National Family Ins. Co. v. Boyer, 47962.
| Decision Date | 02 June 1978 |
| Docket Number | No. 47962.,47962. |
| Citation | 269 NW 2d 10 |
| Parties | NATIONAL FAMILY INSURANCE COMPANY, Respondent, v. Lonnie BOYER, et al., Defendants, and Paul Voigt, intervenor, Appellant. |
| Court | Minnesota Supreme Court |
Gray, Plant, Mooty, Mooty & Bennett and James S. Simonson and David R. Kelly, Minneapolis, for appellant.
Rufer, Hefte, Pemberton, Schulze, Sorlie & Sefkow and Morrison, Kershner, Fergus Falls, for respondent.
Heard before ROGOSHESKE, YETKA, and SCOTT, JJ., and considered and decided by the court en banc.
This is an appeal from the judgment entered pursuant to an order of the Becker County District Court granting summary judgment in favor of respondent, National Family Insurance Company (National), which had sought a declaratory judgment delineating the coverage afforded by an automobile insurance policy it had issued to defendant Lonnie Boyer.
Boyer had shot intervenor-appellant, Paul Voigt. Voigt had obtained a judgment against Boyer for $800,000. Boyer's homeowner's insurance carrier, defendant Foremost Insurance Company, had defended him and eventually settled with Voigt. National had denied coverage. Voigt admits that this was a proper case for summary judgment since there was no issue of material fact, but claims that the court's ruling was erroneous. We affirm.
The issue in this case is whether there is coverage for the shooting under Boyer's automobile insurance policy.
On November 8, 1975, Voigt, then age 21, was in Detroit Lakes, Minnesota, where he had driven a busload of campers as part of his job as a school bus driver. He and his fellow driver, Steven Alger, had gone that evening to the Erie Junior, a restaurant, where, beginning about 8:30 p. m., they each had two drinks, dinner, and then two more drinks in the bar.
That same day Boyer and his friend Earl Senn had been deer hunting on a farm owned by Senn's brother, having spent the previous night drinking at a VFW club and driving around looking for the farm. They had an early dinner at the farm and then drove to the Erie Junior, having about three beers each on the way. Boyer also had three or four swallows out of a bottle of whiskey he had in the car. At the Erie Junior the two men each had about six more drinks. Senn got in an argument with a man at the bar, and one of the man's friends joined in; Boyer was momentarily out of the room. It appeared that a fight was imminent. Alger and Voigt, apparently for no reason, moved to stand behind Senn in a supportive way, and the tension dissipated.
When Boyer returned, he, Senn, Alger, and Voigt struck up a conversation. Alger and Voigt wanted to go somewhere with a livelier atmosphere; Boyer and Senn suggested another club, the Broken Wheel. Because Alger and Voigt had no transportation, having arrived at the Erie Junior in a car driven by another bus driver, who had then gone to a movie, Boyer and Senn offered them a ride. They left the Erie Junior together and arrived at the Broken Wheel about 10 p. m. En route to the Broken Wheel, Boyer, who was driving, showed Alger and Voigt a .44 Ruger revolver which had been under the seat. Voigt remembered Boyer saying, "This gun isn't for you." Boyer and Senn each had another beer during the 6-mile trip.
The group stayed at the Broken Wheel for about a hour, during which Boyer had between two and seven more drinks. Shortly before 11 p. m. Alger and Voigt asked Boyer and Senn for a ride back to the Erie Junior, in order to make a connection with their ride back to the camp. Boyer, Senn, and Alger then left the bar and walked into the parking lot. Alger and Senn, noticing that Voigt was missing, went back to get him while Boyer went on to the car.
Boyer, intending that Senn drive, sat in the front passenger seat and picked up the pistol. He had the door open and, apparently for no reason, fired the pistol twice into the air, holding it in the space between the car and the open door. Then Boyer decided that because there was hunting gear in the back seat Voigt should ride in the middle of the front seat; "So," he testified, "I swung my feet out the car and put my right hand up in the air like to get out, put my hand forward and the gun was in that hand and at that time the gun went off." At this point, Voigt was close to the car. He testified that he was "in the process of opening" the right rear door so he could get into the back seat of the car. Either the first or the third shot hit Voigt in the arm, passing through his body, and came to rest against his spinal cord, causing permanent paralysis. Boyer stated in his deposition that he may have caught the hammer of the gun on the inside of the car's roof, but on further examination he testified as follows:
1. Under the language of the policy, the trial court found as a matter of law that Voigt's injury was not one "arising out of the ownership, maintenance or use of the owned automobile * * * including the loading and unloading thereof * * *."1
Whether or not Boyer and Voigt were making "use" of the car when Voigt was shot is a threshold question which should be answered before the issue of whether or not the shooting "arose out of use" of the car is determined. Moreover, cases on this point indicate that the "use" must be one which can be characterized as the use of a car as a car, at least in the sense that if the car is found to be the "mere situs" of the accident, coverage will not exist under the automobile policy. Several categories of "car use" cases have been cited by both parties as shedding light on this issue.
