Bisgard v. Johnson, A-93-241

CourtCourt of Appeals of Nebraska
Citation525 N.W.2d 225,3 Neb.App. 198
Docket NumberNo. A-93-241,A-93-241
PartiesJoel E. BISGARD, Appellant, v. Jerry R. JOHNSON, Appellee, and Motor Club Insurance Association, Garnishee-Appellee.
Decision Date13 December 1994

Page 225

525 N.W.2d 225
3 Neb.App. 198
Joel E. BISGARD, Appellant,
Jerry R. JOHNSON, Appellee, and Motor Club Insurance Association, Garnishee-Appellee.
No. A-93-241.
Court of Appeals of Nebraska.
Dec. 13, 1994.

Page 226

Syllabus by the Court

1. Summary Judgment: Appeal and Error. In reviewing an order granting summary judgment, an appellate court views the evidence in a light most favorable to the nonmoving party and gives that party the benefit of all reasonable inferences deducible from the evidence.

2. Summary Judgment. Summary judgment is proper when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to a judgment as a matter of law.

3. Appeal and Error. In considering questions of law, an appellate court has the obligation to reach conclusions independent of the determination made by the trial court.

4. Insurance: Contracts: Intent. An insurance policy is to be construed as any other contract to give effect to the parties' intentions at the time the contract was made.

5. Insurance: Contracts: Motor Vehicles: Words and Phrases. Some causal relation must exist between the injury and the use of the vehicle to come within the ambit of the phrase "arising out of the use of a vehicle."

6. Insurance: Contracts: Motor Vehicles: Liability. When an automobile liability policy provides coverage for liability because of an automobile accident, coverage extends only to injuries caused by an accident involving the insured vehicle.

7. Summary Judgment: Appeal and Error. An appellate court may affirm a grant of summary judgment on any ground available to the trial court, even if it is not the same reasoning relied upon below.

8. Insurance: Estoppel. An insurer that gives one reason for its conduct and decision as to a matter of controversy cannot, after litigation has begun, defend upon another and different ground.

9. Estoppel. A person is held to a representation made or a position assumed where otherwise inequitable consequences would result to another who, having the right to do so under all the circumstances of the case, has, in good faith, relied thereon.

10. Collateral Estoppel. Four conditions must exist in order for the doctrine of collateral estoppel to apply: (1) The identical issue was decided in the prior action, (2) there was a judgment on the merits which was final, (3) the party against whom the rule is applied was a party or a privity with a party to the prior action, and (4) there was an opportunity to fully and fairly litigate the issue in the action.

11. Actions: Parties. Privity requires, at a minimum, a substantial identity between [3 Neb.App. 199] the issues in controversy and showing the parties in the two actions are really and substantially in interest the same.

12. Due Process: Collateral Estoppel: Parties. Due process requires that the rule of collateral estoppel operate only against persons who have had their day in court either as a party to a prior suit or as a privy.

13. Parties. There is no identity of interest when two parties have diametrically opposed interests in the determination of an essential element.

14. Intent: Weapons. The intent to injure can be inferred as a matter of law, especially when guns are involved, based on the nature of the act involved and the accompanying reasonable foreseeability of harm.

15. Intent: Weapons. The intentional firing of a gun in the direction of an individual qualifies as an act which carries with it the

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reasonable foreseeability of harm, from which a court may infer the intent to injure.

16. Trial: Intent. Where a reasonable man in the defendant's position would believe that a particular result was substantially certain to follow, he will be dealt with by the jury, or even by the court, as though he had intended it.

Robert M. Slovek, Sodoro, Daly & Sodoro, Omaha, for appellant.

David L. Welch, Gaines, Mullen, Pansing & Hogan, Omaha, for garnishee-appellee.


HANNON, Judge.

