Hulsey v. Mid-America Preferred Ins. Co.

• Decision Date: 11 July 1989
• Docket Number: No. 67822,MID-AMERICA,67822
• Citation: 1989 OK 107,777 P.2d 932
• Parties: Judy Kay HULSEY, administratrix of the estate of Robert Lee Hulsey, deceased, Plaintiff-Appellant, v.PREFERRED INSURANCE COMPANY, Defendant-Appellee.
• Court: Oklahoma Supreme Court

Page 932

777 P.2d 932

1989 OK 107

Judy Kay HULSEY, administratrix of the estate of Robert Lee Hulsey, deceased, Plaintiff-Appellant, v. MID-AMERICA PREFERRED INSURANCE COMPANY, Defendant-Appellee.

No. 67822.

Supreme Court of Oklahoma.

July 11, 1989.

Greg McCracken, Messrs. Miskovsky and McCracken, Oklahoma City, for plaintiff-appellant.

Stephen L. Stratton, Jerry Fraley, Messrs. Cathcart, Gofton & Stratton, Oklahoma City, for defendant-appellee.

OPALA, Vice Chief Justice.

The dispositive issue on certiorari is whether the petition states a claim upon which relief can be granted. We answer in the affirmative.

While driving his pickup late one night, Robert L. Hulsey [insured] received a fatal gunshot wound to the head. The bullet came from another vehicle whose type, driver and occupants, if any, are not identified. ¹ The unidentified vehicle never made physical contact with the insured's truck.

Judy Kay Hulsey [plaintiff], the insured's widow, sued the uninsured motorist [UM] carrier, Mid-America Preferred Insurance Company [insurer], to recover for the loss. She alleges that a hit-and-run driver caused the insured's death.

The insurer moved for summary judgment, arguing that the following terms of the insurance policy preclude recovery:

"We will pay damages which a covered person is entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury:

1. Sustained by a covered person; and

2. Caused by an accident.

"The owner's or operator's liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle....

"Uninsured motor vehicle" means a land motor vehicle or trailer of any type: ...

3. Which is a hit and run vehicle whose operator or owner cannot be identified and which causes an accident resulting in bodily injury to a covered person." [Emphasis by the insurer.]

The insurer argues the policy's UM provisions do not cover murder and, because the "intentional" shooting in controversy did not arise out of the unidentified vehicle's ownership, maintenance or use, the plaintiff cannot recover.

Without revealing the grounds upon which its decision was based, the trial court gave summary judgment to the insurer. ² The Court of Appeals reversed, holding the harm-dealing incident must be viewed from the insured's perspective and, from that vantage point, the death appears to have been accidental. ³ The appellate court further held:

"[A]lthough some causal relationship or nexus must exist between the use of the automobile and the injury, the automobile need not be the instrumentality of the injury nor must the type of conduct which causes the injury be foreseeably identifiable with the normal use of a vehicle. It is for the trier of fact to decide whether the accident arose out of 'use' of an uninsured vehicle."

Among other things, the appellate court incorrectly assumed as an admitted fact that the insured was the targeted victim of an intentional shooting. Other facts were similarly treated as uncontroverted, though they were neither undisputed nor supported by evidentiary material from which but a single inference could be drawn--one in favor of coverage. ⁴ For this reason we now grant certiorari to provide necessary and precedential guidance for the proceedings to follow on remand.

I. SUMMARY JUDGMENT FOR THE INSURER CANNOT STAND

When the insurer sought summary judgment, copies of the policy and some legal authorities from this and other jurisdictions constituted the totality of the material appended to its motion and brief. The plaintiff's response consisted of like attachments. Although both parties referred several times to the "testimony" of various witnesses who had apparently been deposed, no materials extraneous to the pleadings were either tendered for the court's consideration or even filed with the trial court. ⁵ We treat the policy as a part of the plaintiff's petition. It was explicitly identified in that pleading as an attached exhibit, ⁶ even though its copy was not physically appended to it. ⁷

Deposition testimony that is not on file in conformity with 12 O.S.Supp.1986 § 3207(G) ⁸ may not be used as evidentiary material in the summary judgment process. ⁹ By stipulation shown in the record, the parties may tender an abstracted transcript of an unfiled deposition to support their quest for judgment sans trial. ¹⁰ In any event, an appellate court cannot, on review, take notice of any item that was not properly before the trial court. ¹¹ The appellant bears the total responsibility for including in the appellate record all materials necessary to secure corrective relief. ¹² A deficient record may not be supplemented or corrected on rehearing. ¹³

Since, as we appraise the record, no evidentiary materials were tendered below, the insurer's motion below must be treated as though it were one to dismiss for the petition's legal insufficiency rather than as one for summary judgment. ¹⁴ The critical question to be answered is hence whether the petition contains allegations sufficient to state a legally cognizable claim. ¹⁵ We hold that it does.

