Baber v. Fortner by Poe, 20138

• Court: Supreme Court of West Virginia
• Writing for the Court: BROTHERTON
• Citation: 412 S.E.2d 814,186 W.Va. 413
• Parties: Phyllis BABER, Administratrix of the Estate of Richard Marshall Walker, and Raymond Walker, Plaintiffs Below, Appellees, v. Nicholas FORTNER, by Thomas POE, Guardian ad Litem, Defendant Below, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Intervenor Below, Appellee.
• Docket Number: No. 20138,20138
• Decision Date: 19 December 1991

Page 814

412 S.E.2d 814 186 W.Va. 413 Phyllis BABER, Administratrix of the Estate of Richard
Marshall Walker, and Raymond Walker, Plaintiffs
Below, Appellees,
v.
Nicholas FORTNER, by Thomas POE, Guardian ad Litem,
Defendant Below, Appellant,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Intervenor
Below, Appellee. No. 20138. Supreme Court of Appeals of
West Virginia. Submitted Sept. 18, 1991.
Decided Dec. 19, 1991.

Page 815

[186 W.Va. 414] Syllabus by the Court

1. An intentional shooting which occurs from within the cab of a stationary pickup truck is not an act arising out of the ownership, maintenance, operation, or use of the vehicle.

2. "Collateral estoppel is designed to foreclose relitigation of issues in a second suit which have actually been litigated in the earlier suit even though there may be a difference in the cause of action between the parties of the first and second suit. We have made this summary of the doctrine of collateral estoppel:

'But where the causes of action are not the same, the parties being identical or in privity, the bar extends to only those matters which were actually litigated in the former proceeding, as distinguished from those matters that might or could have been litigated therein, and arises by way of estoppel rather than by way of strict res adjudicata.' Lane v. Williams, 150 W.Va. 96, 100, 144 S.E.2d 234, 236 (1965)."

Syllabus Point 2, Conley v. Spillers, 171 W.Va. 584, 301 S.E.2d 216 (1983).

3. "A fundamental due process point relating to the utilization of collateral estoppel is that any person against whom collateral estoppel is asserted must have had a prior opportunity to have litigated his claim." Syllabus point 8, Conley v. Spillers, 171 W.Va. 584, 301 S.E.2d 216 (1983).

4. The adjudication of a killing which results in a voluntary manslaughter conviction conclusively establishes the intentional nature of that same act for the purposes of any subsequent civil proceeding.

G. David Brumfield, Welch, for appellant.

James R. Watson, Steptoe & Johnson, Charleston, for appellee.

BROTHERTON, Justice:

In this case, we are asked to determine whether the appellant's voluntary manslaughter conviction established the element of intent for purposes of determining coverage under an intentional injury exclusion clause in a liability insurance policy, and thus precluded the appellant's relitigation of the issue in subsequent civil proceedings which were instituted against him.

The appellant, Nicholas Fortner, and his wife, Diane, separated in 1983. On November

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[186 W.Va. 415] 15, 1983, Fortner went to visit his estranged wife and found her outside with her boyfriend, Richard Walker, in the yard of the home where she was staying. Despite their separation, the Fortners continued to see each other and were considering reconciliation. According to Fortner, this angered Walker, who had threatened him on previous occasions and even engaged him in a car chase. Mrs. Fortner told her husband that Walker carried a gun, and Fortner states that because he feared for his life, he started carrying a pistol in his pickup truck.

On the evening in question, Fortner maintains that he was inside his truck, backing out of the driveway, and attempting to turn around and return home, when Walker began cursing and threatening him. When Mrs. Fortner tried to restrain Walker, he pushed her to the ground. He then charged Fortner. Believing that he saw a weapon in Walker's hand, Fortner picked his own pistol off the seat of the truck and fired it through the open driver's side window at Walker. Walker died as a result of the gunshot wound.

On May 7, 1984, Nicholas Fortner was indicted for the first-degree murder of Richard Walker. He entered a plea of not guilty by reason of self-defense on September 11, 1984. On April 12, 1985, a Wyoming County jury found Fortner guilty of voluntary manslaughter with the use of a firearm.

On November 12, 1985, Phyllis Baber, the Administratrix of the Estate of Richard Walker, and Raymond Walker instituted a wrongful death action against Fortner, alleging that he was guilty of intentional misconduct and negligence in Richard Walker's death. Fortner had an automobile liability insurance policy with State Farm Mutual Automobile Insurance Company. Consistent with the coverage provided by this policy, he maintained that his shooting of Walker arose out of his "operation, maintenance and use" of the insured motor vehicle. Fortner notified State Farm of the wrongful death suit which Walker's estate had filed against him and requested that State Farm defend him in the tort action and pay any resulting judgment.

