehicle from which the shots were fired. Wausau Underwriters Ins. Co. v. Howser, 727 F.Supp. 999 (D.S.C.1990); Kessler v. Amica Mut. Ins. Co., 573 So.2d 476, 477 (La.1991). In Wausau the South Carolina Supreme Court held that gunshot injuries inflicted by a passing motorist were caused by the gunshot, not by the assailant’s vehicle. 727 F.Supp. at 1001. We do not find the reasoning in those cases persuasive in Colorado.

Other cases finding no causal connection are factually distinguishable. In Azar v. Employers Casualty Co., 178 Colo. 58, 495 P.2d 554 (1972), this court held that an accidental shooting that occurred inside a vehicle did not “arise out of the use” of the vehicle for purposes of the automobile liability insurance policy. Id. at 61, 495 P.2d at 555. The vehicle in Azar was stopped and there was no contention that the vehicle either “contributed to or was connected” to the shooting. Id. at 60, 495 P.2d at 555; see also Mason v. Celina Mut. Ins. Co., 161 Colo. 442, 423 P.2d 24 (1967) (injuries sustained from discharge of pistol did not “arise out of the use” of automobile pistol was in for purposes of automobile liability insurance policy since vehicle was parked, engine was off, and vehicle did not occasion pistol’s discharge).

Florida Farm Bureau Insurance Co. v. Shaffer, 391 So.2d 216 (Fla.Dist.Ct.App.1980), held that the fact that the assailant was occupying the vehicle at the time of the shooting was merely incidental since the vehicle was used only to transport the assailant to the site from which the gun was fired and the vehicle was stopped. Id. at 218. There was not a sufficient causal relationship to invoke the provisions in the assailant’s automobile liability policy. The Florida court stated that there was no “showing that the automobile itself was used in some manner to cause or produce the injury.” Id.

In Kohl v. Union Insurance Co., 731 P.2d 134 (Colo.1986), we interpreted section 42-7-413(l)(c), 17 C.R.S. (1984), which provides the minimum level of coverage required for an automobile insurance liability policy. The language of section 42-7-413(l)(c) is similar to that in the State Farm uninsured motorist provision. Section 42-7-413(l)(c) requires the liability insurance policy “to insure every [insured] person on account of the maintenance, use, or operation of the motor vehicle.” ⁵ In Kohl we stated:

An accident occurs “on account of the use of a motor vehicle as a motor vehicle” if the injury that forms the basis of the claim is causally related to a conceivable use of the insured vehicle that is not foreign to its inherent purpose. Azar v. Employers Casualty Co., 178 Colo. 58, 495 P.2d 554 (1972); Mason v. Celina Mutual Insurance Co., 161 Colo. 442, 423 P.2d 24 (1967). To establish the requisite causal relationship, the claimant must establish that the accident would not have occurred but for the vehicle’s use [in a manner that is not foreign to its inherent purpose]. Titan Construction Co. v. Nolf, 183 Colo. 188, 515 P.2d 1123 (1973). See also Trinity Universal Insurance Co. v. Hall, 690 P.2d 227, 230 (Colo.1984). The claimant need not establish ... that the vehicle was the sole cause of the accident; it is sufficient that the claimants demonstrate that the injury “originated in,” “grew out of,” or “flowed from” a use of a vehicle. Azar v. Employers Casualty Co., 178 Colo. at 61, 495 P.2d at 555....

731 P.2d at 135-36 (footnote omitted); see also State Auto. and Casualty Underwriters v. Beeson, 183 Colo. 284, 288-89, 516 P.2d 623, 625 (1973). In Kohl, bystanders were shot when the insured was removing a rifle from the gun rack in the jeep. We held that, since the use of the jeep to transport hunters and firearms was a use of the vehicle and was not foreign to its design, the insured’s use of the jeep was causally related to the discharge of the rifle under the provisions of the automobile liability policy. 731 P.2d at 136.

Application of the uninsured motorist provision requires a causal connection between the uninsured motor vehicle and the injury. Here, the fact that the firearm contributed to the injuries does not preclude the requisite causal connection. Evidence was presented that it was more than incidental that the assailant was inside a vehicle when he shot the petitioner. At the time the shooting occurred, both the assailant’s vehicle and the petitioner’s vehicle were proceeding on 1-70. Without a vehicle and the assistance of two other vehicles, the assailant would not have been able to restrict the movement of the Mustang and shoot the petitioner.

The petitioner presented evidence that raised a material question as to whether the assailant’s use of the uninsured vehicle contributed to the shooting and to the petitioner’s injuries.

IV

The court of appeals also determined that the petitioner’s injuries did not result from the use or operation of the Mustang within the no fault provisions of the policy. We disagree. The no fault personal injury protection provision in the insurance policy provides:

We will pay in accordance with the No-Fault Act for bodily injury to an insured caused by an accident[⁶] resulting from the use or operation of a motor vehicle as a motor vehicle[⁷]....

(Emphasis added.) See § 10-4-706, 4A C.R.S. (1987) (amended 1991) (requiring personal injury protection for insureds).

