National Farmers Union Property & Cas. Co. v. Gibbons

• Decision Date: 19 January 1972
• Docket Number: Civ. No. 1080.
• Citation: 338 F. Supp. 430
• Parties: NATIONAL FARMERS UNION PROPERTY AND CASUALTY COMPANY, Plaintiff, v. Clarence GIBBONS, Defendant, and Steven Lesselyoung, Intervening Defendant.
• Court: U.S. District Court — District of South Dakota

338 F. Supp. 430

NATIONAL FARMERS UNION PROPERTY AND CASUALTY COMPANY, Plaintiff, v. Clarence GIBBONS, Defendant, and Steven Lesselyoung, Intervening Defendant.

Civ. No. 1080.

United States District Court, D. North Dakota, Southwestern Division.

January 19, 1972.

Leonard H. Bucklin, Zuger, Bucklin & Zuger, Bismarck, N. D., for plaintiff.

Curtis W. Hanks, Lemmon, S. D., for defendant Clarence Gibbons; F. John Smith, Bismarck, N. D., of counsel.

James A. Clement, Hettinger, N. D., and Johnson & Kelley, Lemmon, S. D., for defendant Steven Lesselyoung.

AMENDED MEMORANDUM AND ORDER

REGISTER, Senior District Judge.

In this action, brought pursuant to the provisions of 28 U.S.C.A., Section 2201, Plaintiff seeks a judgment declaring 1) that it has no obligation to defend Defendant Gibbons in a lawsuit against him by Intervening Defendant Lesselyoung, and 2) that it has no obligation to pay any judgment which might be rendered against Gibbons in the lawsuit against him by Lesselyoung. Diversity jurisdiction is established.

Defendant Gibbons is the named insured in an automobile liability policy issued by the Plaintiff. For purposes of this action, the parties have entered into a written stipulation, the pertinent features of which may be stated thusly: Gibbons and Lesselyoung traveled to the Defendant's farmstead in an automobile owned by Gibbons and described in the policy of insurance issued by the Plaintiff; at some point during the journey the vehicle was stopped, Gibbons dismounted from the vehicle, leaned against it and used the top of the automobile as a support to fire a deer rifle equipped with a telescopic sight; that while the vehicle was so stopped, Gibbons leaned against the right or passenger side, held the rifle in a normal position with his left hand under the forearm of the rifle and his left arm resting across the top of the automobile; Gibbons' purpose in using the top of the automobile as a gun rest was to steady the rifle while shooting at a target; while positioned as described, Gibbons fired two shots; the muzzle of the rifle apparently did not extend beyond the center of the roof of the vehicle when being fired; that as a result of one of the bullets striking the top of the automobile, said bullet was deflected and tore through the top of the car, causing fragments of either the bullet or car top to deflect downward, thereby seriously injuring the Intervening Defendant Lesselyoung, who was seated in the driver's seat.

Subsequently, in an action brought in the District Court of Adams County, North Dakota, the Defendant has been sued by the injured person, Lesselyoung. Under a non-waiver agreement executed by Gibbons, counsel for the Plaintiff interposed an answer to Lesselyoung's complaint, denying liability. This declaratory judgment action followed.

The applicable insuring agreement of the subject policy provides that the Plaintiff insurer will

"pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:

A. bodily injury, sickness or disease, including death resulting therefrom, hereinafter called `bodily injury,' sustained by any person;

* * * * *

arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile, and the company shall defend any suit alleging such bodily injury ... and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; but the company may make such investigation and settlement of any claim or suit as it deems expedient."

The sole question presented by this action is whether or not the injury sustained by Lesselyoung arose out of the "use" of the described vehicle, as that term is used in the subject policy of insurance.

The question has been thoroughly briefed, oral argument thereon was presented in open court on December 17, 1971, and the matter is finally submitted.

Plaintiff's position is that under the facts of this case, the automobile was being "used" as a gun-rest, and that therefore the accident and resulting injuries to Lesselyoung did not "arise out of the use" of the owned automobile within the terms of the policy. Plaintiff argues that the word "use", as used in the policy of insurance, contemplates a use of the automobile in its inherent nature as a vehicle, and cites substantial authority in support of such reasoning.

On the other hand, the Defendant and Intervening Defendant cite as their principal authority the 1960 case of Fidelity and Casualty Company of New York v. Lott et al., 273 F.2d 500 (5 Cir.), in which the factual situation was strikingly similar to that presented here. In Lott the Court simply held that "in the ordinary sense of the words Miller's death was `caused by accident * * * arising out of the * * * use of the automobile'". (p. 502) The Court thereafter went on to say: "But, appellant says, the automobile was being `used' as a gun-rest and not as a vehicle. 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." Then, relying on Texas authority, the Court of Appeals for the Fifth Circuit concluded that "the words `incident to and arising out of the use of a motor vehicle' are not restricted to occasions when the insured party was hurt either because of the running of the automobile or because of its standing after normal use."

From the stipulated facts and the reasonable inferences to be drawn therefrom, the applicable case law and rules of construction, and the arguments of counsel, we are satisfied that the controlling law concerning the construction of the subject policy is the law of the State of North Dakota.

Apparently the Supreme Court of North Dakota has not had occasion to pass upon the precise question involved in this case, for none has been cited to us and our independent research discloses none. However, there is some indication of what direction that Court would take in the 1961 case of Kadrmas v. Mudna, N.D., 107 N.W.2d 346. In Kadrmas the plaintiff was injured in a single car accident involving an automobile apparently owned by his mother, and covered by a policy of insurance in which she was the named insured. Plaintiff had been given permission to use the automobile, and prior to the accident he had been driving. However, some time prior to the accident, plaintiff advised his companions that he was going to sleep, and entered the back seat of the vehicle for that purpose. The next thing he knew, he was regaining consciousness while lying in a ditch following the accident. The evidence disclosed that Mudna, the defendant, was driving the vehicle at the time of the accident, and he claimed to be an insured within the terms of the extended coverage clause. Under the facts in that case, the Supreme Court held that Mudna could be an insured within the terms of the policy only if the plaintiff, Kadrmas, could be said to be "using" the vehicle while Mudna was driving it. That Court then went on to hold that Kadrmas was not using the insured vehicle, within the meaning of the terms of the policy, at the time of the accident. At page 349, the Court states:

"He (Kadrmas) was asleep in the back seat which he had entered not for the purpose of going or being taken anywhere, but for the purpose of sleeping until his companions were ready to leave, at which time they were to wake him up. The inference was that he would do the driving as he had been doing throughout the evening. It cannot be said that Clarence Kadrmas was using the car merely because he was in it when the accident happened. He entered the car for repose and not for transportation. The use contemplated by the policy is use as a vehicle, not a bed. (Emphasis supplied.)

In a trial court memorandum opinion issued November 3, 1971, Judge Redetzke, a Judge of the District Court, First Judicial District, State of North Dakota, held on facts very similar to those present in the instant case:

"It is the conclusion of the court from the decided cases that the causal relation or connection between the accident or injury and the ownership, maintenance or use of a vehicle in order for the accident or injury to come within the meaning of the phrase `arising or resulting out of the ownership, maintenance, or use of a vehicle' must be one which arises reasonably out of

...