Progressive Direct Ins. Co. v. Groves

• Citation: 431 S.C. 203,847 S.E.2d 114
• Decision Date: 22 July 2020
• Docket Number: Opinion No. 5750,Appellate Case No. 2017-001946
• Court: Court of Appeals of South Carolina
• Parties: PROGRESSIVE DIRECT INSURANCE CO., and USAA General Indemnity Company, Respondents, v. Shanna GROVES, as the Personal Representative of the Estate of Lynn Harrison, Appellant.

431 S.C. 203

847 S.E.2d 114

PROGRESSIVE DIRECT INSURANCE CO., and USAA General Indemnity Company, Respondents,

v.Shanna GROVES, as the Personal Representative of the Estate of Lynn Harrison, Appellant.

Appellate Case No. 2017-001946

Opinion No. 5750

Court of Appeals of South Carolina.

Submitted April 15, 2020

Filed July 22, 2020

Rehearing Denied September 10, 2020

John Phillips Linton, Jr., of Walker Gressette Freeman & Linton, LLC, of Charleston, and Ryan Harris Sigal, of Miller, Dawson, Sigal & Ward, LLC, of North Charleston, for Appellant.

Wesley Brian Sawyer, of Murphy & Grantland, PA, of Columbia, for Respondents.

GEATHERS, J.:

In this declaratory judgment action, Shanna Groves, as personal representative of the Estate of Lynn Harrison ("the Estate"), appeals the circuit court's order granting summary judgment to Progressive Direct Insurance Co. and USAA General Indemnity Company (collectively "Respondents"). The underlying action arises out of a vehicle-to-vehicle shooting perpetrated by Jimi Carl Redman, Jr. against Lynn Harrison. Respondents brought suit against the Estate seeking a declaratory judgment that the killing was not covered by Harrison's uninsured or underinsured motorist policies obtained through Respondents. On appeal, the Estate argues the circuit court erred in concluding that 1) Redman's vehicle was not causally connected to the killing, and 2) Redman's firing of a gun was an intervening act of independent significance that broke any causal connection between his use of the vehicle and the killing. We reverse and remand.

FACTS

On April 2, 2015, Lynn Harrison was driving a 2010 GMC eastbound on East Carolina Road, which became Old Trolley Road just before it intersected Bacon's Bridge Road in Summerville. At the same time, Jimi Carl Redman, Jr. was driving a red Ford Escape eastbound on Old Trolley Road in the lane directly to Harrison's right. Harrison and Redman had not previously met and did not know each other.¹ As both vehicles approached the intersection, a witness saw Redman blowing kisses and making hand gestures toward Harrison. When Harrison and Redman reached the intersection, the light turned red and both vehicles stopped. Moments later, Redman pointed a rifle at Harrison and shot in her direction. The bullet went through the passenger window of Harrison's vehicle, striking her in the neck and killing her. Redman then drove through the red light and fled before being apprehended a few blocks away. Harrison's car rolled slowly through the intersection before coming to a stop on the median.

Redman's Ford Escape was either uninsured or underinsured at the time of the attack. Conversely, Harrison's husband had a South Carolina motorcycle insurance policy through Progressive² and a South Carolina auto insurance policy through USAA. At the time of the shooting, Harrison lived with her husband, both policies were in full force, and both policies contained uninsured and underinsured motorist coverage. The Progressive policy provided in relevant part:

If you pay the premium for this coverage, we will pay for damages that an insured person is legally entitled to recover from the owner or operator of:

1) an uninsured^[3] motor vehicle because of bodily injury:

a) sustained by an insured person;

b) caused by an accident; and c) arising out of the ownership, maintenance or use of an uninsured motor vehicle[.]

Similarly, the USAA policy provided:

We will pay for the following damages which a covered person is legally entitled to recover from the owner or operator of an uninsured^[4] motor vehicle because of an auto accident:

1) BI sustained by a covered person; and

2) injury to or destruction of the property of a covered person.

The owner's or operator's liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle.

On August 7, 2015, Progressive filed a complaint against the Estate seeking a declaratory judgment finding that the policy it issued did not provide uninsured motorist coverage⁵ for Harrison's death. On September 17, 2015, Progressive and USAA filed an amended complaint, adding USAA as a plaintiff and seeking a declaratory judgment that neither of their policies provided coverage for Harrison's death. On November 3, 2015, the Estate filed its answer to the amended complaint. On May 9, 2016, Respondents moved for summary judgment and, on January 27, 2017, the Estate filed a cross-motion for summary judgment.