The insured’s no fault insurance coverage for injuries sustained when the insured is shot while occupying a motor vehicle depends on the nexus between that motor vehicle and the insured’s injuries. See, e.g., Tuerk v. Allstate Ins. Co., 469 So.2d 815 (Fla.Dist.Ct.App.1985); Gajewski v. Auto-Owners Ins. Co., 414 Mich. 968, 326 N.W.2d 825 (1982), rev’g, 112 Mich.App. 59, 314 N.W.2d 799 (1981). In Tuerk the insured presented evidence that he was shot because the vehicle he was driving was mistakenly identified as someone else’s. The District Court of Appeal of Florida concluded that the attack “arose out of the use of that car” and that the insureds were entitled to personal injury protection coverage. Id. at 816. The court distinguished cases in which the vehicles were merely the situs of the attack and thus the attacks were unrelated to the use of the vehicles. Id. (distinguishing Doyle v. State Farm Mut. Auto. Ins. Co., 464 So.2d 1277 (Fla.Dist.Ct.App.1985), and Allstate Ins. Co. v. Famigletti, 459 So.2d 1149 (Fla.Dist.Ct.App.1984)); see also Washington v. Hartford Accident & Indemnity Co., 288 S.E.2d 343 (Ga.Ct.App.1982) (gunshot injury sustained by passenger on school bus did not arise out of the use of a motor vehicle for purposes of no-fault provisions of automobile insurance policy since there was no causal connection or relationship between use of the vehicle and the injury).

Similarly, in Gajewski, the Supreme Court of Michigan determined that there was a direct causal relation between the insured’s operation of his vehicle and his injuries. The insured was injured in his vehicle by an explosive device that was detonated when he turned the ignition key. 326 N.W.2d 825.

In State Automobile and Casualty Underwriters v. Beeson, 183 Colo. 284, 516 P.2d 623 (1973), we held that the injuries sustained by a passenger in a motor vehicle did not arise out of the use of a vehicle. A passenger in a station wagon was struck in the eye when keys to a pickup truck were thrown into the station wagon. The liability policies insuring the station wagon and the pickup truck required the insurer “to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as a result of injuries ‘arising out of the ownership, maintenance or use’ of the insured vehicle.” Id. at 288-89, 516 P.2d at 625. The causal connection between the injury and either the station wagon or the pickup truck was not sufficient to cause the injury to come within the meaning of “arising out of the use” of a vehicle. Id. The victim could just as well have been standing in the street at the same location. Therefore, although the victim was present in the station wagon when she was injured, her injury did not flow from or arise out of her presence in the automobile.

Evidence was presented that the assailant identified the petitioner by his presence in the Mustang and shot him because he was in the Mustang. The court of appeals stated, “Even assuming that the assailant was able to locate respondent only because he recognized his car, ... the ‘use’ of a car by an assailant as a means to locate or identify his victim is not an inherent use of a vehicle_” State Farm, 819 P.2d at 539-40. We believe the court of appeals misapplied the concept of use of a vehicle under the no fault provision. Under the facts here, the no fault provision applies to the petitioner’s use of his vehicle, not the assailant’s use of the Mustang, since the petitioner was the one operating the Mustang.

At the time of the shooting, the petitioner was driving and operating the vehicle in a manner not foreign to its inherent purpose. If, as the petitioner contends, the assailant identified and shot him because of the vehicle he was driving and would not have shot him but for his driving the vehicle, the injuries he sustained from the gunshot were causally related to his use of the vehicle. Thus, a material question of fact was raised as to whether the petitioner’s use of or presence in the vehicle was causally related to his injuries.

V

Accordingly, we reverse and remand to the court of appeals with directions to reverse the summary judgment for State Farm and to return the case to the trial court for further proceedings consistent with this opinion.

ROVIRA, C.J., dissents and VOLLACK, J., joins in the dissent.

1 . The Mustang the petitioner was driving when he was shot was owned by his father, Can La, and was insured by State Farm. Both the no fault and the uninsured motorist provisions of the State Farm policy state that an “insured” includes a person who sustains bodily injury while occupying the insured vehicle with the consent of the named insured.

2 . The “No-Fault Act” referred to in the policy is the Colorado Auto Accident Reparations Act, §§ 10-4-701 to -724 (1987 & 1991 Supp.).

3 .The petitioner filed a claim under the uninsured motorist provision on the basis that the identity of the driver or owner of the assailant’s motor vehicle was unknown. The State Farm policy provides that an uninsured motor vehicle includes "a 'hit-and-run' land motor vehicle whose owner or driver remains unknown and which causes bodily injury to the insured.”

4 . The court, in deciding to apply California law, stated that "arise out of the use” requires a slight causal connection in both California and Tennessee and that a reasonable person “would understand the phrase ‘resulting from the use’ of an insured vehicle to” require the same slight causal connection. 937 F.2d at 1419.

5 . In this case, there is no need to address the scope of the introductory phrase "arising out of’ as opposed to "on account of.” Both phrases indicate some causal connection between the injuries and the use, operation, or maintenance of the motor vehicle. The primary word to be interpreted is "use." See supra n. 4.

6 . Since the trial court granted summary judgment based on its determination that the shooting did not arise out of the use of the motor vehicle as a motor vehicle, it did not address whether an intentional shooting was an "accident” under the provisions of the policy. We do not address the "accident” issue.

7 . In Trinity Universal Insurance Co. v. Hall, 690 P.2d 227, 228-29 (Colo.1984), the insurance policy provided that the insurer would

pay, in accordance with the Colorado Auto Accidents Reparation Act, personal injury protection benefits for ... bodily injury sustained by an eligible injured person caused by an accident arising out of the use or operation of a motor vehicle as a motor vehicle.

We stated that the words “as a motor vehicle” were an impermissible limitation on liability if the insurer interprets those words in a way that limits the coverage required under the Colorado Motor Vehicle Reparations Act, §§ 10-4-701 to -723, 4 C.R.S. (1973 & 1983 Supp.).

We need not determine here whether State Farm intended to limit the coverage required under the Act by including the words "as a motor vehicle” since we find that the petitioner was using or operating the-motor vehicle as a motor vehicle.