Kohl v. Union Ins. Co.

• Decision Date: 22 December 1986
• Docket Number: 84SC387,Nos. 84SC381,s. 84SC381
• Citation: 731 P.2d 134
• Parties: Rex A. KOHL and Tony L. Martino, Petitioners, v. UNION INSURANCE COMPANY, a Nebraska corporation, Respondent. Carol Sue CONNELLY, Petitioner, v. UNION INSURANCE COMPANY, a Nebraska corporation, Respondent.
• Court: Colorado Supreme Court

Page 134

731 P.2d 134

Rex A. KOHL and Tony L. Martino, Petitioners, v. UNION INSURANCE COMPANY, a Nebraska corporation, Respondent.

Carol Sue CONNELLY, Petitioner, v. UNION INSURANCE COMPANY, a Nebraska corporation, Respondent.

Nos. 84SC381, 84SC387.

Supreme Court of Colorado,

En Banc.

Dec. 22, 1986.

Rehearing Denied Feb. 9, 1987.

McDermott, Hansen, Anderson & Reilly, Leland P. Anderson, Denver, for petitioners Rex A. Kohl and Tony L. Martino.

McDermott, Kiehnhoff & Meconi, John A. McDermott, Canon City, for petitioner Carol Sue Connelly.

Hall & Evans, Richard A. Hanneman, Gordon L. Vaughan, Denver, for respondent.

ERICKSON, Justice.

We granted certiorari to review the court of appeals decision in Union Insurance Co. v. Connelly, 694 P.2d 354 (Colo.App.1984), which affirmed a trial court determination that the accidental discharge of a rifle did not arise from the use of the insured's vehicle for purposes of coverage under an automobile insurance policy. We reverse and remand with directions.

I.

The facts are not in dispute. On October 12, 1980, Carrol Ray Weaver, Phyllip Connelly, Terry Clear, Rex Kohl, and Tony Martino were returning from a hunting trip in the mountains west of Canon City, Colorado. Kohl and Martino were in one vehicle, Connelly and Clear in another, and Weaver in a third. Weaver's hunting rifle was in a gun rack mounted above the dashboard of his jeep.

On the road back to Canon City, the group stopped for refreshments at a store in Cotopaxi, Colorado. When Weaver arrived, the other hunters had left their vehicles and were conversing in the parking lot. Weaver parked his jeep alongside the other hunters, and joined the group. After a short conversation, Weaver returned to his jeep to retrieve a gas can.

While reaching inside the jeep to get his key to the gas cap, Weaver decided to remove his rifle from the gun rack, unload it, and secure it in a scabbard for the trip home. As Weaver removed the weapon from the gun rack, the rifle discharged. Kohl and Martino were seriously injured, and Connelly was killed.

Kohl, Martino, and the estate of Connelly filed claims with Weaver's automobile insurance carrier, Union Insurance Co. (Union). In response, Union filed this action for declaratory judgment to determine whether the accident was covered by Weaver's insurance. After limited discovery, all parties filed motions for summary judgment. The trial court granted Union's motion, and held that the claimants' injuries were not sufficiently related to Weaver's use of his automobile to support the claims filed with Union. The court of appeals affirmed and concluded that the injuries arose out of the use of the rifle, rather than the use of the automobile. The claimants petitioned for certiorari, and we consolidated the cases for review.

II.

Weaver's automobile insurance liability policy provides that Union "will pay damages for bodily injury or property damage for which any covered person becomes legally responsible because of an auto accident." A covered person is defined in the policy as "[the insured] or any family member for the ownership, maintenance or use of any auto or trailer." Weaver's policy therefore embraces the statutorily required minimum level of coverage set forth in section 42-7-413(c), 17 C.R.S. (1984):

The policy of liability insurance shall insure every [insured] person on account of the maintenance, use, or operation of the motor vehicle ... against loss from the liability imposed by law; for damages, including damages for care and loss of services arising from such maintenance, use, or operation to the extent and aggregate amount, exclusive of interest and costs, with respect to each such motor vehicle, in the amounts specified in section 42-7-103(2). ¹

(Emphasis added.)

An accident occurs "on account of the use of a motor vehicle" if the injury that forms the basis of the claim is causally related to a conceivable use of the insured vehicle that is not foreign to its inherent purpose. Azar v. Employers Casualty Co., 178 Colo. 58, 495 P.2d 554 (1972); Mason v. Celina Mutual Insurance Co., 161 Colo. 442, 423 P.2d 24 (1967). To establish the requisite causal relationship, the claimant must establish that the accident would not have occurred but for the vehicle's use. ² Titan Construction Co. v. Nolf, 183 Colo. 188, 515 P.2d 1123 (1973). See also, Trinity Universal Insurance Co. v. Hall, 690 P.2d 227, 230 (Colo.1984). The claimant need not establish that the accident occurred while the vehicle was moving, or that the vehicle was the sole cause of the accident; it is sufficient that the claimants demonstrate that the injury "originated in," "grew out of," or "flowed from" a use of a vehicle. Azar v. Employers Casualty Co., 178 Colo. at 61, 495 P.2d at 555 (citations omitted).

