Cameron Mut. Ins. Co. v. Ward

• Citation: 599 S.W.2d 13
• Decision Date: 07 April 1980
• Docket Number: No. KCD,KCD
• Parties: CAMERON MUTUAL INSURANCE CO., Respondent, v. Robert Newton WARD, J. N. Ward, Ronnie Ward, and Howard Dale Ellis, a minor, Howard Ray Ellis, and Mrs. Howard Ray Ellis, Appellants. 30472.
• Court: Court of Appeal of Missouri (US)

Page 13

599 S.W.2d 13

CAMERON MUTUAL INSURANCE CO., Respondent, v. Robert Newton WARD, J. N. Ward, Ronnie Ward, and Howard Dale Ellis, a minor, Howard Ray Ellis, and Mrs. Howard Ray Ellis, Appellants.

No. KCD 30472.

Missouri Court of Appeals, Western District.

April 7, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

May 5, 1980.

Applications to Transfer Denied June 10, 1980.

R. Max Humphreys, Miller, Humphreys & Seidel, Trenton, for appellants, Robert Newton Ward, J. N. Ward and Ronnie Ward.

Morris & Foust, Max W. Foust, Lloyd L. Messick and E. Wayne Taff, Kansas City, for appellants Ellis.

Mitchell, O'Laughlin, Fitzgerald & Kristl, P. C., George T. O'Laughlin and Michael D. Fitzgerald, Kansas City, for respondent.

Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.

SOMERVILLE, Presiding Judge.

A declaratory judgment action was brought by Cameron Mutual Insurance Company (Cameron Mutual) to determine whether its policy of automobile liability insurance extended coverage to injuries sustained by a guest passenger after alighting from the insured vehicle as a result of the discharge of a .243 Magnum Winchester rifle lying in the insured vehicle. The other parties to the action, all of whom were joined as defendants, were Robert Newton Ward and J. N. Ward, the named insureds, Ronnie Ward who was using the insured vehicle (a 1973 Chevrolet 3/4 ton pickup) with the express permission of the named insureds, Howard Dale Ellis, a minor, the injured guest passenger, and Howard Ray Ellis and Mrs. Howard Ray Ellis, the parents of the injured minor. It is appropriate to note that a separate action for damages was pending between the Ellises as plaintiffs and Ronnie Ward as defendant.

A bench trial culminated in a "Judgment Entry" on September 8, 1978, favorable to Cameron Mutual. The "Judgment Entry" contained "findings" and "conclusions" that (1) the "discharge of the rifle" and the "resulting" injuries sustained by Howard Dale Ellis "did not arise out of the operation, use or maintenance of the Chevrolet truck . . . within the meaning of the policy of insurance" issued by Cameron Mutual and that (2) Cameron Mutual "is not and should not be required under the terms and provisions of said policy of insurance to defend or indemnify . . . Ronnie Ward or J. N. Ward or Robert Newton Ward . . . in any claims or actions . . . brought for damages based upon such injuries to Howard Dale Ellis." The judgment portion of the "Judgment Entry" declared, adjudged and decreed that Cameron Mutual was not required under the terms of its policy to defend or indemnify the Wards in any action or pay any judgment for damages based upon bodily injuries sustained by Howard Dale Ellis as a result of the accidental discharge of the rifle.

All of the defendants timely appealed, and one common question is broached on appeal did the trial court, under the law and facts, incorrectly exonerate Cameron Mutual from any duty to indemnify or defend under the terms of its policy? Under the insuring agreements contained in its policy, Cameron Mutual, among other things, agreed to "pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury . . . sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile." The language, "arising out of the . . . use of the automobile", has judicially plagued a number of cases involving the accidental discharge of weapons in or about motor vehicles. A combination of the legal construction given this language and its application to variant fact situations has given rise to a diversity of results in an ever growing body of case law. Although a pattern of consistency is discernible throughout the cases concerning the legal construction given to such language, a common problem is encountered in reconciling its legal construction with the particular facts in a given case. In order to achieve a proper result in a given case this interplay between law and facts must be carefully balanced.

Although not a gun discharge case, Schmidt v. Utilities Ins. Co., 353 Mo. 213, 182 S.W.2d 181 (1944), is widely cited in this and other jurisdictions for its discussion concerning the legal construction given such insuring agreements. Schmidt, premised upon the basic rule that insuring agreements which are susceptible of various interpretations are to be liberally construed in favor of the insured, holds that the "words 'arising out of * * * use' are very broad, general and comprehensive terms . . . (and the) words 'arising out of' . . . are ordinarily understood to mean 'originating from' or 'having its origin in,' 'growing out of' or 'flowing from' . . .", and although it is not required that the "use" of the automobile be the "direct and proximate" cause of the injury in the strict legal sense of causation permeating general tort law, there must be some causal connection between an injury and the "use" of an automobile in order for there to be coverage. Schmidt v. Utilities Ins. Co., supra, 182 S.W.2d at 183-84. See also Suburban Service Bus Co. v. National Mut. Casualty Co., 237 Mo.App. 1128, 183 S.W.2d 376 (1944).

