Nationwide Mut. Ins. Co. v. Brown, 85-1205

Citation779 F.2d 984
Decision Date18 December 1985
Docket NumberNo. 85-1205,85-1205
PartiesNATIONWIDE MUTUAL INSURANCE COMPANY, Appellee, v. Mary Melissa BROWN, etc., et al. a minor under the age of fourteen (14) years and James E. Hunter, administrator of the Estate of Lynda S. Brown, Deceased, Appellants, and Toby A. Brown, Aaron Proctor and Anne K. Dunn, Defendants, and Insurance Company of North America, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Frank A. Barton (Oswald & Floyd, West Columbia, S.C., on brief), for appellants.

Steven W. Ouzts (Turner, Padget, Graham & Laney on brief) and James B. Lybrand, Jr. (Robert A. McKenzie, McDonald, McKenzie, Fuller, Rubin & Miller, Columbia, S.C., on brief), for appellees.

Before PHILLIPS and SNEEDEN, Circuit Judges, and BOYLE, United States District Judge for the Eastern District of North Carolina, sitting by designation.

JAMES DICKSON PHILLIPS, Circuit Judge.

This diversity case involves the potential coverage, under South Carolina law, of three automobile policies in respect of a collision and a fatal shooting. The claimants, the estate and daughter of the shooting victim, appeal the grant of summary judgment for the insurance companies. The district court found that the policies provided no coverage for the shooting on the basis that the shooting-caused injuries did not arise out of the ownership, maintenance, or use of the motor vehicle, did not arise out of garage operations, and were not accidental. After determining that the claimants had presented no evidence of injuries resulting solely from the collision, the court also concluded that there was no liability in respect of the collision.

We affirm on the issue of non-coverage as to the shooting. On the question of collision-caused injuries, however, we find genuine issues of material fact which might result in insurer liability; accordingly, we vacate and remand on this issue for further proceedings.

I

On December 15, 1982, Toby Brown, owner of Brown's Auto Service, and Aaron Proctor, a mechanic at Brown's auto shop, borrowed Anne Dunn's pickup truck in order to pick up some Christmas presents, and, in return for the favor, Proctor and Brown offered to change the tires on the truck. The following day, Proctor picked up the gifts and returned the truck to the shop. The repairs were never made. On December 17, 1982, Brown told Proctor to use the Dunn truck to meet Brown in a neighboring town to pick up a customer's car. After Proctor picked up Brown in that town, Brown explained that he wanted to locate his estranged wife, Lynda Brown. Brown told Proctor that he had a gun and would kill his wife if she refused to speak with him. Brown and Proctor eventually found Lynda Brown in her car with their child, Mary Melissa Brown. As the vehicles approached, Brown shoved Proctor and the steering wheel, causing Dunn's truck to collide with Lynda Brown's car. Following the collision, Toby Brown jumped out of the truck and shot and killed his wife while she sat in the car.

The administrator of Lynda Brown's estate and Mary Melissa Brown brought wrongful death and survival actions in South Carolina state court against Brown and Proctor. At the time of the incident, there were three liability insurance policies providing general coverage for the Dunn and Brown vehicles. Two of the policies were issued by Nationwide Mutual Insurance (Nationwide). One of these was a garage liability policy (Nationwide garage policy) issued to Toby Brown d/b/a Brown's Auto Service, and the other was a standard automobile liability policy issued to Anne Dunn (Nationwide Dunn policy) covering her truck. Insurance Company of North America (INA) issued the third policy, an automobile liability insurance policy, issued to Toby and Lynda Brown (INA Brown policy), providing uninsured, underinsured, and personal injury protection coverage.

With the state actions pending, Nationwide commenced this federal declaratory judgment action, in which INA subsequently joined, seeking a declaration of non-coverage under the three insurance policies. With issue joined, the insurance companies moved for summary judgment on the basis that the injuries for which liability was asserted by Brown did not arise out of the ownership, maintenance or use of a motor vehicle and, therefore, were not covered under the policies.

