Cung La v. State Farm Auto. Ins. Co.

• Decision Date: 26 May 1992
• Docket Number: No. 91SC349,91SC349
• Citation: 830 P.2d 1007
• Parties: CUNG LA, Petitioner, v. STATE FARM AUTOMOBILE INSURANCE COMPANY, Respondent.
• Court: Colorado Supreme Court

Page 1007

830 P.2d 1007

CUNG LA, Petitioner, v. STATE FARM AUTOMOBILE INSURANCE COMPANY, Respondent.

No. 91SC349.

Supreme Court of Colorado En Banc.

May 26, 1992.

Fogel, Keating and Wagner, P.C., Alan Shafner, Charles R. Free, Denver, for petitioner.

Hall & Evans, Alan Epstein, Denver, for respondent.

Justice ERICKSON delivered the opinion of the court.

We granted certiorari to review State Farm Automobile Insurance Co. v. Cung La, 819 P.2d 537 (Colo.App.1991) (State Farm ). The issue before us centers on the interpretation of a State Farm automobile liability policy and the uninsured and no fault provisions in that policy. The petitioner, Cung La, was driving a white 1984 Mustang that was insured by State Farm when he was intentionally shot by a passenger in an uninsured motor vehicle. The court of appeals held that under the uninsured or no fault provision of the State Farm policy the petitioner did not sustain an injury from the use or operation of either the insured Mustang or the vehicle from which the shot was fired. We reverse and remand with directions.

I

On August 7, 1988, petitioner was driving eastbound on I-70 in the insured Mustang when three motor vehicles boxed him in. The three vehicles, also eastbound on the freeway, took part in a maneuver that prevented petitioner from changing the speed or direction of the Mustang and enabled the assailant in one vehicle to shoot the petitioner. Petitioner's vehicle was boxed in by one vehicle in front, one behind, and one on the left side of the Mustang. The assailant in the vehicle to the left of the Mustang fired a shot that went through the windshield of the Mustang and hit the petitioner in the head.

Evidence was presented that on July 31, 1988, the occupants of the assailant's vehicle had been involved in an altercation with the petitioner and other individuals. During the fight, the assailant's group threw rocks and bottles at the Mustang. The fight moved into a nearby restaurant, but the petitioner remained outside with his car to protect it. The shooting incident occurred on the freeway one week later.

According to an investigating officer, the petitioner was shot when the assailant's group was "looking for an opportunity to shoot any one of the ... individuals" they had been in the altercation with the previous week. The investigator testified, and the petitioner contends, that the petitioner was not the primary target and that he was shot because he was driving the white Mustang that the assailant identified during the earlier altercation.

Petitioner filed a claim for no fault and uninsured motorist benefits under the automobile liability policy issued by State Farm. ¹ State Farm sought a declaratory judgment to determine whether its automobile insurance policy on the vehicle provided coverage of the injuries the petitioner sustained in the shooting. The no fault personal injury provision in the insurance policy provides:

We will pay in accordance with the No-Fault Act ² for bodily injury to an insured caused by an accident resulting from the use or operation of a motor vehicle as a motor vehicle....

The uninsured motorist provision of the policy states:

We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle. ³

The trial court found that there were was no genuine issue of material fact and granted summary judgment for State Farm, which was affirmed by the court of appeals.

II

Summary judgment is proper only if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. "The moving party has the burden of establishing the lack of a triable factual issue, and all doubts as to the existence of such an issue must be resolved against the moving party." Churchey v. Adolph Coors Co., 759 P.2d 1336, 1340 (Colo.1988); see, e.g., United States v. Jesse, 744 P.2d 491 (Colo.1987); Abrahamsen v. Mountain States Tel. & Tel. Co., 177 Colo. 422, 494 P.2d 1287 (1972).

III

The court of appeals concluded that, because the petitioner's injuries were caused by the gunshot, they were not covered under the uninsured motorist provision of the State Farm policy. We disagree.

