Brown v. Shelter Mut. Ins. Co., WD

• Decision Date: 25 August 1992
• Docket Number: No. WD,WD
• Citation: Brown v. Shelter Mut. Ins. Co., 838 S.W.2d 148 (Mo. App. 1992)
• Parties: Arthur David BROWN, Appellant, v. SHELTER MUTUAL INSURANCE COMPANY, Respondent. 46196.
• Court: Missouri Court of Appeals

Page 148

838 S.W.2d 148

Arthur David BROWN, Appellant, v. SHELTER MUTUAL INSURANCE COMPANY, Respondent.

No. WD 46196.

Missouri Court of Appeals Western District.

Aug. 25, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

Sept. 29, 1992.

Application to Transfer Denied Oct. 27, 1992.

J. Christopher Spangler, Wesner, Kempton and Russell, Sedalia, for appellant.

James C. Johns, Cason, Edgett & Johns, Clinton, for respondent.

Before TURNAGE, P.J., and BRECKENRIDGE and HANNA, JJ.

BRECKENRIDGE, Judge.

Arthur Brown appeals from the trial court's grant of summary judgment to Shelter Mutual Insurance Company (Shelter) on his claim for uninsured motorist benefits. Mr. Brown presents two points in this appeal, claiming that the trial court erred in entering summary judgment in favor of Shelter because: (1) the undisputed facts before the trial court show that the uninsured motorist used the uninsured motor vehicle to transport a handgun and to transport decedent, said uses, as a matter of law, constitute a use of an uninsured motor vehicle under the terms of the policy; and (2) an unresolved issue of material fact existed as to whether decedent's death arose out of the ownership, maintenance, or use of a motor vehicle. The judgment is affirmed.

Ronald Brown was the natural son of the appellant, Arthur Brown. Both father and son were insured by Shelter under Policy No. 24-1-2662272-3, which provided uninsured motorist coverage of $25,000.00 per person. That policy provided:

COVERAGE E--UNINSURED MOTORISTS (DAMAGES FOR BODILY INJURY)

We will pay damages for bodily injury which an insured or the insured's legal representative is legally entitled to recover from the owner or operator of an uninsured motor vehicle. The bodily injury must be caused by accident and arise out of the ownership, maintenance or use of the uninsured motor vehicle.

"Bodily injury" was defined elsewhere in the policy as "bodily injury, and sickness, disease, or death which results from it."

Ronald Brown was shot and killed on the evening of November 6, 1987, by James F. Chitwood, Jr. Earlier that evening, Mr. Chitwood, Ronald Brown and Bill Glen made plans to visit an establishment known as the Countryside Palace to see a band that was playing there. Before Mr. Chitwood picked up the others he tried to repair his .25 caliber handgun which had been malfunctioning. He took the clip out of the gun and placed it in his pocket. He then put the gun in the front seat of his pickup truck and went to pick up Ronald Brown and Bill Glen.

Bill Glen requested Mr. Chitwood to drive to a nearby warehouse. Mr. Chitwood complied and parked the truck. Mr. Glen exited from the pickup. Mr. Chitwood, in describing what happened in an affidavit, stated:

I was sitting on the left hand side of the seat and Ron Brown was sitting in the passenger seat. The truck was parked. Just in general conversation, Ron asked me if I still had my gun. I said yes, it's here someplace and we both began looking for it there in the passenger area of my truck. I had my coat and some other items laying in the seat. I found the gun. I picked it up and handled it and displayed it to Ronald Paul Brown and in doing so it was pointed at him. That's when it went off. We didn't have any argument or words or anything like that. I did not shoot him intentionally. I wasn't even joking about the gun or trying to scare him. I just found it and picked it up and as I handled it, it went off accidentally. [T]he shot hit him in the left side of the chest. [I]t was a .25 caliber automatic. The pickup was parked and we were just sitting in it at the time the gun went off. I understand that it has been suggested that what happened had something to do with the operation or maintenance or use of the pickup and this is not so. We were just sitting in the pickup and when I picked up the gun and showed it to Ron it just accidentally went off.

In Mr. Chitwood's statement to the police he indicated that he believed the gun to be empty. Mr. Chitwood did not have any policy of automobile insurance at the time of the shooting.

Arthur Brown filed suit against Shelter alleging, in his Third Amended Petition, that:

* * * * * *

8. That on or about November 6, 1987, Ronald Paul Brown suffered personal injuries culminating in his death, said injuries and death resulting from the discharge of a handgun in said uninsured motor vehicle.

9. That the aforesaid discharge of the handgun within said uninsured motor vehicle arose out of James F. Chitwood, Jr.'s, ownership, maintenance or use of the unisured [sic] motor vehicle in that:

a. James F. Chitwood, Jr., used said uninsured motor vehicle to transport a dangerous instrumentality, to wit: a loaded handgun b. James F. Chitwood, Jr., used said uninsured motor vehicle to transport decedent Ronald Paul Brown;

c. James F. Chitwood, Jr., used said uninsured motor vehicle to transport decedent Ronald Paul Brown while at the same time transporting a dangerous instrumentality, to wit: a loaded handgun;

d. At the time of the discharge of the weapon, the motor vehicle was being used by the decedent and Chitwood, in that it was being occupied by both the decedent and Chitwood.

Shelter filed a motion for summary judgment which the trial court sustained on the basis that Ronald Brown's personal injury and death did not arise out of the ownership, maintenance or use of the motor vehicle in question. Arthur Brown appeals.

When reviewing a motion for summary judgment, the record must be scrutinized in the light most favorable to the party against whom the motion was filed and judgment rendered, according that party all reasonable inferences drawn therefrom. West v. Jacobs, 790 S.W.2d 475, 479 (Mo.App.1990). Summary judgments shall only be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a...