Mid-Century Ins. Co. TX v. Lindsey

• Decision Date: 09 September 1999
• Docket Number: MID-CENTURY
• Citation: 997 S.W.2d 153
• Parties: (Tex. 1999) INSURANCE COMPANY OF TEXAS, A DIVISION OF THE FARMERS INSURANCE GROUP OF COMPANIES, PETITIONER v. RICHARD LINDSEY, RESPONDENT NO. 97-0449
• Court: Texas Supreme Court

Page 153

997 S.W.2d 153 (Tex. 1999)

MID-CENTURY INSURANCE COMPANY OF TEXAS, A DIVISION OF THE FARMERS INSURANCE GROUP OF COMPANIES, PETITIONER v. RICHARD LINDSEY, RESPONDENT

NO. 97-0449

IN THE SUPREME COURT OF TEXAS

Argued October 20, 1998

Decided April 8, 1999

Rehearing Overruled September 9, 1999

ON APPLICATION FOR WRIT OF ERROR TO THE COURT OF APPEALS FOR THE SIXTH DISTRICT OF TEXAS

JUSTICE HECHT delivered the opinion of the Court, in which CHIEF JUSTICE PHILLIPS, JUSTICE OWEN, JUSTICE ABBOTT, JUSTICE HANKINSON, and JUSTICE O'NEILL join.

The question is whether the underinsured motorist provision of a standard Texas personal auto policy covers the insured's bodily injuries resulting from the unintentional discharge of a shotgun on a gun rack in a pickup truck parked nearby. The answer, in this case, depends on whether, within the meaning of the policy, the injuries resulted from "an accident" "aris[ing] out of" the "use" of the truck. The district court granted summary judgment for the plaintiff, respondent in this Court, and the court of appeals affirmed.¹ We affirm.

I

Richard Metzer and his wife had been fishing with their nine-year-old son when the boy returned to Metzer's pickup parked nearby to retrieve his coveralls. Finding the truck locked, the boy climbed into the bed and attempted to enter the cab through the truck's sliding rear window, which was open a few inches. In so doing, he accidentally touched a loaded shotgun resting in a gun rack mounted over the rear window, causing the gun to discharge. The buckshot struck Richard Lindsey, who was seated in his mother's car parked next to the pickup. Lindsey's wife and mother, also seated in the car, were not struck by the gunshot.

Lindsey and his wife sued Metzer and settled for the $20,000 policy limits on his truck, which were far less than Lindsey's total damages. The Lindseys then claimed the $50,000 limits of the uninsured/underinsured motorists coverage of his mother's policy issued by the Mid-Century Insurance Company of Texas, a division of the Farmers Insurance Group. Mid-Century, who had consented to the Lindseys' settlement with the Metzers, denied the claim on the ground that there had been no physical contact between the two vehicles. The Lindseys then sued Mid-Century for breach of contract, breach of the duty of good faith and fair dealing, breach of warranty, and violations of the Deceptive Trade Practices-Consumer Protection Act and the Insurance Code. The Lindseys and Mid-Century all moved for summary judgment on the contract claim, and the district court granted the Lindseys' motion and severed the order, making it an appealable judgment. The court of appeals affirmed.² We granted Mid-Century's application for writ of error.³

II

Mid-Century's policy states:

We will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured [or underinsured] motor vehicle because of bodily injury sustained by a covered person, or property damage, 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 [or underinsured] motor vehicle.

The parties' sole dispute concerning the applicability of this provision is over whether Lindsey's injuries were caused by an accident arising out of the use of Metzer's truck. Taking each of Mid-Century's arguments in turn, we consider, first, whether Lindsey's injuries were "caused by an accident", and second, whether Metzer's liability for Lindsey's injuries "[arose] out of the . . . use" of Metzer's truck.

A

Mid-Century's policy does not define "accident", but we have held that an injury is accidental if "from the viewpoint of the insured, [it is] not the natural and probable consequence of the action or occurrence which produced the injury; or in other words, if the injury could not reasonably be anticipated by insured, or would not ordinarily follow from the action or occurrence which caused the injury."⁴ An injury caused by voluntary and intentional conduct is not an accident just because "the result or injury may have been unexpected, unforeseen and unintended."⁵ On the other hand, the mere fact that "an actor intended to engage in the conduct that gave rise to the injury" does not mean that the injury was not accidental.⁶ Rather, both the actor's intent and the reasonably foreseeable effect of his conduct bear on the determination of whether an occurrence is accidental. "[A]n effect that 'cannot be reasonably anticipated from the use of [the means that produced it], an effect which the actor did not intend to produce and which he cannot be charged with the design of producing, is produced by accidental means.'"⁷

Metzer's son intended only to gain entry to the truck. He did not intend to cause the shotgun to discharge or Lindsey to be injured, nor was it reasonably foreseeable that either consequence would result from the boy's trying to enter the pickup through the rear window. Metzer's son was not playing with the gun or acting recklessly. There is no evidence that he even knew it was loaded. His injuring Lindsey was an accident.