In order to determine whether summary judgment was proper on the petitioner's claim under the uninsured motorist provision, we must determine whether evidence was presented that supports the conclusion that his injuries arose "out of the operation, maintenance or use of an uninsured motor vehicle." The assailant's use of a firearm to shoot the petitioner does not preclude the petitioner's resulting injuries from having arisen out of the use of the uninsured motor vehicle if that vehicle contributed to the injuries and the injuries would not have been sustained but for the assailant's use of the uninsured vehicle. A majority of the states that have dealt with the issue have found a sufficient causal connection under similar facts to invoke uninsured motorist insurance coverage. For example, in Continental Western Insurance Co. v. Klug, 415 N.W.2d 876 (Minn.1987), the Minnesota Supreme Court held that the injury to the insured, who was shot by another motorist as they both drove down the freeway, arose out of the use of the assailant's uninsured motor vehicle. The court concluded that the assailant's car was an active accessory to the assault because the assailant used the car to keep up with the insured for over two miles, used it to maneuver himself into position to shoot the insured, and was driving the car when he shot the insured. In Ganiron v. Hawaii Insurance Guaranty Association, 69 Haw. 432, 744 P.2d 1210 (1987), the Hawaii Supreme Court determined that the insured's injuries arose out of the operation, maintenance, or use of the uninsured vehicle when the insured was shot by an unidentified passing motorist while driving on the freeway. See also Foster v. Lafayette Ins. Co., 504 So.2d 82, 86 (La.App.1987); Shouman v. Nationwide Ins. Co., 42 Ohio App.3d 159, 537 N.E.2d 696, 697 (1988); Willard v. Kelley, 803 P.2d 1124, 1131 (Okla.1990); Hulsey v. Mid-America Preferred Ins. Co., 777 P.2d 932, 937 (Okla.1989); General Accident Ins. Co. of America v. Olivier, 574 A.2d 1240, 1242-43 (R.I.1990); Detweiler v. J.C. Penney Casualty Ins. Co., 110 Wash.2d 99, 751 P.2d 282, 287 (1988).

Other courts have held that gunshot injuries arose out of the use of the insured's automobile for purposes of automobile liability insurance coverage. The words "arise out of the ownership, maintenance, or use" have the same meaning in the uninsured motorist provision of a policy as they do in the liability provision of the policy. Irvin E. Schermer, Automobile Liability Insurance: No-Fault Insurance, Uninsured Motorists, Compulsory Coverage § 24.04, at 24-16.1 (2d ed. 1992 rev.); see Federated Mut. Implement & Hardware Ins. Co. v. Gupton, 357 F.2d 155, 157 (4th Cir.1966) (word "use" in uninsured motorist endorsement has same meaning as in general liability coverages). Section 10-4-609 requires insurers to provide protection against uninsured motorists, unless the insured waives that protection.

[T]he statute ... reflects a strong legislative intent to permit insureds who purchase such coverage to receive the benefits thereof to the extent necessary for full compensation for loss caused by the negligent conduct of financially irresponsible motorists.

Kral v. American Hardware Mut. Ins. Co., 784 P.2d 759, 765 (Colo.1989); see also Alliance Mut. Casualty Co. v. Duerson 184 Colo. 117, 124, 518 P.2d 1177, 1181 (1974). Uninsured motorist coverage permits the insured to recover compensation for loss due to the negligent conduct of uninsured motorists in the same manner that recovery would be permitted for a loss due to the negligence of an insured motorist.

In State Farm Mutual Automobile Insurance Co. v. Davis, 937 F.2d 1415 (9th Cir.1991), an occupant in a vehicle shot and injured the driver of another vehicle while the vehicles were proceeding down the highway. The assailant's automobile insurance liability policy provided coverage for injuries "resulting from the ownership, maintenance or use" of the insured vehicle. ⁴ The Ninth Circuit Court of Appeals found use of assailant's vehicle because the injury would not have occurred without the use of the vehicle. Id. at 1420; see also National Ben Franklin Ins. Co. v. Valdes, 341 So.2d 975 (Fla.1976) (trial court holding that death of person hit by beer mug thrown by passenger in insured automobile arose out of the ownership, maintenance, and use of the assailant's automobile for purposes of automobile liability insurance policy did not conflict with prior Florida case law).

A few states have found no causal connection between an insured's gunshot injuries and the uninsured vehicle from which the shots were fired. Wausau Underwriters Ins. Co. v. Howser, 727 F.Supp. 999 (D.S.C.1990); Kessler v. Amica Mut. Ins. Co., 573 So.2d 476, 477 (La.1991). In Wausau the South Carolina Supreme Court held that gunshot injuries inflicted by a passing motorist were caused by the gunshot, not by the assailant's vehicle. 727 F.Supp. at 1001. We do not find the reasoning in those cases persuasive in Colorado.

Other cases finding no causal connection are factually distinguishable. In Azar v. Employers Casualty Co., 178 Colo. 58, 495 P.2d 554 (1972), this court held that an accidental shooting that occurred inside a vehicle did not "arise out of the use" of the vehicle for purposes of the automobile liability insurance policy. Id. at 61, 495 P.2d at 555. The vehicle in Azar was stopped and there was no contention that the vehicle either "contributed to or was connected" to the shooting. Id. at 60, 495 P.2d at 555; see also Mason v. Celina Mut. Ins. Co., 161 Colo. 442, 423 P.2d 24 (1967) (injuries sustained from discharge...