The experience of assimilating divergent fact situations into the basic legal construction given such insuring agreements has produced an array of peripheral principles which are frequently relied upon for determining the existence or nonexistence of coverage under automobile liability insurance policies in vehicle gun discharge cases. The parties on appeal have indiscriminately cited a number of cases reflecting these peripheral principles, with virtually no attention given to distinguishing them factually. At best, they are of nebulous value absent being conceptually categorized. An attempt to do so reveals that this court is writing on a clean slate insofar as Missouri case law is concerned.

Generally speaking, the cases cited by the parties from other jurisdictions, as well as those ferreted out by this court's independent research, fall into five principal categories. The category which each falls into is determined by its underlying facts. One category of cases may be fittingly described as involving the accidental discharge of guns inside moving or motionless vehicles while an occupant of the vehicle is handling or toying with the gun. The following typify cases which fall into this category: Western Cas. and Sur. Co. v. Branon, 463 F.Supp. 1208 (E.D.Ill.1979); American Liberty Insurance Company v. Soules, 288 Ala. 163, 258 So.2d 872 (1972); Brenner v. Aetna Insurance Company, 8 Ariz.App. 272, 445 P.2d 474 (1968); Hartford Fire Ins. Co. v. State Farm Mut. Auto., 574 S.W.2d 265 (Ark.1978); Azar v. Employers Casualty Company, 178 Colo. 58, 495 P.2d 554 (1972); Mason v. Celina Mutual Insurance Company, 161 Colo. 442, 423 P.2d 24 (1967); United States Fidelity & G. Co. v. Western Fire Ins. Co., 450 S.W.2d 491 (Ky.App.1970); National Family Ins. Co. v. Boyer, 269 N.W.2d 10 (Minn.1978); National Union F. Ins. Co. of Pittsburg, Pa. v. Bruecks, 179 Neb. 642, 139 N.W.2d 821 (1966); Raines v. St. Paul Fire & Marine Insurance Company, 9 N.C.App. 27, 175 S.E.2d 299 (1970); and State Farm Mut. Auto Ins. Co. v. Centennial Ins. Co., 14 Wash.App. 541, 543 P.2d 645 (1975). Without exception, these cases hold that no coverage exists under the insuring agreements of the respective automobile liability policies involved because there was no causal connection between the discharge of the guns and the use of the vehicles; at best, the vehicles were merely the "situs" or "locus" of any resultant injuries as discharge of the guns was unconnected with the inherent use of the vehicles.

A second category of cases may be fittingly described as involving the accidental discharge of guns during the process of loading them into or unloading them from vehicles. The following typify cases which fall into this category: Laviana v. Shelby Mutual Insurance Company, 224 F.Supp. 563 (D.Vt.1963); Allstate Insurance Company v. Valdez, 190 F.Supp. 893 (E.D.Mich.1961) ; Viani v. Aetna Insurance Company, 95 Idaho 22, 501 P.2d 706 (1972); Travelers Insurance Co. v. Aetna Casualty & Sur. Co., 491 S.W.2d 363 (Tenn.1973); and Allstate Insurance Co. v. Truck Insurance Exchange, 63 Wis.2d 148, 216 N.W.2d 205 (1974). Without exception, these cases hold that coverage exists under the insuring agreements of the respective automobile liability policies involved by reason of coverage extended to the process of loading and unloading vehicles.

A third category of cases may be fittingly described as involving the use of a physical portion of a vehicle as a "gun rest" for the purpose of firing a weapon. The following typify cases which fall into this category: Fidelity and Casualty Company of New York v. Lott, 273 F.2d 500 (5th Cir. 1960); National Farmers Union Property and Cas. Co. v. Gibbons, 338 F.Supp. 430 (D.N.D.1972); and Norgaard v. Nodak Mutual Insurance Company, 201 N.W.2d 871 (N.D.1972). Although Lott held there was a causal connection between the use of a vehicle as a gun rest for a weapon and the resultant wounding of a passenger when the weapon was fired, and therefore coverage was afforded under the insuring agreement of an automobile liability policy, Gibbons and Norgaard reached the opposite conclusion on the theory that use of a vehicle as a gun rest constituted a use foreign to the vehicle's inherent use.

A fourth category of cases may be fittingly described as involving the accidental discharge of guns resting in or being removed from gun racks permanently attached to vehicles. The following typify cases which fall into this category: Reliance Ins. Co. v. Walker, 33 N.C.App. 15, 234 S.E.2d 206 (1977), and Transamerica Ins. v. United Pac. Ins., 20 Wash.App. 138, 579 P.2d 991 (1978), aff'd 92 Wash.2d 21, 593 P.2d 156 (1979). These cases appear to pivot on the rationale that the presence of...