937 F.2d 1415 (9th Cir. 1991), 89-56044, State Farm Mut. Auto. Ins. Co. v. Davis

Docket Nº:89-56044.
Citation:937 F.2d 1415
Party Name:STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., a corporation, Plaintiff-Appellee, v. Walter Allen DAVIS, and Brian J. Painter, Defendants, and Charles R. Keukelaar, Shellie A. Keukelaar, Charles Rubin Keukelaar, a minor, by Shellie A. Keukelaar, his Guardian ad litem, Defendants-Appellants.
Case Date:July 01, 1991
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1415

937 F.2d 1415 (9th Cir. 1991)

STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., a corporation,

Plaintiff-Appellee,

v.

Walter Allen DAVIS, and Brian J. Painter, Defendants,

and

Charles R. Keukelaar, Shellie A. Keukelaar, Charles Rubin

Keukelaar, a minor, by Shellie A. Keukelaar, his

Guardian ad litem, Defendants-Appellants.

No. 89-56044.

United States Court of Appeals, Ninth Circuit

July 1, 1991

Argued and Submitted Nov. 7, 1990.

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William B. Hanley, McCormick, Kidman & Behrens, Costa Mesa, Cal., for defendants-appellants.

Richard C. Turner, Mary K. Lenahan, and Robert D. Brugge, Spray, Gould & Bowers, Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before D.W. NELSON and REINHARDT, Circuit Judges, and SINGLETON, [*] District Judge.

SINGLETON, District Judge:

State Farm Mutual Automobile Insurance Co. ("State Farm") brought this action in federal district court seeking a declaratory judgment. State Farm alleged that a policy of automobile insurance it had issued to Walter Allen Davis ("Davis") did not cover an incident where Davis shot and injured Charles Keukelaar ("Keukelaar"), the driver of another vehicle. Davis was a passenger in his own vehicle, a 1984 GMC van, when the incident occurred. The district court had jurisdiction based on diversity of citizenship, 28 U.S.C. Sec. 1332(a)(1) (1988). We have jurisdiction under 28 U.S.C. Sec. 1291 (1988).

In this case we are asked to determine whether a highway shooting "result[ed] from the ownership, maintenance or use" of the assailant's automobile. On the specific facts of this case, we conclude that the

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shooting did result from the use of the vehicle and therefore reverse a summary judgment absolving the automobile insurance carrier from liability to the Keukelaars.

BACKGROUND

The facts are not in dispute. Davis, a United States Marine, purchased a 1984 GMC van while residing in the State of Tennessee. State Farm issued Davis a policy of automobile insurance, covering the vehicle. Thereafter, Davis was transferred to the United States Marine Corps Air Station, Tustin, California. He retained the vehicle with its Tennessee license and registration, as well as his Tennessee driver's license.

Davis was scheduled for sea duty and wished to store some personal property including several handguns at his mother's home in San Jose, California. On November 23, 1984, Davis and two fellow Marines, Brian Painter ("Painter") and David Roberts ("Roberts"), were transporting this property in Davis's GMC van at the time of the shooting. Painter was driving and Davis was riding in the front passenger seat. Roberts occupied the rear seat. The three were proceeding north on Interstate Highway 5 when they were passed by a Corvette driven by Keukelaar. Shellie Keukelaar ("Shellie"), who was pregnant, was riding as a passenger in the Corvette. Davis told Painter to overtake and pass the Corvette. As the van approached the rear of the Corvette, Davis fired a .44 caliber revolver out his window striking and shattering the rear window of the Corvette. The bullet continued into the passenger compartment and struck Keukelaar in the back of the head rendering him unconscious. Shellie was able to bring the Corvette to a stop. Davis and his friends continued driving. The Keukelaars eventually contacted state authorities. Sometime thereafter, Davis and his friends were apprehended. Davis was subsequently convicted of criminal assault in state court.

The Keukelaars sued Davis and Painter in state court and State Farm brought this action in federal district court seeking a declaration that it did not provide coverage to Davis and Painter for the Keukelaars' injuries. State Farm sought summary judgment on the ground that the injuries were not "caused by an accident 1 resulting from the ownership, maintenance or use of [Davis's] car...." The district court agreed and entered judgment in State Farm's favor. This appeal followed.

DISCUSSION

I. Standard of Review

"A grant of summary judgment is reviewed de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989); cert. denied, --- U.S. ----, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990). The appellate court must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the law." Hydro Systems, Inc. v. Continental Ins. Co., 929 F.2d 472, 473 (9th Cir.1991). We also review issues of insurance contract interpretation de novo. See

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American States Ins. Co. v. Borbor, 826 F.2d 888, 890 (9th Cir.1987).

II. Applicable Law

At the time of the shooting, Davis had a current State Farm insurance policy issued and delivered to Davis in Tennessee. The shooting occurred in California where the Keukelaars reside. In the trial court and in their briefs in this court, both parties proceeded on the assumption that California law governed the interpretation of the insurance policy. During oral argument State Farm argued for the first time that the law of Tennessee governs the interpretation of the provisions of its policy. 2 To resolve this question we look to the choice of law rules of California, the forum state. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941); Federal Insurance Co. v. Scarsella Bros., Inc., 931 F.2d 599, 602 (9th Cir.1991).

California Civil Code Sec. 1646 (1985) provides:

Law of Place. A contract is to be interpreted according to the law and usage of the place where it is to be performed; or, if it does not indicate a place of performance, according to the law and usage of the place where it is made.

There is no need to choose between the laws of California and Tennessee if they are identical. Hurtado, 11 Cal.3d at 580, 114 Cal.Rptr. at 109, 522 P.2d at 669; International Serv. Ins. Co. v. Gonzales, 194 Cal.App.3d 110, 116, 239 Cal.Rptr. 341, 344 (1987). We determine de novo the applicable law of California and Tennessee in this diversity case. Salve Regina College v. Russell, --- U.S. ----, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991); In Re Complaint of McLinn, 739 F.2d 1395 (9th Cir.1984) (en banc). In making this determination we look to all available data. See West v. American Tel. & Tel. Co., 311 U.S. 223, 237, 61 S.Ct. 179, 183, 85 L.Ed. 139 (1940). In the absence of determinative decisions of each state's highest...

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