Garrison v. State Farm Mut. Auto. Ins. Co., No. 71055

• Court: Court of Appeals of Kansas
• Writing for the Court: Before LARSON, P.J., and ROYSE, J., and JEAN F. SHEPHERD; LARSON
• Citation: 894 P.2d 226,20 Kan.App.2d 918
• 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.
• Docket Number: No. 71055
• Decision Date: 21 April 1995

Page 226

894 P.2d 226 20 Kan.App.2d 918 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. No. 71055. Court of Appeals of Kansas. April 21, 1995.
Review Granted June 13, 1995.

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Syllabus by the Court

1. A trial court's decision interpreting provisions of an insurance policy based on an agreed record is not a factual finding. Rather, the interpretation and construction of such a written instrument is a matter of law upon which appellate review is unlimited.

2. 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.

3. To determine if insurance coverage exists for accidental bodily injury arising out of the ownership, maintenance, or use of an insured vehicle, consideration must be given to the injured party's action as well as the party's intent and whether the injury sustained was a natural and reasonable incident or consequence of the use of the vehicle involved.

4. In order for an injury to arise out of the use of an insured vehicle, it need not be the proximate cause of the injury; it is sufficient if there is a causal connection between the injury and the use of the automobile.

5. In order for insurance coverage to exist for accidental bodily injury, there is no requirement that a physical interaction exist between the insured vehicle and a gun which discharges therein 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.

[20 Kan.App.2d 919] 6. Where the owner of a car invites a passenger on a hunting excursion and permits the passenger to occupy the vehicle without regard to whether the safety on the passenger's gun was engaged, it cannot be said the passenger was using the car without the express or implied consent of the owner because the owner did not give the passenger permission to have a loaded gun in the car with the safety off.

7. We hold, under the facts of the case, the injury sustained by the driver of a vehicle when a shotgun inside the vehicle accidentally discharged, was a natural and reasonable incident arising out of the use of the vehicle for hunting purposes.

8. In an action to determine coverage under an automobile insurance policy, where issues raised in good faith are of first impression in Kansas, an award of attorney fees is barred under either K.S.A. 40-256 or K.S.A. 40-3111(b).

Larry D. Tittel, Ness City, for appellant.

Stephen M. Kerwick of Foulston & Siefkin, Wichita, for appellee State Farm Mut. Auto. Ins. Co.

Arthur S. Chalmers of Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, for appellee Dairyland Ins. Company.

Before LARSON, P.J., and ROYSE, J., and JEAN F. SHEPHERD, District Judge, assigned.

LARSON, Judge:

Tad Garrison appeals the trial court's ruling in favor of State Farm Mutual Automobile Insurance Company (State Farm) and Dairyland Insurance Company (Dairyland), holding insurance coverage did not exist for his gunshot wound.

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 [20 Kan.App.2d 920] and counterclaimed for a declaration that the liability portion of Garrison's policy did not

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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

[20 Kan.App.2d 921] "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.' "

Garrison raises three issues: First, that he is entitled to PIP coverage; second, that liability coverage exists under both policies; and third, that the accident arose out of the ownership, maintenance, or use of a motor vehicle. He admits the first two questions are answered by the third, and we view the issue for our determination to be as follows:

Does the accidental discharge of a shotgun, the cause of which is unknown, occurring while a gun is being unloaded from a

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car during a hunting trip, arise out of or result from the ownership, use, and maintenance of an automobile so that the resulting injuries are covered by an automobile insurance policy?

The trial court's decision construing the insurance policies was based on an agreed record without controversy except that the [20 Kan.App.2d 922] cause of the gun's discharge remains unknown. The testimony did not vary on any significant fact except whether the car had reached a complete stop when Pfannenstiel got out, but that was not a material fact in the trial court's decision.

Garrison assumes we review only a question of law and owe no deference to the trial court's decision. We reject State Farm's suggestion that the trial court made a factual finding that no coverage was available and that we are therefore limited to determining if substantial competent evidence supports that finding.

Where the facts are not controverted, we hold that "the construction and effect of a contract of insurance is a matter of law to be determined by the court." Harris v. Richards, 254 Kan. 549, Syl. p 1, 867 P.2d 325 (1994). "As a general rule, the interpretation or construction and meaning and legal effect of written instruments are matters of law exclusively for the court and not questions of fact." Federal Land Bank of Wichita v. Krug, 253 Kan. 307, 311, 856 P.2d 111 (1993). 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. See Kennedy & Mitchell, Inc. v. Anadarko Prod. Co., 243 Kan. 130, 133, 754 P.2d 803 (1988).

Our review is not merely of the insurance policy; 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., requires the owner of every motor vehicle registered in Kansas to have liability insurance including "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....