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

• Decision Date: 15 December 1993
• Docket Number: No. 21659,21659
• Citation: 190 W.Va. 526,438 S.E.2d 869
• Court: West Virginia Supreme Court
• Parties: Stephanie JOHNSON and Melinda Davis, Who Sues by Her Friend, Susan Payton, Plaintiffs Below, Appellees, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Corporation, Defendant Below, Appellant.

Page 869

438 S.E.2d 869

190 W.Va. 526

Stephanie JOHNSON and Melinda Davis, Who Sues by Her Friend Susan Payton, Plaintiffs Below, Appellees, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Corporation, Defendant Below, Appellant.

No. 21659.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 21, 1993.

Decided Dec. 15, 1993.

Syllabus by the Court

1. To invoke coverage under an insurance policy provision which extends coverage for use of a non-owned vehicle, there must first be established a causal connection between the use of the motor vehicle and the injury.

2. "A joint venture or, as it is sometimes referred to, a joint adventure, is an association of two or more persons to carry out a single business enterprise for profit, for which purpose they combine their property, money, effects, skill, and knowledge. It arises out of a contractual relationship between the parties. The contract may be oral or written, express or implied." Syl. Pt. 2, Price v. Halstead, 177 W.Va. 592, 355 S.E.2d 380 (1987).

3. "Most courts now reject application of the doctrine of joint enterprise to arrangements to travel together for merely social or recreational purposes." Syl. Pt. 7, Price v. Halstead, 177 W.Va. 592, 355 S.E.2d 380 (1987).

John H. Bicknell, Green, Ketchum, Bailey & Tweel, Huntington, for appellee Johnson.

C. Joseph Stevens, Hamlin, for appellee Davis.

R. Carter Elkins, Laura L. Gray, Campbell, Woods, Bagley, Emerson, McNeer & Herndon, Huntington, for appellant.

WORKMAN, Chief Justice:

State Farm Mutual Automobile Insurance Company ("State Farm") appeals from the October 6, 1992, order of the Circuit Court of Wayne County which awarded judgment to the Appellees, Stephanie Johnson and Melinda Davis. At issue in the declaratory judgment action below was whether State Farm owed liability coverage to the Appellees under a policy provision extending coverage for use of a non-owned car. Having reviewed the record below, we are of the opinion that the limited development of facts regarding the issue of use prevents this Court from resolving the coverage issue. Accordingly, we reverse the decision of the circuit court and remand this case for further factual development concerning the vehicle's use relevant to the issue of coverage.

On May 17, 1991, a pickup truck, driven by Jonathan Lucas and owned by his father, was involved in a one-vehicle accident resulting in the death of both the driver and the individual occupying the passenger seat, Timothy Davis. The Appellees were also passengers in the vehicle, but they were riding in the bed of the pickup truck rather than the cab. The Appellees filed a declaratory judgment action against State Farm, the automobile insurer of Timothy Davis' father, Billy Davis, seeking compensation for the injuries they sustained as a result of the accident. ¹ The policy provision through which they sought coverage was a provision extending coverage for the use of a non-owned car by a relative of Billy Davis. In considering the cross motions for summary judgment, the circuit court ruled that Timothy Davis was "using" a non-owned vehicle at the time of the accident within the meaning of his father's policy with State Farm. State Farm appeals from that ruling, seeking to have this Court determine that the circuit court's interpretation of the term "use" was improper.

The specific issue raised below was whether Billy Davis' automobile insurance policy provided coverage for the actions of Timothy Davis while he was a guest passenger in the vehicle driven by Jonathan Lucas under the use of a non-owned car provision. There is no dispute that Timothy Davis, as the son of his father, was an insured under the State Farm policy. ² There is similarly no dispute regarding the policy's provision of coverage for damages which an insured is liable to pay because of bodily injury to others resulting from the insured's "use" of a "non-owned" automobile. This case involves allegations that both the driver and the passenger occupying the front seat of the vehicle were engaged in drinking alcoholic beverages prior to the accident. Specifically, the complaint alleges that Jonathan Lucas and Timothy Davis were engaged in a "joint venture" to purchase and consume alcoholic beverages which resulted in the intoxication of Jonathan Lucas as well as the resulting accident and injuries sustained by Appellees.

Appellees frame the issue presented as whether the act of substantially encouraging or assisting a vehicle driver's intoxication by a guest passenger constitutes a "use" of the vehicle within the meaning of the automobile insurance policy. They suggest that the law established in Price v. Halstead, 177 W.Va. 592, 355 S.E.2d 380 (1987), which imposed liability on a passenger in a motor vehicle who substantially encourages or assists a driver's intoxication for a third party's injuries resulting from the driver's alcohol impairment, ³ should be extended to this case. We note at this juncture that because the law announced in Price is rooted in negligence principles, it is not controlling in a case such as this which involves application and construction of an insurance contract.