Union asserts that transportation of a rifle for the purpose of hunting is not a use within the inherent purpose of Weaver's jeep. We do not agree. The transportation of hunters and their weapons to areas where they can pursue their sport is undeniably a conceivable use of a four-wheel-drive vehicle. A jeep is specially designed to perform on the rugged terrain often associated with hunting areas, and Weaver had installed a gun rack in his vehicle to facilitate that use of his jeep. This case is therefore distinguishable from those in which an automobile was used for a purpose foreign to its design. See, e.g., Norgaard v. Nodak Mutual Insurance Co., 201 N.W.2d 871 (N.D.1972) (the insured's use of his parked vehicle as a gun rest was not a covered use within the meaning of the insured's automobile policy); Hutchins v. Mills, 363 So.2d 818 (Fla.App.1978) (an automobile liability insurance policy did not provide coverage for the accidental shooting of another while the insured was standing in the bed of his parked truck), cert. denied, 368 So.2d 1368 (Fla.1979). We therefore hold that Weaver's use of the jeep for transportation and to carry his weapon for hunting purposes is a covered use that may form the basis of a compensable claim.

Union also contends that Weaver's use of his jeep was not causally related to the rifle's accidental discharge. We disagree. In Titan Construction Co. v. Nolf, 183 Colo. 188, 515 P.2d 1123 (1973), we held that an insurer was liable to a worker who was injured during the unloading of a cement truck when a pipe connected to the truck knocked a brick off the roof of a building under construction. We stated:

[Causation exists] if the accident would not have occurred except for the unloading of the insured vehicle.... We do not hold that the "but for" doctrine should apply when there is a lack of relationship between the truck and the accident. We suppose that, at least until further cases are determined by the Court of Appeals and this court, the sufficiency of the causative relationship must be made on an ad hoc basis. We hold that there was a sufficient relationship here.

We correctly noted in Titan Construction Co. that there is a distinction between injuries that are related to the use of an automobile, and injuries that are related to an automobile only because they coincidentally occurred in the vehicle. That distinction supported our decisions in Mason v. Celina Mutual Insurance Co., 161 Colo. 442, 423 P.2d 24 (1967), and Azar v. Employers Casualty Co., 178 Colo. 58, 495 P.2d 554 (1972), in which we held that firearm injuries occurring fortuitously in an automobile did not arise from the "use" of the insured vehicle. In Mason, we held that injuries occurring while three youths were toying with a pistol in the insured's vehicle did not arise out of a covered use of the automobile. We stated:

Here no causal connection between the discharge of the pistol and the stopped vehicle was shown, as is required to afford coverage under such a policy. Even though in a technical sense it might be argued that Donald was using the vehicle at the time the shot was fired, for he was sitting in it, such a use, however, is not the type of use contemplated by the policy in question where the injury would have to be one originating from the use of the vehicle as such.

Id. 161 Colo. at 444, 423 P.2d at 25.

In Azar, a hunter attempted to shoot a rabbit from inside his parked automobile. As he was bringing the rifle back into the car, the weapon discharged and injured his companion. We rejected the victim's claim that the insured's policy covered the accident, and said:

No contention was made that the vehicle in any way contributed to or was connected with accidental discharge of the firearm. The only relationship of the vehicle to the accident was the presence of the tort-feasor and the injured person in the automobile at the time of the infliction of the injuries.... In our view, it cannot reasonably be said that the discharge of the weapon in this case originated from, grew out of or flowed from the use of the vehicle. Rather, the injury originated from, grew out of or flowed from the use of the firearm.

Id. 178 Colo. at 60-61, 495 P.2d at 555. See also Carter v. Grain Dealers Mutual Insurance Co., 10 Ark.App. 16, 660 S.W.2d 952 (1983) (where the only connection between a shooting and the use of the vehicle was that the shooting victim and the insured happened to be in the automobile when the accident occurred, the victim's estate could not recover accidental death benefits under the insured's policy); Love v. Farmers Insurance Group, 121 Ariz. 71, 588 P.2d 364 (App.1978) (the beating death of the insured inside his own vehicle was not causally related to the ownership, use, and maintenance of his automobile).

In the present case, the evidence is clear that the claimants' injuries were causally related to the use of Weaver's jeep. The accident occurred while Weaver was lifting the rifle out of the jeep's gun rack preparatory to unloading the rifle and safely storing it for the journey home. Weaver's actions were intimately related to his use of the vehicle as...