Hisaw v. State Farm Mut. Auto. Ins. Co.

• Citation: 353 Ark. 668,122 S.W.3d 1
• Decision Date: 19 June 2003
• Docket Number: No. 03-25.,03-25.
• Parties: Glenn HISAW and Elizabeth Hisaw, Husband and Wife v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
• Court: Supreme Court of Arkansas

122 S.W.3d 1

353 Ark. 668

Glenn HISAW and Elizabeth Hisaw, Husband and Wife v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.

No. 03-25.

Supreme Court of Arkansas.

June 19, 2003.

Parker Law Firm, Ltd., by: Tim S. Parker, Eureka Springs, for appellants.

Roy, Lambert & Lovelace, by: Jimmy Roy and James H. Bingaman, Springdale, for appellee.

ROBERT L. BROWN, Justice.

Appellants Glenn and Elizabeth Hisaw, husband and wife, appeal a grant of summary judgment in favor of the appellee, State Farm Mutual Automobile Insurance Company (State Farm). The crux of their argument is that injuries that Mr. Hisaw suffered in the course of his duties as a volunteer firefighter are covered under the underinsured motorist provisions in either his personal automobile insurance policies or those of the Inspiration Point Volunteer Fire Department. State Farm responds that Mr. Hisaw is not covered under his own personal insurance policies, because the accident did not arise out of the operation, maintenance, or use of a motor vehicle. State Farm further maintains that Mr. Hisaw is not covered under the Fire Department's policies, because Mr. Hisaw was not on the list of insured drivers on the declarations pages of the policies.

On July 2, 1996, Clarence and Margarete Stuthers were driving their Ford F150 van in Carroll County down Highway 62 between Rogers and Eureka Springs. Mr. Stuthers had had too much to drink, and a breath test would later reveal a blood-alcohol level of .213%, which was over twice the legal limit. As a result, he lost control of his van and went off the road. The van eventually came to rest off the road on a steep, rocky slope among a stand of trees. The nose of the van was facing downhill at an angle.

Appellant Glenn Hisaw, who was at the time the Fire Chief of the Inspiration Point Volunteer Fire Department, was on his way to the Fire Department when he received a radio call about the accident. He drove to the scene in his own pickup truck and arrived to find the wrecked van and a nurse who had happened on the scene. Mr. Hisaw and the nurse administered first aid to Mr. and Mrs. Stuthers and then waited for emergency personnel. A filed police report puts the time of the Stuthers accident at 5:30 p.m. However, Mr. Hisaw testified in his deposition that he thought it was "2:00 or 3:00, something like that."

A paramedic team arrived, and Mr. Hisaw was present when the team removed Mr. and Mrs. Stuthers from the van. The paramedics strapped Mr. and Mrs. Stuthers to portable stretchers for their removal. Because the front driver's door was wedged shut by trees, the paramedics had to remove Mr. Stuthers through the back middle door located on the passenger side of the van.

Mr. Hisaw escorted the Stutherses to the waiting paramedic vehicle. At some point, a wrecker, additional personnel from the Fire Department, and State Trooper Tim Taylor arrived on the scene. The consensus of the group was that the van could not be moved immediately because its gasoline tank had ruptured, and it was feared that a spark from moving the van might cause a fire. In the meantime, Mr. Hisaw and Trooper Taylor conferred and determined that they would need both Mr. Stuthers's driver's license number and the registration information from the van. Trooper Taylor went to collect the former from Mr. Stuthers, and Mr. Hisaw went to obtain the latter from the van.

The registration information was located on the van's floor between the driver's and passenger's seat. As he was leaning in the van through the middle back door and taking down the information on a notepad, the door swung shut due to force of gravity and hit Mr. Hisaw in the back, causing injuries to his neck and spine. Mr. Hisaw finished recording the information. The Fire Department sprayed flame-retardant foam underneath the vehicle to make it safe to move, and the van was eventually removed safely from the area.