Since the term "use" is undefined in the policy at issue, we must examine how the term has been previously construed by this Court and other tribunals. The term "use" is not synonymous with the term "operate;" it is a much broader term. To illustrate, the term "use" has been held to include injuries resulting from a slip and fall incident which occurred during the loading and unloading of a vehicle, Ohio Casualty Insurance Group v. Robinson, 127 Mich.App. 138, 338 N.W.2d 898 (1983); action taken by a bus driver to maintain order, Suburban Service Bus Co. v. National Mutual Casualty Co., 237 Mo.App. 1128, 183 S.W.2d 376 (1944); the explosion of a beer bottle due to the hot interior of a vehicle parked in the sun, Government Employees Insurance Co. v. Batchelder, 421 So.2d 59 (Fla. Dist. Ct.App.1982); the accidental asphyxiation of a minor child, resulting from the mother's use of the vehicle exhaust to commit suicide, Classified Insurance Corp. v. Vodinelich, 354 N.W.2d 63 (Minn.Ct.App.1984); and an attack by a dog on a passenger, Farmers Insurance Co. v. Till, 170 Ariz. 429, 825 P.2d 954 (1991); see generally cases collected at 12 Mark S. Rhodes, Couch on Insurance § 45:64 (2d ed. 1981 & Supp.1993); 6B John A. Appleman & Jean Appleman, Insurance Law and Practice § 4316 (1979 & Supp.1992).

In State Farm Mutual Automobile Insurance Co. v. Allstate Insurance Co., 154 W.Va. 448, 175 S.E.2d 478 (1970), this Court analyzed the issue of permissive use ⁴ and noted that " '[i]t is perfectly clear that an automobile is being used by an individual who is traveling in it regardless of whether it is being operated by him or another.' " Id. at 452, 175 S.E.2d at 481 (quoting Maryland Cas. Co. v. Marshbank, 226 F.2d 637, 639 (3rd Cir.1955)); see also 6B Appleman, supra, § 4316 at 343 ("person clearly could be 'using' an automobile without operating it personally"). Inherent in the concept of "use" is the exercise of control over the vehicle. See 12 Couch, supra, § 45:64 at 302. The Fourth Circuit Court of Appeals, in applying West Virginia law, ruled that insurance policy provisions regarding liability coverage for "the use of a nonowned automobile, like the standard omnibus clause, should receive a liberal interpretation in favor of the insured to protect not only him, but the general public as well." State Farm Mut. Auto. Ins. Co. v. United States Fidelity & Guar. Co., 490 F.2d 407, 409 (4th Cir.1974).

This Court recently commented in Baber v. Fortner ex rel. Poe, 186 W.Va. 413, 412 S.E.2d 814 (1991), that the "phrase 'arising out of the ownership, maintenance or use' in automobile insurance policies has been given a broad interpretation." Id. at 416, 412 S.E.2d at 817 (footnote omitted). Although the insurance phrase--"arising out of the ownership, maintenance or use"--is not the specific policy language at issue here, the cases interpreting the "use" term included in that phrase are instructive concerning the term "use" as it pertains to the policy at hand. ⁵ At issue in Baber, was whether an intentional shooting which occurred from within the cab of a stationary pickup truck was an act "arising out of the ownership, maintenance, operation or use" of the vehicle within the meaning of the policy. Id. at 417-18, 412 S.E.2d at 817-18. Citing the principle that a causal connection must be established between the use of the vehicle and the injury to invoke coverage under the "arising out of the ... use" clause, and further that the causal connection must be forseeably identifiable with the normal use of the vehicle, we determined in Baber, that the intentional shooting from the cab of the pickup truck did not constitute an act arising out of the ownership, maintenance, or use of the vehicle. Id. at 417-18, 412 S.E.2d at 818-19 (citing Detroit Auto. Inter-Ins. Exch. v. Higginbotham, 95 Mich.App. 213, , 290 N.W.2d 414, 419 (1980)). This Court reasoned that the shooting was not " 'foreseeably identifiable with the normal use of the vehicle' " and that "[t]he vehicle functioned merely as the situs of a shooting which could easily have occurred elsewhere...." 186 W.Va. at 418, 412 S.E.2d at 819.

The causal connection principle discussed in Baber is equally applicable to insurance provisions pertaining to use of a non-owned vehicle. Accordingly, we hold that to invoke coverage under an insurance policy provision which extends coverage for use of a non-owned vehicle, there must first be established a causal connection between the use of the motor vehicle and the injury. Appellees maintain that Timothy Davis' "use" of the vehicle is based not on his mere occupancy of the vehicle, but on his assistance in the intoxication of Jonathan Lucas. Yet, the record lacks any evidence that Timothy Davis did in fact encourage or assist...