On February 17, 2017, the circuit court held a hearing and heard arguments on both summary judgment motions. On August 7, 2017, the circuit court entered an order granting summary judgment in favor of Respondents and denying the Estate's summary judgment motion. In its order, the circuit court determined that Harrison's death did not arise out of Redman's ownership, maintenance, or use of a vehicle because there was no causal connection between Redman's use of the vehicle and Harrison's death. Additionally, the circuit court concluded that even if there was a causal connection between Redman's use of the vehicle and Harrison's death, Redman's act of shooting a rifle out of the vehicle was an intervening act of independent significance that broke any causal connection between the use of the vehicle and the assault. This appeal followed.

ISSUES ON APPEAL

1. Did the circuit court err in concluding that Redman's vehicle was not causally connected to the killing?

2. Did the circuit court err in concluding that Redman's firing of a gun was an intervening act of independent significance that broke any causal connection between his use of the vehicle and the killing?

STANDARD OF REVIEW

"In reviewing a motion for summary judgment, the appellate court applies the same standard of review as the [circuit] court under Rule 56(c), SCRCP." Cowburn v. Leventis , 366 S.C. 20, 30, 619 S.E.2d 437, 443 (Ct. App. 2005). "Pursuant to Rule 56(c), SCRCP, summary judgment may be affirmed if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law." Id. "On appeal from summary judgment, the reviewing court must consider the facts and inferences in the light most favorable to the nonmoving party." Id. (quoting Cantrell v. Green , 302 S.C. 557, 559, 397 S.E.2d 777, 778 (Ct. App. 1990) ). In other words, appellate courts must "liberally construe the record in favor of the nonmoving party and give the nonmoving party the benefit of all favorable inferences that might reasonably be drawn therefrom." Estes v. Roper Temp. Servs., Inc. , 304 S.C. 120, 121, 403 S.E.2d 157, 158 (Ct. App. 1991).

LAW/ANALYSIS

The Estate argues the circuit court erred in concluding that Harrison's death did not arise out of Redman's ownership, maintenance, or use of his vehicle. Respondents argue the circuit court's conclusion is proper because 1) there was no causal connection between Redman's vehicle and the assault; and 2) Redman's firing of a gun was an intervening act of independent significance that broke any causal connection between his use of the vehicle and the assault. We agree with the Estate.

Pursuant to South Carolina law, no automobile insurance policy may be issued in this state unless it includes uninsured motorist coverage. Nationwide Mut. Ins. Co. v. Erwood , 373 S.C. 88, 91, 644 S.E.2d 62, 63 (2007) ; see also S.C. Code Ann. § 38-77-150(A) (2015) (requiring that any insurance policy issued in South Carolina include uninsured motorist coverage). Accordingly, "[a]n insured is legally entitled to recover damages arising out of the ‘ownership, maintenance, or use’ of an uninsured vehicle." State Farm Fire & Cas. Co. v. Aytes , 332 S.C. 30, 33, 503 S.E.2d 744, 745 (1998) (quoting S.C. Code Ann. § 38-77-140 (1989) ). In Aytes , our supreme court laid out a three-part test for determining whether an injury arises out of the ownership, maintenance, or use of an uninsured vehicle. Id. To satisfy the test, a party must establish the following elements:

1) There exists a causal connection between the vehicle and the injury; and

2) No act of independent significance breaks the causal link; and

3) The vehicle is being used for transportation at the time of the assault.

State Farm Mut. Auto. Ins. Co. v. Bookert , 337 S.C. 291, 293, 523 S.E.2d 181, 182 (1999) (citing Aytes , 332 S.C. at 33, 503 S.E.2d at 745 ).

Here, it is undisputed that both Harrison and Redman's vehicles were being used for transportation at the time of the shooting. Therefore, whether Harrison's killing falls within the uninsured motorist coverage of Respondents' policies hinges on the remaining two elements. We will address each element in turn.

I. Causal connection

The Estate argues the circuit court erred in concluding that there was no causal connection between Redman's vehicle and the killing because 1) the vehicle was an active accessory to the shooting; 2) the vehicle was more than the mere situs of the fatal injury; and 3) Harrison's death was foreseeably identifiable with the normal use of a vehicle. Respondents argue the circuit court properly determined that no causal connection existed because 1) Redman's vehicle was not an active accessory to the shooting; 2) Redman's vehicle was merely the site from which he fired the gun; and 3) gunshot injuries are not foreseeably identifiable with the normal use of a vehicle. We agree with the Estate.

Our courts have indicated that a causal connection means:

a) the vehicle was an "active accessory" to the assault; and

b) something less than proximate cause but more than mere site of the injury; and

c) that the "injury must be foreseeably identifiable with the normal use of the automobile."

Bookert , 337 S.C. at 293, 523 S.E.2d at 182.

A) Active accessory to the assault

The Estate argues the circuit court erred in concluding that Redman's vehicle was not an active accessory to the assault because, but for the vehicle, Redman would not have been in a position to shoot Harrison. The Estate further contends that Redman would not have been...