Kessler v. Amica Mut. Ins. Co.

• Decision Date: 22 January 1991
• Docket Number: No. 90-CC-1092,90-CC-1092
• Citation: 573 So.2d 476
• Parties: Todd Evan KESSLER v. AMICA MUTUAL INSURANCE COMPANY. 573 So.2d 476
• Court: Louisiana Supreme Court

Page 476

573 So.2d 476

Todd Evan KESSLER v. AMICA MUTUAL INSURANCE COMPANY.

No. 90-CC-1092.

573 So.2d 476

Supreme Court of Louisiana.

Jan. 22, 1991.

Christina H. Belew and Judith Perhay, Simon, Peragine, Smith & Redfearn, New Orleans, for Amica Mut. Ins. Co., defendant-applicant.

Richard J. Serpe and John R. Martzell, Martzell, Thomas & Bickford, New Orleans, for Todd Evan Kessler, plaintiff-respondent.

HALL, Justice.

After a near collision between his automobile and another vehicle at an intersection, plaintiff, Todd Kessler, was shot in the head by the driver of the other vehicle who left the scene and has never been identified. Plaintiff filed suit against his insurer, AMICA Mutual Insurance Company (AMICA), claiming uninsured motorist benefits and benefits under a "personal injury protection" (PIP) provision, which is New York's state "no-fault" coverage for actual economic loss, including medical benefits. ¹ Defendant answered, denying uninsured motorist coverage and alleging payment of all claims made under the PIP coverage.

Plaintiff filed a motion for summary judgment, arguing that he is entitled to coverage as a matter of law. Defendant filed a cross-motion for summary judgment denying coverage under the UM provisions of the policy, and seeking a judgment that it had properly paid all claims made under the PIP provisions of the policy. The trial court granted plaintiff's motion for summary judgment and denied defendant's motion. On defendant's appeal, the court of appeal affirmed the judgment of the trial court, with one judge dissenting, in an unpublished opinion noted at 559 So.2d 1010. Having granted defendant's writ application, 565 So.2d 929 (La.1990), we now reverse and render summary judgment in favor of the defendant.

FACTS

The facts of this case are not in dispute. Plaintiff, a Tulane law student at the time, was driving east bound on Zimple Street in New Orleans on November 19, 1987. At the intersection of Zimple and Adams Streets, another vehicle, proceeding south on Adams Street, ran a stop sign and entered the intersection. Plaintiff was forced to swerve and accelerate to avoid striking the vehicle. In the process of this maneuvering, or immediately thereafter, plaintiff blew his horn. Presumably in response to these events, the unidentified motorist fired a shot which entered plaintiff's car through the back window and struck plaintiff in the head. The motorist did not stop and has never been identified. It is uncontested that the vehicles did not collide, and that the shot was fired by the unidentified driver while driving his vehicle through the intersection.

Plaintiff filed a claim with his uninsured motorist carrier, AMICA. While AMICA denied coverage under the UM provisions of its policy, it paid the PIP benefits provided by the policy. Pursuant to an assignment of insurance benefits by which plaintiff assigned his no-fault insurance benefits to his health care providers for services rendered or to be rendered, AMICA paid all claims made for medical expenses directly to plaintiff's health care providers. To date, AMICA has paid $6,589.00 in medical expenses. These are the only PIP benefits plaintiff has claimed.

UNINSURED MOTORIST COVERAGE

The UM provisions of the AMICA policy which are in dispute in this litigation provide in pertinent part:

"A. We will pay damages which an insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury:

1. Sustained by an insured; and

2. Caused by an accident.

The owners' or operators' liability for these damages must arise out of the ownership, maintenance, or use of the uninsured motor vehicle....

"C. '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 hits:

a. you or any family member;

b. a vehicle which you or any family member are occupying; or

c. your covered auto."

Thus, in order for plaintiff to be entitled to UM benefits under this policy, he must prove that three prerequisites have been met. First, plaintiff must prove that the damages which he is entitled to recover from the unindentified motorist were caused by an accident. Second, he must prove that the unidentified motorist's liability arose out of the ownership, maintenance or use of an uninsured motor vehicle. Finally, plaintiff must prove that the unidentified automobile was an uninsured motor vehicle. This third requirement would have to be proven in this case by showing that the vehicle was a hit-and-run vehicle whose owner or operator cannot be identified and which hit plaintiff or his covered automobile.