Mr. Hisaw sued Mr. Stuthers for negligence and prayed for compensatory damages in the amount of $1,000,000 and punitive damages of $1,000,000. Mrs. Hisaw also added a claim for loss of consortium and asked for compensatory damages of $500,000 and punitive damages of $500,000. These amounts were subsequently amended to $500,000 compensatory and $200,00 punitive for Mr. Hisaw and $200,000 each for Mrs. Hisaw. Mr. Stuthers's insurance carrier, Progressive Insurance Co., settled for the policy limits of his policy, $25,000, after failing to prevail on a motion for summary judgment. Through an amended complaint filed before the settlement, the Hisaws added State Farm as a defendant together with a claim under the underinsured motorist provisions of both his personal policies and the three policies carried by the Fire Department. Under the personal policies with State Farm, the Hisaws had $50,000 of underinsured motorist coverage per person. The Fire Department's policies with State Farm carried $100,000 of underinsured coverage per vehicle.¹

The case proceeded through discovery, and State Farm moved for summary judgment. On July 19, 2001, the circuit court held a hearing on State Farm's summary-judgment motion. State Farm argued at the hearing that its policies did not cover Mr. Hisaw because his injuries were not caused by an accident "arising out of the operation, maintenance or use of an underinsured motor vehicle," as his personal policies required. State Farm also claimed that Mr. Hisaw was not covered by the Fire Department policies because the declaration pages for those policies contained a specific list of insureds, as required by the policies, and Mr. Hisaw was not on the lists.

Mr. Hisaw replied that the injury he suffered from the door's shutting on him would not have happened had it not been for Mr. Stuthers's admittedly negligent and criminal use of his underinsured motor vehicle. Thus, he contended, he should have been covered under his own personal policies. Mr. Hisaw's argument regarding the Fire Department policies was that all firefighters, including himself, were covered.

The circuit court announced its ruling from the bench and followed up with an order on August 8, 2001. The court first concluded that under both Mr. Hisaw's personal policies as well as the Fire Department's policies, his injury did not arise out of the "operation, maintenance or use of an underinsured vehicle." The court observed that Mr. Hisaw arrived at the scene in his personal truck and not a Fire Department vehicle. The court also reasoned that too much time had passed between the accident and the injury to say that the use of the Stutherses' van caused the injury. The court further remarked: "I find that this was a wrecked vehicle that was not at this time being operated, used or maintained.... It was a crashed vehicle.... [I]t might have been persuasive if.... the injuries had occurred as they were extracting these folks. It didn't. It happened long after they were gone, the rescue was over, and this vehicle had become simply an inanimate object lodged and with the owner taken away." The court, in its written order, made a second finding regarding the Fire Department's policies. The court accepted State Farm's argument and found that Mr. Hisaw could not be considered a named insured under the policy because he was not listed on the declaration pages.

On appeal, the court of appeals affirmed the circuit court on the Fire Department policies but reversed and remanded on the personal policies in a split decision. See Hisaw v. State Farm Mut. Auto. Ins. Co., 80 Ark.App. 239, 94 S.W.3d 349 (2002). State Farm petitioned this court for review, and we granted the petition.

We stated our standard of review for a summary judgment under Ark. R. Civ. P. 56 recently in Fields v. Southern Farm Bureau Cas. Ins. Co., 350 Ark. 75, 87 S.W.3d 224 (2002):

[S]ummary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable men might reach different conclusions from those undisputed facts. Id. at 80, 87 S.W.3d at 226 (citations omitted); see also Ark. R. Civ. P. 56(c)(2). When this court grants a petition for review of a decision by the court of appeals, this court reviews the appeal as if it had been originally filed in this court. E.g., Lewellyn v. Lewellyn, 351 Ark. 346, 93 S.W.3d 681 (2002).

I. Personal Policies

The language in the personally owned State Farm policies which is at issue in this case is the following:

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

Mr. Hisaw argues that the circuit court erred in granting summary judgment because his injury was proximately caused by Mr. Stuthers's drunken driving and the ensuing car wreck. A majority of the court of appeals in Hisaw v. State Farm Mut. Auto. Ins. Co., supra, reversed the summary judgment on the basis that but for the Stuthers accident, Mr. Hisaw would not have been injured.

There is a dearth of...