Upon learning of Fortner's demand for coverage, State Farm moved to intervene in the wrongful death action, and subsequently moved for summary judgment against Fortner based on an Intentional Acts Exclusion contained in the insurance policy. State Farm argued that because Fortner was found guilty of voluntary manslaughter, the issue of whether his actions in causing the decedent's death were negligent and therefore possibly covered by its liability policy, or were intentional and therefore excluded, were governed by the doctrine of collateral estoppel.

In an opinion letter dated March 19, 1990, the lower court ruled that "the automobile liability insurance policy of Nicholas Fortner does not provide coverage in this case and ... the insurance company is under no obligation to defend or to indemnify its insured, Nicholas Fortner, for the injuries and death of Richard M. Walker." The judge also added:

I do not believe the death of Richard Walker arose out of the operation, maintenance or use of the vehicle, but that the vehicle was merely the situs for the shooting and not a causal link in the killing of Richard Walker. In all probability, the killing of Richard Walker would have occurred if Fortner had been on foot, or on a bicycle, moped, or small car.

On May 1, 1990, the Circuit Court of Wyoming County entered an order granting summary judgment in favor of the intervenor, State Farm, stating that the "policy of insurance provides no coverage for the acts of Nicholas Fortner upon which the complaint is founded."

The appellant, Nicholas Fortner, now appeals from this summary judgment order, and argues that his voluntary manslaughter conviction was not determinative of the issue of intent. The appellant contends that his shooting of Walker was not a malicious act, but one which was necessary to protect himself. The appellant argues that the trial court erred when granting summary judgment for State Farm by relying

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[186 W.Va. 416] solely upon his voluntary manslaughter conviction and applying the doctrine of collateral estoppel, thereby finding that the issue of intent had previously been adjudicated in the criminal case.

Our review of the record in this case does not indicate that this was, in fact, the basis for the lower court's decision. As we noted above, the court found that Walker's death did not arise out of the "ownership, maintenance or use" of the truck, but that the truck was merely the situs for a shooting which in all probability would have occurred regardless of Fortner's mode of transportation, or lack thereof. We agree with the lower court's conclusion, and will briefly discuss not only this issue, but address as well the application of the doctrine of collateral estoppel against the appellant, as the two issues appear to be inextricably linked in our analysis.

The issues raised by the facts of this case have been litigated in a wide variety of contexts, and as a result, the phrase "arising out of the ownership, maintenance or use" in automobile insurance policies has been given a broad interpretation. ¹ For example, in cases involving the accidental discharge of a gun during the loading and unloading of a vehicle, courts have held that liability coverage exists because the applicable policies define "use" to include loading and unloading vehicles. Travelers Ins. Co. v. Aetna Cas. & Sur. Co., 491 S.W.2d 363 (Tenn.1973); Laviana v. Shelby Mut. Ins. Co., 224 F.Supp. 563 (D.Vt.1963); Allstate Ins. Co. v. Valdez, 190 F.Supp. 893 (E.D.Mich.1961); Viani v. Aetna Ins. Co., 95 Idaho 22, 501 P.2d 706 (1972); Allstate Ins. Co. v. Truck Ins. Exchange, 63 Wis.2d 148, 216 N.W.2d 205 (1974).

Auto insurers have also been held liable for coverage when a bump in the road or a similar impact results in the discharge of a firearm which is being transported. Courts have reasoned in such cases that a causal connection existed between the accidental discharge of the firearm and the movement or operation of the vehicle. See State Farm Mut. Auto. Ins. Co. v. Partridge, 10 Cal.3d 94, 109 Cal.Rptr. 811, 514 P.2d 123 (1973); Southeastern Fidelity Ins. Co. v. Stevens, 142 Ga.App. 562, 236 S.E.2d 550 (1977).

Courts usually impose liability on automobile insurers in cases involving the accidental discharge of firearms during hunting trips or while firearms are either resting in or being removed from gun racks in an insured vehicle. For example, in holding that an insurer was liable for the injuries and death which resulted when a rifle discharged as it was being removed from a jeep after a hunting trip, the Colorado Supreme Court held that "[a]n accident occurs 'on account of the use of 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." Kohl v. Union Ins. Co., 731 P.2d 134, 135 (Colo.1986), citing Azar v. Employers Cas. Co., 178 Colo. 58, 495 P.2d 554 (1972); Mason v. Celina Mut. Ins. Co., 161 Colo. 442, 423 P.2d 24 (1967). "The transportation of hunters and their weapons to areas where they can pursue their sport is undeniably a conceivable use of a four-wheel-drive vehicle." Kohl, 731 P.2d at 136.

In spite of these cases and others finding that the discharge of a firearm inside a motor vehicle arises...