Both the Nationwide Dunn policy and the INA Brown policy require as a condition of coverage that the injuries for which coverage is claimed arise out of the ownership, maintenance or use of an automobile. 1 Both insurance companies claimed that as a matter of law, on the undisputed facts, this condition of coverage was not met. Nationwide further claimed non-coverage under its two policies on the basis that because the acts upon which liability was claimed were intentional, they were excluded from coverage by express provisions of both policies. 2 Finally, Nationwide asserted, as an additional basis for non-coverage under the Nationwide garage policy, that the acts upon which liability was claimed did not arise out of "garage operations" as required by the policy and, hence, were excluded from coverage. 3

The district court granted the motions for summary judgment on the several grounds alleged by the insurance companies. The court determined that as a matter of law the shooting related injuries did not arise out of the ownership, maintenance or use of the vehicles because no causal relation existed between the injuries and the use of the automobiles as automobiles. The court also concluded that the injuries resulted from an intentional act and that under South Carolina law the insurance companies had, and could properly have, excluded intentional acts under automobile insurance policies. Finally, the court concluded that the shooting neither resulted from garage operations nor was accidental and, thus, was not covered under the Nationwide garage policy.

Having disposed of the basic question of coverage for the shooting, the court then held additionally that the claimants had presented no evidence of injuries resulting directly from the collision itself. On this basis, therefore, the court granted summary judgment for the insurance companies as to any collision related injuries. 4

This appeal followed.

II

We deal initially with the issue of insurance coverage as to the shooting. We agree with the district court's holding and analysis in its grant of summary judgment on this question and find no coverage for the shooting related injuries under any of the three policies.

First off, the claim of liability based upon the act of shooting does not meet the threshold requirement under the Nationwide Dunn policy and the INA Brown policy that the claim arise "out of the ownership, maintenance or use" of the automobiles. The appellants premise their claim of coverage upon a unique negligence theory: Proctor's negligence in transporting in an insured vehicle a dangerous person to carry out a known threat. Proctor knew that Brown had a gun, had a propensity for violence, and had threatened to kill his wife. Proctor created the dangerous situation in which Brown was able to fulfill his threats. This use of the truck for transportation, the appellants contend, constituted a normal "use" of a motor vehicle under these policies and the negligence and resulting death are therefore covered.

The closest authority supporting such a general theory of coverage is found in several cases from other jurisdictions involving the transportation in insured vehicles of animals which, in one way or another, inflicted injuries upon persons incident to their transportation. See, e.g., Duvigneaud v. Government Employees Insurance Co., 363 So.2d 1292 (La.App.1978). 5 The great weight of authority in more closely related contexts, however, convinces us that the South Carolina courts would not apply such a negligent transportation theory to find insurance coverage here. This negligence theory and, particularly, the transportation of animal cases relied upon by appellants, gloss over the critical causal relation test. The "accident" upon which insurance coverage is claimed must bear a "causal relation or connection" with the ownership, maintenance or use of the automobile. Plaxco v. United States Fidelity and Guaranty Co., 252 S.C. 437, 166 S.E.2d 799 (1969).

Courts confronted with the general question of whether personal injuries resulting from physical assaults by insured vehicle passengers or operators "arose out of" the ownership, maintenance or use of the vehicle, have almost unanimously found no causal relation between the "use" of the vehicle and such assault-caused injuries. For instance, in Government Employees Insurance Co. v. Melton, 357 F.Supp. 416 (D.S.C.1972), aff'd, 473 F.2d 909 (4th Cir.1973), the district court, applying South Carolina law, found no "use" coverage where the claimants had been struck and injured by soft drink bottles thrown from a truck driven by the insured. Concluding that the "arising out of" language contemplates a close causal relation between "ownership, maintenance or use" and claimed injuries, the court stated: "An automobile policy cannot properly be construed to cover injuries that result from acts wholly disassociated from, independent of, or remote from the use of the vehicle." 357 F.Supp. at 418, quoting with approval, 7 Appleman Insurance Law and Practice Sec. 4316(3), at 142. See also Commercial Union Insurance Co. of New York v. Hall, 246 F.Supp. 64 (E.D.S.C.1965).

In cases dealing with the specific situation here in issue--a shooting by a passenger in or operator of an insured vehicle--the decisions have uniformly applied and found unmet a comparable causal relation requirement. Representative is Detroit Automobile Inter-Insurance Exchange v. Higginbotham, 95 Mich.App. 213, 290 N.W.2d 414 (1980), in which the Michigan court determined that injuries sustained by a wife from a shooting by her estranged husband...

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