Mid-Century argues, however, that by "accident" the policy means "auto accident" or "motor vehicle accident", as evidenced by the use of the latter phrases throughout the policy. An auto accident, Mid-Century argues, requires a collision. Assuming that "auto accident" is a more restrictive term in the policy than "accident", and that a fair construction of the policy as a whole requires that the restriction be implied in the uninsured/underinsured motorist provision where it does not appear, we do not agree that the term excludes the occurrence here. In Farmers Texas County Mutual Insurance Co. v. Griffin we held that "'[t]he term "auto accident" refers to situations where one or more vehicles are involved with another vehicle, object, or person.'"⁸ A drive-by shooting, we concluded, was not an auto accident.⁹ The opinion we quoted, in the case of State Farm Mutual Insurance Co. v. Peck, concluded that a dog bite inflicted while the victim was in a car was not an auto accident.¹⁰ Nothing in the language or holding of either case suggests that an "auto accident" requires a collision or excludes occurrences like the one in this case.

We therefore conclude that Lindsey's injuries were "caused by an accident" within the meaning of Metzer's policy.

B

For liability to "arise out of" the use of a motor vehicle, a causal connection or relation must exist between the accident or injury and the use of the motor vehicle.¹¹ The use required is of the vehicle qua vehicle, rather than simply as an article of property.¹² Whether a person is using a vehicle as a vehicle depends not only on his conduct but on his intent.¹³ Thus, in LeLeaux v. Hamshire-Fannett Independent School District we held that if a vehicle is only the locational setting for an injury, the injury does not arise out of any use of the vehicle.¹⁴ In that case, a high school student jumped up from where she had been sitting in the open rear doorway of an empty school bus and hit her head on the door frame. We explained:

The bus in this case was not in operation; it was parked, empty, with the motor off. The driver was not aboard; there were no students aboard. The bus was not 'doing or performing a practical work'; it was not being 'put or [brought] into action or service'; it was not being 'employ[ed] or appl[ied] to a given purpose'. The bus was nothing more than the place where Monica happened to injure herself.¹⁵

We reached a similar conclusion in National Union Fire Insurance Co. v. Merchants Fast Motor Lines, Inc., a case involving claims and circumstances more closely related to the case now before us. The issue there was whether a sufficient connection existed between a truck driver's alleged negligent discharge of a firearm, striking a passenger in a van traveling alongside, and the operation of the truck, to invoke the truck insurer's duty to defend the passenger's claim against the truck driver.¹⁶ We concluded that while defendant was clearly using his truck as a truck, plaintiff failed to allege "even a remote causal relationship" between that use and the shooting.¹⁷ We reasoned that "the mere fact that an automobile is the situs of the accident is not enough to establish the necessary nexus between the use and the accident to warrant the conclusion that the accident resulted from such use."¹⁸

Two well-established treatises on insurance law, Couch on Insurance and Appleman's Insurance Law and Practice, distill from numerous cases throughout the country the following test for determining whether an injury arises out of the use of a motor vehicle for purposes of auto liability insurance coverage:

For an injury to fall within the "use" coverage of an automobile policy (1) the accident must have arisen out of the inherent nature of the automobile, as such, (2) the accident must have arisen within the natural territorial limits of an automobile, and the actual use must not have terminated, (3) the automobile must not merely contribute to cause the condition which produces the injury, but must itself produce the injury.¹⁹

Two Texas courts of appeals have used these factors to conclude that a drive-by shooting does not arise out of the use of a vehicle.²⁰ We agree that the factors, though unavoidably abstract, are helpful in focusing the analysis, although we neither read the treatises as proposing an absolute test, nor do we regard the factors as such. The third factor is especially troublesome because of the difficulty in many circumstances of deciding what role a vehicle, as opposed to other things, played in producing a particular injury, as shown by the cases cited by Couch and Appleman.²¹ The third factor does not create this difficulty, however, but simply exposes it in the arising-out-of-use test for coverage. The degree of the vehicle's involvement in...