Byus v. Mid-Century Ins. Co.

• Decision Date: 27 February 1996
• Docket Number: MID-CENTURY,No. 81340,81340
• Citation: 912 P.2d 845,1996 OK 25
• Parties: Loretta J. BYUS, Administratrix of the Estate of Thomas Edward Byus, Deceased, Appellee, v.INSURANCE COMPANY, Appellant, and Darrell Cooper and Manuel Jesus Corrales, Defendants.
• Court: Oklahoma Supreme Court

Page 845

912 P.2d 845

1996 OK 25

Loretta J. BYUS, Administratrix of the Estate of Thomas Edward Byus, Deceased, Appellee, v. MID-CENTURY INSURANCE COMPANY, Appellant and Darrell Cooper and Manuel Jesus Corrales, Defendants.

No. 81340.

Supreme Court of Oklahoma.

Feb. 27, 1996.

Certiorari to the Court of Appeals, Division III; Eugene H. Mathews, Judge.

Randy D. Witzke, Steven E. Bracklein, Oklahoma City, for Appellant.

Patrick E. Carr, Sidney A. Martin, II, Tulsa, for Appellee.

HODGES, Justice.

This case is before this Court after the trial court rendered summary judgment in favor of the plaintiff and the Court of Appeals reversed and held judgment should have been rendered in favor of the defendant. ¹ Because we find factual issues are unresolved, we hold summary judgment for either party is improper.

I. Facts

On August 4, 1991, the deceased, Thomas Edward Byus (Byus), was driving his own car home on South Shields in Oklahoma City. Michael McCracken (McCracken) and Lance Tennant were passengers in the car. As Byus was driving north and approaching 29th Street, a car driven by Darrell Lee Cooper (Cooper) turned onto Shields and headed south. Jacob De La Cruz (De La Cruz) and Manny Corrales (Corrales), along with two females, were passengers in the Cooper car.

As the two cars met, Corrales flashed a gang sign at the Byus car. One of the passengers in the Byus car responded with an obscene gesture. At the direction of Corrales, Cooper made a U-turn in order to follow the Byus car. When Byus realized the Cooper vehicle was following him, he turned onto 29th Street. Cooper also turned onto 29th Street and accelerated in order to overtake the Byus car.

Cooper pulled next to the Byus car and slowed down in order to stay next to it. The two cars drove next to each other for several minutes. An argument ensued between the occupants of the two vehicles. Byus suggested the occupants of the vehicles get out and fight. Instead both Corrales and De La Cruz stuck guns out the windows of the Cooper vehicle. Byus accelerated when one of the passengers in his car said, "He's got a gun." Likewise, Cooper accelerated and caught up with the Byus car.

Two shots were fired by either De La Cruz or Corrales. One of the bullets struck Byus in the head. After the shots were fired Cooper sped up, raced down 29th Street and turned. Byus died a few days later. There was no plan to shoot Byus.

Byus' mother, administratrix of the estate (administratrix), filed this action against Cooper for negligent driving, Corrales for negligent firing of a gun, and Mid-Century Insurance Company (Mid-Century) for uninsured motorists (UM) insurance. On September 10, 1992, the administratrix filed a motion for partial summary adjudication on the issue of the UM coverage. Mid-Century filed a cross-motion for summary judgment arguing: (1) Byus' death did not arise out of the ownership, maintenance, or use of an uninsured motor vehicle; (2) even if the shooting did arise out of the use of the vehicle, the shooting was an independent act which broke the causal connection; and (3) the person who shot Byus was not the owner or operator of the vehicle. On February 26, 1993, the trial court entered judgment in favor of the administratrix for the stipulated amount of $20,000 on the issue of UM coverage. Mid-Century appealed. The Court of Appeals reversed and remanded the cause, held the injury did not arise out of the use of the Cooper vehicle, and found summary judgment should be rendered in favor of the defendant, Mid-Century. This Court granted certiorari.

II. Causal relationship between the uninsured vehicle and the insured's death

Section 3636 of title 36 limits UM coverage to damages an insured can recover from the owner or operator and which arise out of the ownership, maintenance or use of a motor vehicle. ² The insurance contract contains similar language. Section 3636 and the insurance contract both require a causal connection between the ownership, maintenance or use of the uninsured vehicle, the Cooper car, and the injury, Byus' death. Safeco Ins. Co. of America v. Sanders, 803 P.2d 688 (Okla.1990). The trial court concluded as a matter of law a sufficient causal relationship existed to render judgment in favor of the plaintiff. We disagree.

