Smith v. Stover, COA06-208.

• Decision Date: 17 October 2006
• Docket Number: No. COA06-208.,COA06-208.
• Citation: 635 S.E.2d 501
• Court: North Carolina Court of Appeals
• Parties: Dustin H. SMITH, Plaintiff, v. Alan Wayne STOVER, Defendant, and NCACC Risk Management Agency Liability and Property Self-Insurance Pool, Unnamed defendant, Appellant.

635 S.E.2d 501

Dustin H. SMITH, Plaintiff, v. Alan Wayne STOVER, Defendant, and NCACC Risk Management Agency Liability and Property Self-Insurance Pool, Unnamed defendant, Appellant.

No. COA06-208.

Court of Appeals of North Carolina.

October 17, 2006.

Appeal by unnamed defendant from an order determining insurance coverage entered 19 July 2005 by Judge James U. Downs in Cherokee County Superior Court. Heard in the Court of Appeals 14 September 2006.

Ball, Barden & Bell, P. A., by Thomas R. Bell, Asheville, for plaintiff-appellee.

Teague, Campbell, Dennis & Gorham, L.L.P., by William A. Bulfer, Raleigh, for unnamed defendant-appellant.

STEELMAN, Judge.

Unnamed defendant, NCACC Risk Management Agency Liability and Property Self Insurance Pool, ("insurer") appeals from an order of the trial court finding that plaintiff's injuries were covered under the provisions of an uninsured motorist coverage portion of a policy of insurance issued to Cherokee County. For the reasons discussed herein, we reverse the order of the trial court.

Dustin H. Smith ("plaintiff") was employed as a deputy sheriff for Cherokee County, was on duty, and was operating a motor vehicle owned by the County on 6 April 2001. He observed Alan Stover ("defendant") run a red light. Plaintiff pursued defendant until defendant's vehicle became stuck in a creek. Plaintiff stopped his vehicle. Defendant fired with a shotgun at plaintiff from his car, breaking the windshield but not injuring him. Plaintiff then exited his vehicle. Defendant exited his vehicle and ran into nearby woods. Defendant fired several times at plaintiff from the woods, striking and injuring plaintiff. Defendant pled guilty to criminal charges of attempted murder, three counts of assault on a law enforcement officer with a firearm, two counts of assault with a deadly weapon with intent to kill, assault with a deadly weapon with intent to kill inflicting serious injury, discharge of a weapon into occupied property, and assault on a law enforcement officer inflicting serious injury.

Plaintiff filed this action against defendant seeking monetary damages for personal injury and punitive damages. Insurer had issued a policy of insurance to Cherokee County, plaintiff's employer, which contained uninsured motorist coverage in the amount of $100,000.00. This policy provided insurance on the vehicle operated by plaintiff on the date of the shootings. The vehicle operated by defendant was uninsured. Insurer filed answer to plaintiff's complaint as an unnamed defendant. Upon the failure of defendant to appear or file responsive pleadings, judgment was entered against defendant in the amount of $250,000.00 for compensatory damages and $250,000.00 for punitive damages. By consent of the parties, the trial court heard and decided the question of whether the plaintiff's injuries were covered by insurer's policy, sitting without a jury. Judge Downs held that plaintiff's injuries were covered by the policy. From this order, insurer appeals.

In its first argument, insurer contends that the trial court erred in holding that the uninsured motorist coverage was applicable to plaintiff's injuries, since plaintiff's injuries did not arise from the "ownership, maintenance, or use" of a motor vehicle. We agree.

This is a claim under the uninsured motorist coverage of Cherokee County's insurance policy. The relevant portion of this policy reads as follows:

The Fund will pay all sums the Covered Person is legally entitled to recover as damages from the owner or driver of an Uninsured Motor Vehicle. The damages must result from Bodily Injury sustained by the Participant or Property Damage, caused by an Accident. The owner's or driver's liability for these damages must result from the ownership, maintenance, or use of the Uninsured Motor Vehicle.

Our review of the trial court's construction of the provisions of an insurance policy is de novo. Bruton v. N.C. Farm Bureau Mut. Ins. Co., 127 N.C.App. 496, 498, 490 S.E.2d 600, 601-02 (1997).

The policy is clear that plaintiff's damages "must result from the ownership, maintenance, or use of the Uninsured Motor Vehicle." This provision does not refer to the use of the Cherokee County Sheriff's Department vehicle by plaintiff. Rather, it refers to defendant's use of the uninsured motor vehicle.

In ruling in favor of plaintiff, the trial court relied heavily upon the case of Nationwide Mutual Ins. Co. v. Knight, 34 N.C.App. 96, 237 S.E.2d 341 (1977). In Knight, a group of people, purportedly acting on behalf of the mother of a child, were attempting to take the child away from the father. A high-speed chase ensued, during which the pursuing car rammed the pursued car, causing personal injuries to individuals in the pursued car. In addition, the pursuers shot at the other car, resulting in serious injury to the child. Knight, 34 N.C.App. at 97, 237 S.E.2d at 343-44. The issues presented to this Court were whether the injuries resulting from the ramming and the shooting were covered under the automobile liability insurance policy of the pursuing vehicle. Id. at 98-100, 237 S.E.2d at 343-44.

This Court held that the injuries resulting from the ramming were covered under the insurance policy, but that the injuries resulting from the shooting were not covered. Id. In finding coverage for the injuries resulting from the ramming, this court quoted from the case of Nationwide Mut. Insurance Co. v. Roberts, 261 N.C. 285, 289, 134 S.E.2d 654, 658 (1964), a case where the defendant deliberately drove a vehicle across a sidewalk and struck a pedestrian: "[F]rom 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." Knight, 34 N.C.App. at 98, 237 S.E.2d at 343.

In the instant case, the trial court relied upon this language to conclude that plaintiff's injuries were incurred as a result of the ownership, maintenance, or use of an uninsured motor vehicle. This conclusion was in error. In Knight, this Court went on to hold that the child's injuries as a result of the shooting were not covered by the insurance policy:

[T]here is no causal relationship between the ownership, maintenance and use of the insured's moving vehicle, and the injury sustained by the minor defendant as a result of gunshots fired from that moving vehicle. Defendant's argument that ...