American Liberty Ins. Co. v. Soules

• Decision Date: 02 March 1972
• Docket Number: 6 Div. 866
• Citation: 258 So.2d 872,288 Ala. 163
• Parties: AMERICAN LIBERTY INSURANCE COMPANY, a Corporation v. Eldora Marie SOULES et al.
• Court: Alabama Supreme Court

Page 872

258 So.2d 872

288 Ala. 163

AMERICAN LIBERTY INSURANCE COMPANY, a Corporation v. Eldora Marie SOULES et al.

6 Div. 866.

Supreme Court of Alabama.

March 2, 1972.

Dunn, Porterfield, McDowell & Scholl, Birmingham, for appellant.

Rives, Peterson, Pettus, Conway & Burge and Edgar M. Elliott, III, Birmingham, for appellee State Farm Mutual Auto. Ins. Co.

Clifford Emond, Jr., Birmingham, for appellee Eldora Marie Soules.

F. Raymond Ingram, Birmingham, for appellee Dennis Lee Heth.

HARWOOD, Justice.

Dennis Lee Heth and Eldora Marie Soules were engaged at the time of an occurrence which generated the litigation out of which this appeal arises.

Heth was a deputy sheriff and habitually carried a pistol. On 29 July 1967, he and Miss Soules had been to an apartment of friends where a party was in progress. They left this apartment and drove to the Ryder Truck Lines, and later returned and parked in front of the apartment building. Miss Soules did not want to return to the party as she did not know any of the people there. Heth wanted to return to the party. They sat in Heth's automobile for about fifteen minutes discussing whether they would or would not return to the party, and their prospects of marriage. Heth had placed his pistol behind himself pushed down between the seat and the back of the seat. He testified that the pistol became uncomfortable to him and he was in the act of moving the pistol to another place when it fired. The bullet entered Miss Soules' neck and inflicted a rather severe wound. He could not say why the pistol fired.

Miss Soules' testimony did not vary substantially from Heth's, other than she testified she heard the automobile door open and close, and when she looked around she saw the barrel of the pistol pointing at her. Heth could not say whether he had opened and closed the door during the changing of the location of the pistol.

Heth, after the shooting, immediately drove Miss Soules to a hospital. On the way he had a collision with another automobile. Miss Soules sustained some minor injuries in this collision. Heth reported these two incidents to the sheriff's department of Jefferson County.

Heth had a policy with State Farm Mutual Insurance Company providing casualty coverage on his automobile. A day or two after the occurrences he reported both the shooting accident and the collision to State Farm. State Farm had Heth come to their office. He was accompanied by his father. There he gave a statement to a State Farm representative both as to the wounding of Miss Soules and as to the collision. Later, on 29 July 1967, Heth signed a document authorizing State Farm to 'investigate, negotiate, settle, deny, or defend any claim arising out of an accident or occurrence on or about 29 July 1967.'

On May 20, 1968, Mr. Clifford Emond, Jr., an attorney, wrote a letter to Mr. Heth stating that he represented Miss Soules in reference to her claim for damages against Heth as a result of the gunshot wound inflicted on her by Heth on 29 July 1967.

Heth and his father promptly consulted with Mr. Raymond Ingram, an attorney. After examining all the insurance policies owned by the Heths, which included a homeowner's insurance policy issued to Heth's parents, a letter was written by Mr. Ingram to American Liberty Life Insurance Company, the insurer under the homeowner's policy notifying that company of the claim by Miss Soules, and offering to cooperate fully with the company. This letter was received by American Liberty on 11 June 1968.

Dennis Lee Heth testified that until the consultation with Mr. Ingram he did not know that his parents had a homeowner's policy, although he was aware that they had 'all kinds of insurance.'

Mr. Heth's father testified that when the letter was received from Mr. Emond, 'we discussed it over and at that time, we thought my family had policies with State Farm and I thought they were handling the case. When the letter came, we were surprised State Farm wasn't handling it.'

Mr. Heth's mother also testified that prior to the consultation with Mr. Ingram, she was not aware that she had a policy that would cover her son in the shooting incident.

American Liberty denied liability on the homeowner's policy.

A suit being filed by Miss Soules against Heth, American Liberty brought a declaratory proceeding in the Circuit Court of Jefferson County seeking to have the court declare, (1) that American Liberty homeowner's policy afforded no coverage to Heth as to the occurrence made the basis of the civil suit in that liability under the American Liberty policy specifically excluded coverage for the occurrence, (2) that the automobile insurance policy issued by State Farm Mutual Automobile Insurance Company, in force at the time of the occurrence afforded coverage to Heth, and (3) that Heth had breached the terms of the policy issued by American Liberty by failing to give notice to American Liberty as soon as practicable as required under the terms of said policy.