II.

THE PETITION ALLEGES FACTS WHICH MIGHT SUPPORT RECOVERY

UNDER THE POLICY'S UNINSURED MOTORIST COVERAGE

The petition alleges that 1) while the insured was driving, an unidentified (hit-and-run) driver or passenger of another vehicle shot him; 2) as a result of the gunshot wound, the insured died and 3) his death was "caused by" the hit-and-run driver, or, in the alternative, "directly and proximately caused by the negligence" of that unidentified person. Because these allegations accommodate a host of scenarios, some of which could be actionable, we cannot conclusively rule, as a matter of law and on the basis of plaintiff's petition alone, that her quest for UM protection will fail. ¹⁶ The death could have been caused by a hit-and-run driver or occupant who, while target shooting from a moving or stationary vehicle, missed his intended mark and, instead, wounded the insured. ¹⁷ This scenario would unveil prima facie an unintentional act within the ambit of the insurance policy's hit-and-run UM coverage mandated by the provisions of 36 O.S.1981 § 3636. ¹⁸ The law requires no physical contact with the offending vehicle for recovery under the hit-and-run UM protection. ¹⁹

In both the trial court and in the Court of Appeals this case was incorrectly treated as though the insurer had pressed for summary judgment rather than for the claim's dismissal. Even though the result reached by us today is similar to that of the Court of Appeals, that court's holding incorrectly settled the law of this case with respect to a significant part in controversy. ²⁰ We will not speculate today on what the facts adduced at trial will show, or whether they will indeed develop into a scenario consistent with the parameters of the insurer's UM liability. ²¹

CERTIORARI IS GRANTED AND THE COURT OF APPEALS' OPINION IS VACATED; SUMMARY JUDGMENT FOR THE INSURER IS REVERSED AND THE CASE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS PRONOUNCEMENT.

HARGRAVE, C.J., and HODGES, LAVENDER, DOOLIN and KAUGER, JJ., concur.

SIMMS, ALMA WILSON and SUMMERS, JJ., dissent.

ALMA WILSON, Justice, dissenting:

The majority has misdefined the foundation issue in this case as purely contractual. However, an insurance contract involving uninsured motorist coverage cannot be construed independently of or adversely to the unequivocal, mandatory uninsured motorists policy stated at 36 O.S.1981 § 3636:

§ 3636 Uninsured motorist coverage

(A) No policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be issued, delivered, renewed, or extended in this state with respect to a motor vehicle registered or principally garaged in this state unless the policy includes the coverage described in subsection (B) of this section.

(B) The policy referred to in subsection (A) of this section shall provide coverage therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run vehicles because of bodily injury, sickness or disease, including death resulting therefrom....

The statutory language, above, clearly mandates UM protection for an insured and such protection is not conditioned upon a wrongdoer's state of mind. The sole statutory condition of coverage is that an insured's bodily injury or death, to be compensable, must arise out of the ownership, maintenance or use of a motor vehicle. Thus, the threshold issue which must first be addressed in the present case is the propriety of the insurer's attempt to limit the scope of protection mandated by § 3636 by way of clauses inserted in UM insurance policies.

Here, the insurer has inserted a clause which makes UM protection contingent upon an accidental occurrence. I am of the opinion that this contingency impermissibly dilutes the statutorily mandated protection. Where, for example, a hit and run injury or death is involved, the state of mind of the unknown assailant is not only unknown, but bears zero relevance to the insured's expectation of protection pursuant to 36 O.S.1981 § 3636. The heavy burden which the majority lays upon an individual's right to recover under the mandatory provisions of § 3636 defeats the very policy espoused by the public law statute. This Court has previously examined with critical scrutiny policy provisions which purport to dilute the legislatively mandated uninsured motorist coverage. Keel v. MFA Insurance Co., 553 P.2d 153 (Okla.1976); Biggs v. State Farm Mutual Automobile Insurance Co., 569 P.2d 430 (Okla.1977); Porter v. MFA Mutual Insurance Co. 643 P.2d 302 (Okla.1982); Lake v. Wright, 657 P.2d 643 (Okla.1982); Chambers v. Walker, 653 P.2d 931 (Okla.1982); ...