Nationwide Mut. Ins. Co. v. Knight

• Decision Date: 21 September 1977
• Docket Number: No. 7621SC994,7621SC994
• Citation: 34 N.C.App. 96,237 S.E.2d 341
• Court: North Carolina Court of Appeals
• Parties: NATIONWIDE MUTUAL INSURANCE COMPANY v. Rommie G. KNIGHT, Jr., by and through his guardian ad litem, Robert F. Johnson, Rommie G. Knight, Sr., Calvin Lee Love, Donna Burton Love, Gerald Glenn Burton, and Delores Burton Knight.

Page 341

237 S.E.2d 341

34 N.C.App. 96

NATIONWIDE MUTUAL INSURANCE COMPANY v. Rommie G. KNIGHT, Jr., by and through his guardian ad litem, Robert F. Johnson, Rommie G. Knight, Sr., Calvin

Lee Love, Donna Burton Love, Gerald

Glenn Burton, and Delores Burton Knight.

No. 7621SC994.

Court of Appeals of North Carolina.

Sept. 21, 1977.

J. Robert Elster and W. Thompson Comerford, Jr., Winston-Salem, for plaintiff-appellee.

H. Glenn Pettyjohn and Theodore M. Molitoris, Winston-Salem, for defendants-appellants.

ARNOLD, Judge.

Damages are sought by defendants for property damage to their vehicle which resulted from the alleged intentional ramming by the insured vehicle. Failure of the trial court to make findings of fact with respect to plaintiff's obligation to defend the claim for property damage caused by the intentional ramming of defendant's car by plaintiff's insured was error.

An automobile insurer in North Carolina is liable, within the maximum coverage required by the Financial Responsibility Act, for property damage caused by an insured who intentionally drives an automobile into plaintiff's property. In Insurance Company v. Roberts, 261 N.C. 285, 289, 134 S.E.2d 654, 658 (1964), a case where defendant deliberately drove an automobile across a sidewalk and into the victim, our Supreme Court said:

"From the standpoint of the aggressor, an injury intentionally inflicted upon another is certainly not an accident. However, from the point of view of the victim of an unexpected and unprovoked assault with an automobile, his damages are just as accidental as if he had been negligently struck while crossing the street."

" '(I)t is apparently the more widely accepted view that an assault constitutes an "accident", and that injuries therefrom are "accidentally sustained", within the coverage of liability insurance policies.' " (Quoting 33 A.L.R.2d 1027, 1030; and citing 29A Am.Jur., Insurance § 1342.)

Under G.S. 20-279.15(3) coverage within the Financial Responsibility Act extends to property damage as well as to personal damages occurring to the victim of an accident. Plaintiff is therefore required to compensate defendant for any property damage arising out of the intentional ramming of defendant's automobile by plaintiff's insured.

The policy of automobile liability insurance involved in this case provides that Nationwide:

"(P)ay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of:

* * *

* * *

"(B)odily 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."

Defendants contend that the gunshot from the chasing automobile which injured the minor passenger of the fleeing automobile was an accident for which plaintiff insurance company should be liable. In support of this position that the gunshot wound resulted from an accident arising out of the "ownership, maintenance and use" of an automobile, defendants cite authority from other jurisdictions.

In Fidelity and Casualty Company of New York v. Lott, 273 F.2d 500 (Fifth Cir. 1960), an accident within coverage of the policy was found where a passenger was killed when the insured driver, while attempting to shoot a deer, rested his rifle on top of the parked automobile and fired. The muzzle of the rifle did not clear the top of the car and the bullet entered through the top of the car and downward into the plaintiff.

Defendants also present this case as analogous to cases which have held the insurer liable for injuries sustained by projectiles being thrown from automobiles. In Home Indemnity Company v. Lively, 353 F.Supp. 1191 (W.D.Okl.1972), for example, it was held that a pop bottle being tossed from an automobile constituted an accident arising out of the use of an automobile. See also Wyoming Farm Bur. M. Ins. Co. v. State Farm M. Auto. Ins. Co., 467 F.2d 990 (Tenth Cir. 1972).

On the other hand, plaintiff cites Vanguard Insurance Company v. Cantrell (Cantrell v. Allstate Insurance Company ), 18 Ariz.App. 486, 503 P.2d 962 (1973), where the insured fired a gun from his automobile and struck plaintiff inside a liquor store. The Arizona Court noted that the phrase "arising out of" does import a concept of causation, and held that plaintiff's injuries did not arise out of the use of a vehicle.

In the recent case of Insurance Co. v. Walker, 33 N.C.App. 15, 234 S.E.2d 206 (1977), this Court held that where the insured had permanently mounted a gun rack to the cab of his truck, and had frequently used the truck to transport rifles on hunting trips, the transportation of guns was one of the uses to which the truck had been put so that an accidental discharge of a gun on the rack was an accident arising out of the use of the truck. The Walker case is...