The appellant, Joel E. Bisgard, was shot in the stomach by appellee Jerry R. Johnson while Johnson was a passenger in an automobile that was insured by the garnishee-appellee, Motor Club Insurance Association. Bisgard obtained a default judgment against Johnson for $100,000 for his damages. This is an appeal from the dismissal of a garnishment proceeding in which Bisgard sought to collect the judgment by garnishing Motor Club. Bisgard maintains that the insurance policy Motor Club issued covering the automobile in which Johnson was riding insured Johnson against liability for his act of shooting Bisgard. After Motor Club answered the interrogatories of garnishment, both parties moved for summary judgment. The trial court denied Bisgard's motion, granted Motor Club's motion, and dismissed the garnishment proceedings. Bisgard appeals. We conclude as a matter of law that the policy did not insure Johnson against liability for his act of shooting Bisgard [3 Neb.App. 200] for the following reasons: (1) The policy covered damages from an automobile accident only, (2) the policy covered damages only from the "use" of an automobile, and (3) the policy excluded intentional injuries. We also conclude that Motor Club is not estopped from denying coverage; the principle of issue preclusion does not prevent Motor Club from establishing that Johnson intentionally injured Bisgard as a matter of law. We therefore affirm.


On December 1, 1990, at about 12:15 a.m., Bisgard, then a 19-year-old man, was "hang[ing] out" and "cruising" with his friends in the general area of the Burger King restaurant situated near 76th and Dodge Streets in Omaha, Nebraska. Fred Pederson, Jr., and Johnson (the record does not show their age) were cruising in the same area in an automobile that was owned by Fred Pederson, Sr. Bisgard was led to believe that Pederson, Jr., and Johnson had assaulted a friend of Bisgard's. Angry and obscene words were yelled by Bisgard toward Pederson, Jr., and Johnson sometime before the shooting. These events are immaterial and will not be further described. While Bisgard was standing by the sidewalk near Dodge Street in front of the Burger King establishment, Pederson, Jr., was driving the insured vehicle west on Dodge Street with Johnson in the passenger seat. When the vehicle came abreast of Bisgard, it slowed and perhaps stopped. Johnson took out a .25-caliber pistol and shot Bisgard in the stomach from a distance of approximately 7 feet. Johnson was severely injured and spent a considerable amount of time in the hospital recovering from the gunshot wound.

Johnson pled nolo contendere to the charges brought against him and was sent to prison for his crimes.

On March 18, 1992, Bisgard sued Johnson for damages for personal injuries arising from the shooting, alleging that Johnson "was negligent in the discharge of a firearm in the direction of the Plaintiff," and on May 12, he obtained a default judgment against Johnson for $100,000.

On May 21, Bisgard's attorney wrote to Motor Club, demanding that it pay the judgment. A claims superintendent [3 Neb.App. 201] for Motor Club, Phil Fried, answered that letter, denying the claim. Bisgard's attorney wrote again, and Fried replied. Since the terms of this correspondence bear directly on the issue of estoppel, the content of the correspondence will be summarized when that issue is considered later in this opinion. Fried's

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statement that Motor Club did not know about Bisgard's claim until after he received the attorney's letter of May 21 is not disputed.

On September 30, Bisgard's attorney filed an affidavit and praecipe of garnishment on the judgment Bisgard held against Johnson, alleging that Motor Club had property of or was indebted to Johnson. In Motor Club's "Answers to Additional Interrogatories" that it filed in response to the garnishment summons, Motor Club denied it owed Johnson any money or property. Motor Club admitted it issued an automobile policy to "Fred C. Pedersen [sic], Sr.," which was in force on December 1, 1990, providing liability insurance to covered persons legally responsible because of an auto accident with Pederson's vehicle. In the answer, Motor Club further alleged that the policy did not cover Johnson's act of shooting Bisgard because (1) Bisgard's gunshot injury was not the result of an automobile accident, (2) Johnson was not using the insured automobile within the meaning of the term "use," and (3) the policy does not provide liability coverage for any person who intentionally causes bodily injury or property damage.

Bisgard's attorney filed an "Application to Determine Garnishee Liability." In that document, Bisgard alleged the judgment; the garnishment; a summary of the answer; and the allegations that Motor Club's policy provided coverage for the reason that the accidental shooting arose out of the use and operation of a motor vehicle, and the shooting was committed by a person who is insured under the policy. The answer in garnishment and the application served as the pleadings to bring the matter before the court. Motor Club and Bisgard both filed motions for summary judgment.

Through attached affidavits, the following evidence was offered and received on the motions: the judgment, the petition upon which it was based, the insurance policy, the correspondence described below, a deposition of Johnson taken [3 Neb.App. 202] before the default judgment was obtained, and a deposition of Bisgard taken during the garnishment proceedings. The aforementioned facts are gleaned from that evidence.

In Johnson's deposition taken in the original action, he testified that he was shooting at Bisgard to scare him. He did not testify that the gun discharged accidentally, but that in...

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