First, there are numerous "missile" cases, where a bottle, firecracker, or some other object is thrown from a moving car, resulting in injury. These cases are not, on the whole, particularly helpful. Where coverage is denied, it is usually because the insured's "voluntary, deliberate act" in committing an intentional tort is considered to be an independent cause which renders the "car use" element incidental. Speziale v. Kohnke, 194 So.2d 485, 487 (La.App.1967). See, McDonald v. Great American Ins. Co., 224 F.Supp. 369, 373 (D.R.I.1963). As noted in Richland Knox Mut. Ins. Co. v. Kallen, 376 F.2d 360, 365 (6 Cir. 1967), "Certainly not every tortious act occurring inside a vehicle constitutes use of that vehicle; and * * * the lighting of a firecracker inside a car does not involve the use of a car, any more than lighting a firecracker during business hours is a business pursuit."
A second category, with greater application to the present facts, consists of cases in which the transportation or storage of dangerous items, including guns, is proposed as a "use" of an automobile. These cases tend to give rise to broad dicta favoring coverage, e. g., the statement by the court in National Indemnity Co. v. Corbo, 248 So.2d 238, 240 (Fla.App.1971), that "`use' extends to any activity involved in the utilization of the covered vehicle in the manner intended or contemplated by the insured." There, the insured driver, who regularly transported a guard dog to a business establishment, left a passenger and the guard dog in the car while he went into a store. This was held to be a covered "use" when the dog bit the passenger. Nevertheless, it seems that in practice the insurer is not held liable for any bizarre "use" the insured can dream up; rather, the test actually applied appears to be foreseeability on the part of the insurer, so that, for example, in finding coverage in another dogbite case a California court pointed out that "the transportation of household pets in family cars is commonplace." Hartford Acc. & Indem. Co. v. Civil Service Employees Ins. Co., 33 Cal.App.3d 26, 32, 108 Cal.Rptr. 737, 741 (1973).
The court in Reliance Ins. Co. v. Walker, 33 N.C.App. 15, 234 S.E.2d 206, certiorari denied, 293 N.C. 159, 236 S.E.2d 704 (1977), used similar language in finding that an automobile insurance policy covered an injury which occurred when a man entering a truck was shot by a rifle which, hanging in a permanently mounted gun rack, discharged for no discernible reason. "Clearly," the court stated, "the transportation of guns was one of the uses to which the truck had been put." 33 N.C.App. 22, 234 S.E.2d 211. Another court, in Travelers Ins. Co. v. Aetna Cas. & Sur. Co., 491 S.W.2d 363, 366 (Tenn.1973), reasoned the same way, that use means use: The United States Fifth Circuit Court of Appeals carried this line of thought to its logical conclusion in Fidelity and Cas. Co. of New York v. Lott, 273 F.2d 500, 502 (5 Cir. 1960), where the court found that use of a car to brace a gun was covered. The court responded to the argument that "the automobile was being `used' as a gun-rest and not as a vehicle" by stating that "the obvious answer to this is that no such limitations were placed on the word `use' by the insurance company in the preparation of its policy." But, in Norgaard v. Nodak Mutual Ins. Co., 201 N.W.2d 871 (N.D.1972), another gun-rest case, the court explicitly rejected the Fidelity and Cas. Co. of New York v. Lott analysis. Perhaps the difference between the two is in the facts: In Lott, it appears that the roof of the car deflected the bullet so that it hit a passenger, whereas in Norgaard the decedent walked into the line of fire, so that the physical structure of the car did not contribute to his injury.
Minnesota has followed North Dakota's "gun-rest" approach. See, Engeldinger v. State Auto. & Cas. Underwriters, 306 Minn. 202, 236 N.W.2d 596 (1975). In that case, an intoxicated person was carried to a parked car,...
To continue reading
Request your trial
-
Mid-Century Ins. Co. TX v. Lindsey
...related to the use of the vehicle as the accident could have occurred in the field, driveway or hunting lodge); National Family Ins. Co. v. Boyer, 269 N.W.2d 10 (Minn. 1978) (holding that no relationship existed between use of automobile for transportation purposes and passenger's gunshot i......