Garrison v. State Farm Mut. Auto. Ins. Co., 71055

• Decision Date: 08 December 1995
• Docket Number: No. 71055,71055
• Citation: 258 Kan. 547,907 P.2d 891
• Parties: Tad GARRISON, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant/Counterclaimant/Appellee, and Dairyland Insurance Company, Intervenor/Counterclaimant/Appellee, and Kurt Pfannenstiel, Counterclaimant/Defendant, Appellees.
• Court: Kansas Supreme Court

Page 891

907 P.2d 891

258 Kan. 547

Tad GARRISON, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Defendant/Counterclaimant/Appellee and Dairyland Insurance Company, Intervenor/Counterclaimant/Appellee and Kurt Pfannenstiel, Counterclaimant/Defendant, Appellees.

No. 71055.

Supreme Court of Kansas.

Dec. 8, 1995.

Syllabus by the Court

1. Provisions in insurance policies required by the Kansas Automobile Injury Reparations Act, K.S.A. 40-3101 et seq., are to be construed liberally to achieve the legislature's purpose to provide a means of compensating persons promptly for accidental bodily injury arising out of the ownership, operation, or use of a motor vehicle.

2. For insurance coverage to exist for accidental bodily injury, there is no requirement that the vehicle be the proximate cause of the injury or physically contribute to the discharge of the gun where the minimal causal connection between the use of the vehicle and the injury is provided by the foreseeable and reasonable use of the vehicle for hunting.

3. We hold, under the facts of this case, that the injury sustained by the driver when a shotgun inside the car accidentally discharged while being removed from the car was a natural and reasonable incident arising out of the use of the car for hunting.

Larry D. Tittel, Ness City, argued the cause and was on the brief, for appellant.

James D. Oliver, of Foulston & Siefkin, L.L.P., Wichita, argued the cause, for appellees, and Stephen M. Kerwick, of the same firm, was on the brief, for appellee State Farm Mut. Auto. Ins. Co.

Mary Giovanni, of Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita appeared, and Arthur S. Chalmers, of the same firm, was on the brief, for appellee Dairyland Ins. Co.

SIX, Justice:

This is a first-impression automobile insurance coverage case arising from a hunting accident. A shotgun accidentally discharged, injuring Tad Garrison, plaintiff, while Kurt Pfannenstiel, defendant, removed it from Garrison's car. Garrison's car was insured by State Farm Mutual Automobile Insurance Company (State Farm). Pfannenstiel's car was insured by Dairyland Insurance Company (Dairyland).

The district court held that the State Farm and Dairyland policies did not provide liability coverage; the Court of Appeals reversed the district court. The State Farm policy also provided personal injury protection (PIP) benefits for the injuries to Garrison. Garrison v. State Farm Mut. Auto. Ins. Co., 20 Kan.App.2d 918, 894 P.2d 226 (1995).

We granted State Farm's and Dairyland's petitions for review. Our jurisdiction is under K.S.A. 20-3018(b). Dairyland adopts State Farm's arguments.

THE QUESTION

Do injuries caused by an unexplained accidental discharge of a shotgun occurring while the gun is being removed from a car during a hunting trip arise out of or result from the use of the car?

The answer is "yes." We affirm the Court of Appeals.

FACTS

The facts and procedural history are stated in the Court of Appeals opinion:

"Garrison was seriously injured when a shotgun discharged as Kurt Pfannenstiel removed the gun from Garrison's car during a hunting trip. Garrison sued Pfannenstiel for negligence and Garrison's automobile insurer, State Farm, for personal injury protection (PIP) benefits.

"State Farm defended on the basis that the accident did not arise out of the ownership, use, or maintenance of a motor vehicle and counterclaimed for a declaration that the liability portion of Garrison's policy did not afford coverage to Pfannenstiel for Garrison's negligence claim against him. Dairyland, Pfannenstiel's automobile insurance carrier, intervened to seek a ruling that no liability coverage existed under the policy it had issued.

"The case was submitted on an agreed record consisting of the depositions of Garrison and Pfannenstiel plus copies of the respective insurance policies. After reviewing briefs and hearing arguments, the trial court ruled the accident did not arise out of the use of a vehicle and entered judgment in favor of both insurance carriers.

"This unfortunate accident occurred in September 1992, when Garrison and Pfannenstiel went dove hunting in rural Ness County. Garrison drove his State Farm insured car during the entire hunting excursion.

"The two men stopped on several occasions to shoot birds. Each time they entered and left the car they stowed their guns between the front seats along the console with the barrels pointing toward the floorboard.