After hearing the Chancellor decreed, (1) that the American Liberty policy afforded coverage to Heth for the occurrence made the basis of Miss Soules' claim for damages, and for the suit filed by Miss Soules, and (2) that the policy issued by State Farm afforded no coverage to Heth for the occurrence which was the basis for Miss Soules' civil suit.

The court did, however, enjoin the prosecution of Miss Soules' civil suit pending this appeal.

American Liberty's homeowner's policy contains the following provisions:

'Insuring Agreements, (1, e) agrees to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage and the Company shall defend any suit against the insured alleging such bodily injury * * *'

Under the 'Special Exclusions' clause in the American Liberty policy it is provided that the policy does not apply

'* * * (b) to the ownership, maintenance, operation, use, loading or unloading of (1) automobiles * * * while away from the premises.' The policy defines an 'insured' as follows:

'2. Definitions (a) Insured: The unqualified word 'insured' includes (1) the Named Insured and (2) if residents of his household, his spouse, the relatives of either, * * *'

In the homeowner's policy Floyd R. Heth and Minnie Lee Heth were the named insureds. Dennis Lee Heth was their son and had lived in their household his entire life. There can be no doubt that under the terms of the homeowner's policy Dennis Lee Heth was an additional insured under the policy.

The provision in the State Farm automobile liability policy issued to Dennis Lee Heth, pertinent to the point now being considered, afforded coverage for legal liability, as follows:

'* * * Because of (a) bodily injury sustained by other persons * * * caused by accident arising out of the ownership, maintenance, or use * * * of the owned automobile.'

Assignment of error No. 3 asserts that the trial court erred as a matter of law in ruling that the policy issued by State Farm afforded no coverage to Dennis Lee Heth.

The thrust of the appellant's argument in support of assignment of error No. 3 may be summarized in the following quotation from appellant's brief:

'The shooting occurred when Heth was moving the pistol because it was bothering him. He was, thus, using the automobile as a storage recepticle for his revolver and at the time of the shooting both Heth and Soules were using the parked vehicle as a place to discuss their problems.'

From this premise counsel for appellant concludes that insurance coverage for Miss Soules' claim should be placed upon State Farm, contending that the accident arose out of the use of Heth's automobile.

In Alabama Pipe Co. v. Wofford, 253 Ala. 610, 46 So.2d 404, a workmen's compensation case, this court stated that the phrase 'arising out of employment' denotes 'employment as the source and cause of accident and we have said in order to satisfy this requisite the rational mind must be able to trace the resultant injury to a proximate cause set in motion by the employment and not otherwise.'

Paraphrasing the above exposition of the meaning of 'arising out of' to the phrase as used in the State Farm policy, the phrase would denote the use of the insured's automobile as the cause of the accident, and in order to satisfy this requisite the rational mind must be able to trace the resultant injury to a proximate cause set in motion by the use of the automobile and not otherwise.

This cannot be reasonably done. There must be a causal connection between the accident arising out of the use of the automobile before coverage can be successfully invoked. While Heth and Miss Soules were sitting in the automobile at the time the pistol went off, there is nothing from which an inference can be drawn connecting the automobile with the firing of the pistol. The injury was not one arising from, or connected with the inherent use of the automobile as a vehicle. The automobile was merely the situs of the accident which could as well have occurred in any other location.

Counsel for appellee, State Farm, have stated in brief that their research has revealed only four cases from jurisdictions outside Alabama relative to whether the discharge of a firearm within an automobile, causing injury to an occupant of the automobile, can constitute an injury arising out of the use of the automobile within the coverage of an automobile liability policy. Our research likewise has not brought to light any cases additional to those cited by counsel for State Farm. These cases are National Union Fire Ins. Co. v. Bruecks, 179 Neb. 642, 139 N.W.2d 821; Mason v. Celina Mutual Ins. Co., 161 Colo. 442, 423 P.2d 24; Brenner v. Aetna Ins. Co., 8 Ariz.App. 272, 445 P.2d 474, and United States Fidelity & Guaranty Co. v. Western Fire Ins. Co. (Ct. of App. of Kentucky), 450 S.W.2d 491.

The doctrines of all of the above mentioned cases are in accord that such...