We note at the outset that if plaintiff has failed to establish one of these conditions of coverage, then he does not come within the coverage of the UM provisions of the policy. Because we hold that the plaintiff has failed to prove that the unidentified motorist's liability arose out of the ownership, maintenance, or use of the uninsured vehicle, we find it unnecessary to reach the issues of whether plaintiff's injuries were caused by an "accident" and whether the other vehicle was an uninsured vehicle under the hit-and-run provisions of the policy.

This court in Carter v. City Parish Government, Etc., 423 So.2d 1080 (La.1982), established the analysis to be used in determining whether an arising-out-of-use provision has been met. The policy in question here provides that the uninsured operator's liability must arise out of the use of the automobile. As we stated in Carter, this provision is designed to limit coverage to liability resulting from conduct of the insured which constitutes both a use of the vehicle and a legal cause of the injury. Thus, the courts are required to answer two separate questions:

(1) Was the conduct of the uninsured of which the plaintiff complains a legal cause of the injury?

(2) Was it a use of the automobile?

The conduct complained of by the plaintiff is the running of the stop sign and the subsequent shooting. However, this sequence of events consisted of two separate acts by the unidentified motorist. Plaintiff would have the court view the injury-causing conduct as one continuous, on-going incident flowing from the unidentified motorist's use of his vehicle. This approach breaks down, however, when the Carter two-step analysis is applied. In order to determine whether the conduct complained of was a legal cause of plaintiff's injury, it is necessary to define the duty which was breached by the offender and to determine whether the risk created by the breach is within the scope of the duty. Defining the duty breached in this case immediately discloses that there were separate, distinct duties violated. The running of the stop sign and the shooting were violations of two separate duties, and for that reason they must be treated as separate acts when applying the Carter analysis. Therefore, we will apply the test announced in Carter to each of these acts.

First, we address the running of the stop sign. Presumably, the shooting was in response to the near collision and probably because the plaintiff blew his horn at the other motorist. But for the motorist's conduct in running the stop sign, plaintiff probably never would have been shot. Therefore, it may be said that this conduct was a cause-in-fact of the plaintiff's injury.

We are next required to ascertain whether the act was a breach of a legal duty imposed to protect against the particular risk involved. LeBlanc v. State, 419 So.2d 853 (La.1982); Jones v. Robbins, 289 So.2d 104 (La.1974); Hill v. Lundin Assoc., Inc., 260 La. 542, 256 So.2d 620 (1972). The duty imposed upon the unidentified driver concerning his conduct in running the stop sign is found in LSA-R.S. 32:123(B). A motorist approaching an intersection marked with a stop sign has a duty to stop before entering the intersection. The uncontroverted evidence indicates that this duty was breached in this case by the unidentified motorist. This duty would include the risk that someone in another vehicle might suffer injuries from a collision with the offender. The duty might include some risks beyond the immediate injuries sustained in the collision, such as injury sustained in a rescue or escape attempt, as was the case in Carter, supra. However, the risk of someone suffering a gunshot wound inflicted by an irate driver was certainly not within the contemplation of the legislature in enacting LSA-R.S. 32:123(B). There is no ease of association between the duty and the risk.

The risk that an occupant of another car might suffer a gunshot wound is not within the scope of the duty to stop at a stop sign. Therefore, the conduct of the unidentified motorist in running the stop sign was not the legal cause of the plaintiff's injury. Thus, the first part of the Carter test has not been met, although the unidentified motorist's conduct in running the stop sign was clearly a use of the vehicle.

The other conduct complained of by the plaintiff is the shooting by the unidentified motorist. The injuries which plaintiff suffered were caused by a bullet striking his head just above his ear. But for the conduct of the other driver in shooting a gun at him or his vehicle, the plaintiff would not have suffered any injury. Therefore, this conduct was a cause-in-fact of the plaintiff's injury.

The duty imposed upon an individual to refrain from shooting at someone or his vehicle is a legal duty imposed upon all individuals, not just automobile drivers, for the safety of society. The risk against which this duty is intended to protect is that one would be injured as a result of being shot. This is the very risk that resulted in plaintiff's injury in this case. The unidentified...