"After several stops they saw some birds and decided that Pfannenstiel would get out of the car and Garrison would then drive on to the far end of a line of trees and hunt there. Garrison slowed the car; as it approached or came to a stop and Pfannenstiel was getting out of the car, Pfannenstiel's shotgun discharged, striking Garrison in the leg and causing a significant injury. Neither party knew what caused the shotgun to fire. Pfannenstiel did not remember if the shotgun came in contact with any part of the car as it fired, although part of Garrison's injury was caused by the knob of a radio which the blast forced through his leg. Neither Garrison nor Pfannenstiel knows if the safety had been engaged before Pfannenstiel picked up the gun.

"There are essentially three portions of the insurance policies which are in issue. As to Garrison's PIP claim, State Farm contested coverage under the following provision:

'SECTION II--NO FAULT--COVERAGE P

'What We Pay

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

"As to State Farm's counterclaim that liability coverage did not apply to Garrison's tort claim against Pfannenstiel, the following provisions are involved:

'SECTION I--LIABILITY--COVERAGE A

'We will:

'1. pay damages which an insured becomes legally liable to pay because of ... bodily injury to others, and damage to or destruction of property ... caused by accident resulting from the ownership, maintenance or use of your car; and

'2. defend any suit against an insured for such damages....

....

'Who Is an Insured

'When we refer to your car ... insured means:

....

'4. any other person while using such a car if its use is within the scope of the express or implied consent of you or your spouse.'

"The pertinent language of the Dairyland policy provides:

'We promise to pay damages for bodily injury or property damage for which the law holds you responsible because of a car accident involving a car we insure.'

'["Car accident" is defined as] "an unexpected and unintended event that causes injury or property damage and arises out of the ownership, maintenance, or use of a car or other motor vehicle." ' 20 Kan.App.2d at 919-21, 894 P.2d 226.

DISCUSSION

Standard of Review

The Court of Appeals correctly stated the standard of review:

"The issue we consider does not hinge on any factual determination but rather on the interpretation of what the policy requires for an accident to arise out of the ownership, maintenance, or use of a motor vehicle. This is a legal question upon which our review is unlimited." 20 Kan.App.2d at 922, 894 P.2d 226.

The facts were not controverted, therefore the construction and effect of this contract of insurance is a matter of law to be determined by an appellate court. See 20 Kan.App.2d at 922, 894 P.2d 226. Our review must also consider the statute under which the insurance policy was issued: the Kansas Automobile Injury Reparations Act (KAIRA), K.S.A. 40-3101 et seq. KAIRA requires an automobile owner to obtain liability insurance that provides "personal injury protection benefits to the named insured ... for loss sustained ... as a result of injury" including "bodily harm ... resulting from an accident arising out of the ownership, maintenance or use of a motor vehicle." K.S.A.1994 Supp. 40-3104(a), K.S.A. 40-3107(f), and K.S.A.1994 Supp. 40-3103(i). K.S.A. 40-3107(b) requires that every motor vehicle liability insurance policy shall

"insure the person named and any other person, as insured, using any such vehicle with the expressed or implied consent of such named insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of any such vehicle within the United States ..., subject to the limits stated in such policy."

Provisions in insurance policies required by KAIRA are to be construed liberally to achieve the legislature's purpose to provide a means of compensating persons promptly for accidental bodily injury arising out of the ownership, operation, or use of a motor vehicle.

The Court of Appeals Opinion

The Court of Appeals cited and quoted several authorities on the meaning of the terms "arising out of" and "use" of a vehicle. The opinion noted that although the use need not be the proximate cause of the injury, there must be some causal connection between an injury and the use in order for there to be coverage. The causation test was described as: "[T]he use of the vehicle need not be the proximate cause of the injury, but rather it is sufficient if the use of the vehicle is a cause in a more liberal sense." 20 Kan.App.2d at 923, 894 P.2d 226. We agree.

Cases from other jurisdictions supporting coverage as including loading or unloading of a vehicle were discussed. Coverage applies whether the policy expressly defines "use" to include loading or unloading the vehicle. 20 Kan.App.2d at 925-26, 894 P.2d 226. The policy provisions in this case do not expressly define "use" to include loading or unloading of a vehicle.

In addition to the cases cited by the Court of Appeals, the following hunting cases also support coverage: Nationwide Ins. v. Auto-Owners Mut Ins., 37 Ohio App.3d 199, 203, 525 N.E.2d 508 (1987) ("The insured's vehicle was being used to transport the men and their weapons on a hunting trip. This was a proper use of the truck and was foreseeable. As part of this use it was necessary...