The undisputed facts show 1) the Cooper car was used to chase down the Byus' vehicle, 2) the deadly shot was fired by a passenger in the Cooper car while the car was moving, and 3) the Cooper car was used to escape the scene of the shooting. Even though these material facts are undisputed, reasonable minds could draw different inferences. The use of the gun might be viewed as inextricably linked with the use of the car sufficient to find the requisite causal relationship. If the shooting was seen as separate from the use of the car, a jury could find an insufficient causal relationship. Summary judgment is proper only if there is no dispute of material facts and reasonable minds could not differ. Handy v. The City of Lawton, 835 P.2d 870 (Okla.1992). The trial court and the Court of Appeals incorrectly determined summary judgment was proper.

We addressed this same issue in Willard v. Kelley, 803 P.2d 1124 (Okla.1990). The facts in Willard are similar to the facts in the present case. In both Willard and this case, the gun was fired from the car, the cars were involved in a chase immediately before the shooting, and the car was used to get away from the scene of the shooting. The trial court granted summary judgment in favor of the insured. Reasoning that conflicting inferences could be drawn from the stipulated facts, this Court held that summary judgment was not proper. This Court found that the causal connection between the use of the car and the shooting was a question for the jury.

III. Independent, intervening cause

Even if a jury would find Byus' death arose out of the use of Cooper's car, the shooting would sever liability if were not foreseeable. Willard, 803 P.2d at 1128-29, 1131. The parties do not contest that the shooting was accidental in that it was "unexpected, unintended and unforeseen" by Byus. Mid-Century does argue that the shooting was an independent, supervening force severing liability arising out of the use of the Cooper car.

An intervening force will sever liability of a defendant only when the force is unforeseeable and, thus, not the proximate cause of the injury. Willard, 803 P.2d at 1131. "To rise to the magnitude of a supervening cause, which will insulate the original actor from liability, the new cause must be (1) independent of the original act, (2) adequate of itself to bring about the result and (3) one whose occurrence was not reasonably foreseeable to the original actor." Graham v. Keuchel, 847 P.2d 342, 348 (Okla.1993) (emphasis omitted); see Willard, 803 P.2d at 1131-32.

If the force is foreseeable, the causal chain will remain unbroken. Id. Thus, if the shooting was unforeseeable from the point of view of the original tortfeasor, it would break any causal chain and be an independent, supervening cause which would sever liability related to the use of the Cooper car, and UM coverage would not apply. On the other side, if the shooting was foreseeable, UM coverage would be available for any injury arising out of the use of the vehicle since any liability for injury resulting from the use of the Cooper car would remain intact.

As we found in Willard on similar facts, the issue of the direct causal relationship between the use of the car and the shooting cannot be segregated from the issue of proximate cause. Since the issues are inseparable, we cannot say as a matter of law the shooting would or would not break a causal chain between the use of the Cooper car and Byus' death. Both issues in this case are not proper for summary judgment.

Mid-Century argues the facts in this case are similar to the facts in Safeco, 803 P.2d at 688, in which this Court found an intervening, independent force severed liability. In Safeco, the insureds were abducted and forced to drive a short distance. The insureds were forced into the trunk, and then the tortfeasors drove back to the place of the abduction. One of the tortfeasors drove the insureds' car to a remote location while the other drove the tortfeasors' car. The tortfeasors then exited both cars, and cut the fuel line to the insureds' car, ignited the fuel, and left the scene in their car. The insureds died as a result of the ensuing fire. This Court held the acts of cutting the fuel line and igniting the fuel were an independent, intervening force which severed the causal connection between the use of the vehicle and the injury. We find the facts of Willard more analogous to the facts in this case than those of Safeco.

IV. Definition of operator of a vehicle

Under section 3636(B) and the language of the contract, UM coverage applies to insureds "who are legally entitled to recover damages from owners or operators of uninsured motor vehicles." Mid-Century argues that because the shooter was not the owner or operator of the vehicle, UM coverage does not apply.

In Safeco, this Court adopted the definition of operator found in Webster's Third New International Dictionary of the English Language Unabridged as " '1. one that produces a physical effect or engages himself in the mechanical aspect of any process or activity.' " Safeco, 803 P.2d at 696. Applying the definition to this case, the shooter was the operator of the vehicle only if he exercised such coercive control over Cooper, the driver, that Cooper did not exercise his own will. In this way, the shooter would have actually controlled the movement of the car and, thus, the operator. The necessary evidentiary material to render summary judgment on this issue is absent.

Even if the shooter was not exercising the necessary control over Cooper, UM coverage may nonetheless apply. It is undisputed that Cooper was the driver of the car. As the driver, Cooper was...