Hamidian v. State Farm Fire & Cas. Co., 67266
| Decision Date | 22 May 1992 |
| Docket Number | No. 67266,67266 |
| Citation | 251 Kan. 254,833 P.2d 1007 |
| Court | Kansas Supreme Court |
| Parties | Ashraf HAMIDIAN and the Estate of Saed B. RAZIZADEH, by and through the Executor, Seid Razizadeh, Appellants, v. STATE FARM FIRE & CASUALTY COMPANY, an Illinois corporation, Appellee. |
Syllabus by the Court
In an action by an injured passenger and the estate of the deceased driver seeking recovery under uninsured motorist coverage and personal injury protection benefits contained in an automobile liability insurance policy, the death and injuries having occurred by the victims being shot after a minor collision, the record is examined and it is held: The district court did not err in entering summary judgment in favor of defendant insurance company on the grounds the death and injuries did not arise out of the ownership, operation, maintenance, or use of a motor vehicle.
Gregory M. Dennis, of Perry & Hamill, Overland Park, argued the cause, and Thomas L. Thurston, of the same firm, was with him on the briefs, for appellants.
Michael J. Dutton, of Wallace, Saunders, Austin, Brown and Enochs, Chartered, Overland Park, argued the cause, and was on the brief, for appellee.
This is an action upon an automobile insurance policy seeking recovery of uninsured motorist and personal injury protection (PIP) benefits. The district court entered summary judgment in favor of the defendant insurance company on the grounds that the complained-of injuries and death did not arise out of the ownership, operation, maintenance, or use of a motor vehicle. The plaintiffs appeal therefrom.
The undisputed tragic facts may be summarized as follows. On January 25, 1989, Saed Razizadeh drove his 1985 Oldsmobile to the Midland Theatre to see the musical "Cats." He was accompanied by his mother, Ashraf Hamidian; his brother, Seid Razizadeh; and his brother's girlfriend, Susanne Muller. After the musical ended, Saed, accompanied by the other three members of his party, started the drive back to his Overland Park home. While driving on Shawnee Mission Parkway near Canteberry Road, Saed's vehicle was bumped lightly from the rear by another vehicle. Saed stopped his vehicle, as did the bumping motorist. Saed walked to the back of his vehicle to look for damage. The other driver, an unknown man, walked over to Saed, pulled a gun, and shot Saed twice in the chest. Mrs. Hamidian left the vehicle and started to go to her fallen son. She observed the man taking money and a wallet from Saed's pocket. As Mrs. Hamidian approached the pair, the man shot her twice, once in each arm. The man then fled the scene in his automobile. Saed died from the gunshot wounds.
Phillip D. Mack was arrested and charged with three felonies arising from the incident (Johnson County District Court Case No. K-63467).
Saed's Oldsmobile was insured by State Farm Fire and Casualty Automobile Insurance Company, which included uninsured motorist coverage and PIP benefits under the no-fault coverage. The action herein was commenced by Mrs. Hamidian and Seid Razizadeh as executor for the estate of Saed seeking recovery under the policy.
For their first issue on appeal, plaintiffs contend the district court erred in holding that the injuries to Mrs. Hamidian and the death of Saed did not arise out of the use, operation, maintenance, or ownership of a motor vehicle and, accordingly, the State Farm policy provided neither uninsured motorist coverage nor PIP benefits.
The pertinent policy provisions are as follows:
"SECTION II--NO-FAULT--COVERAGE P
....
"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, benefits for:
....
Insured--means:
1. you or any relative:
a. while occupying a motor vehicle; or
b. struck as a pedestrian by a motor vehicle.
....
....
"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.
Uninsured Motor Vehicle--means:
1. an 'uninsured ' land motor vehicle, the ownership, maintenance or use of which is:
a. not insured or bonded for bodily injury liability at the time of the accident; or
b. insured or bonded for bodily injury liability at the time of the accident; but the insuring company denies coverage or is or becomes insolvent; or
....
3. a 'hit-and-run' land motor vehicle whose owner or driver remains unknown and which strikes:
a. the insured or
b. the vehicle the insured is occupying and causes bodily injury to the insured; or
4. a. 'phantom' land motor vehicle:
a. whose owner or driver remain unknown;
b. that causes bodily injury to the insured; and
c. that does not strike either the insured or the vehicle the insured is occupying."
The policy defines the term "occupying" as follows:
"Occupying--means in, on, entering or alighting from."
There is no claim herein that the policy provisions unduly restrict or dilute the statutory requirements for no-fault coverage (K.S.A. 40-3107) or uninsured motorist coverage (K.S.A.1991 Supp. 40-284), and, accordingly, further reference to said statutes is unnecessary.
In determining whether the injuries arose out of the use, maintenance, or operation of a motor vehicle under the uninsured motorist policy provision, the focus is on the Mack vehicle. In determining whether the injuries arose out of the ownership, maintenance, or use of a motor vehicle under the no-fault coverage, the focus is on Saed's Oldsmobile. However, for our purposes, we really need not separately discuss the vehicles. The Mack vehicle bumped Saed's vehicle. The defendant insurance company characterizes the incident as a bump-and-run robbery. The modus operandi of this type of offense is for the robber to bump the chosen vehicle in order to get the driver to stop and leave his or her vehicle so that robbery may be committed. One could infer that this was what occurred herein, but the district court did not do so.
At the time of the shootings, both vehicles were stopped and driverless. Both drivers were standing behind Saed's vehicle when Mack pulled his gun and shot Saed. Mack was robbing the fallen Saed when Saed's mother was approaching the pair and was, in turn, shot. Neither vehicle was the instrument causing the injuries or being operated at the time of the injuries.
Plaintiffs argue that coverage is afforded because the bump or collision between the two vehicles was the reason Saed stopped his automobile, got out, and walked to the rear to inspect possible damage thereto. They also point out that under Kansas law, a driver is required to stop after being involved in a personal injury or property damage producing accident (K.S.A. 8-1602 and K.S.A. 8-1603) and give certain information (K.S.A. 8-1604). Plaintiffs argue these statutes bring the injuries into the ambit of arising from the use, ownership, maintenance, or operation of a motor vehicle. We do not agree.
What is entailed in the "use" of a motor vehicle was discussed extensively in Esfeld Trucking, Inc. v. Metropolitan Insurance Co., 193 Kan. 7, 392 P.2d 107 (1964). Aside from the fact Esfeld resulted in a 2-2-2 decision, the facts of the case and its posture before this court render it of little assistance herein. A semi-trailer truck, which had formerly been loaded with pipe, was being winched into position close to an oil well by a Caterpillar tractor. In the process, a geologist was run over by the semi-trailer truck. The semi's owner and the Caterpillar's owner each settled with the injured geologist. In the subrogation action before us, the question was whether the Caterpillar's insurer should be indemnified by the semi's insurer. The semi's policy included in its "Definition of Insured" the following:
" '... and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or such spouse or with the permission of either.' " 193 Kan. at 10, 392 P.2d 107.
The question became whether or not the winching of the vehicle was use of the vehicle by the Caterpillar's owner.
In discussing the matter this court stated:
This court then held that the...
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