State Farm Mut. Auto. Ins. Co. v. Powell

• Decision Date: 15 June 1984
• Docket Number: No. 812176,812176
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Shirley C. POWELL, Administratrix, etc., et al. Record
• Court: Virginia Supreme Court

Page 393

318 S.E.2d 393

227 Va. 492

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Shirley C. POWELL, Administratrix, etc., et al.

Record No. 812176.

Supreme Court of Virginia.

June 15, 1984.

Ronald D. Hodges, Harrisonburg (Wharton, Aldhizer & Weaver, Harrisonburg, on brief), for appellant.

James V. Lane, Harrisonburg (Donald D. Litten; Litten, Sipe & Miller, Harrisonburg, on brief), for appellees.

Before CARRICO, C.J., and COCHRAN, POFF, COMPTON, STEPHENSON, RUSSELL and THOMAS, JJ.

COMPTON, Justice.

This is a declaratory judgment proceeding in an insurance case. The dispute is between an automobile liability carrier and a comprehensive personal liability (homeowner's) insurer. The main question is whether a death resulting from discharge of a shotgun, resting in a gun rack affixed to a pickup truck, arose out of "use" of the vehicle under the circumstances of this case.

During the afternoon of April 6, 1980, Easter Sunday, David C. Good, age 20 and a resident of Augusta County, drove his 1979 GMC pickup truck to Gypsy Hill Park in Staunton. Good was accompanied by a female companion. The couple met three friends at the park, including Keith Powell. Good parked his truck near another truck occupied by Powell, stopping the motor but leaving the key in the ignition switch.

Shortly after purchasing the truck in October of 1979, Good had installed a gun rack in the vehicle behind the truck's single seat and beneath the rear window. He used sheet metal screws and bolts to attach the two-gun rack to the interior body of the vehicle.

On the day in question, Good was transporting his loaded, 12-gauge single-shot shotgun in the rack. Good was unaware the gun was loaded. The gun was resting in the rack pointed towards the passenger side of Good's truck. He had carried the weapon in the rack for approximately one month.

The trio from the Powell truck alighted and walked to Good's vehicle. One of the three entered Good's truck and sat on the passenger side of the seat while Good and his companion remained seated in the vehicle. Powell initially walked to the driver's side of the truck and talked with Good. After a few minutes, Powell walked to the other side of the truck where he stood adjacent to the open door on the passenger's side.

Shortly, the group heard the sound of an explosion and saw Powell fall to the ground. He had been hit in the abdomen by shot from the weapon. The shot passed through the truck body just behind the doorpost. Powell died as the result of the shotgun wound.

The witnesses agreed that no person touched the shotgun or the gun rack and that there was no unusual movement by any of the three persons inside the truck when the blast occurred. The cause of the discharge apparently is unknown.

Powell's personal representative filed suit against Good seeking recovery in damages for the decedent's wrongful death. Subsequently, the present proceeding was instituted by appellant State Farm Mutual Automobile Insurance Company against Powell's personal representative, Good, and appellee Rockingham Mutual Insurance Company.

On the day of the accident, State Farm had in force a policy of automobile liability insurance covering the truck owned by Good. According to the policy terms, State Farm agreed to pay on behalf of Good, the named insured, all sums which the insured shall become legally obligated to pay as damages because of bodily injury, including death, "arising out of the ownership, maintenance or use" of the insured vehicle. The policy provided that " 'use' of an automobile includes the loading and unloading thereof...."

At the same time, Rockingham had in effect a homeowner's policy issued to Good's father, in whose household the son resided. That policy generally provided coverage to the son, as an insured, for personal liability. Excluded from coverage of the homeowner's policy, however, was bodily injury liability "arising out of the ownership, maintenance, operation, use, loading or unloading of ... any motor vehicle owned ... by ... any insured...."

In the present proceeding, State Farm asked the court to construe its policy language to exclude coverage for the accident. The insurer asserted that the death resulted from use of the gun and not from "use" of the truck, that no relationship existed at the time of the accident between use of the weapon and use of the vehicle for transportation, and that the truck was the mere situs of the accident.

Responding, Rockingham denied it owed coverage to Good for the incident. The company moved the court to construe its policy language to exclude coverage for the incident, asserting that the damages resulted from the use of the motor vehicle within the meaning of the State Farm policy.

The trial court ruled "that the loss arose 'out of the maintenance, operation or use' of the automobile," that the loss was payable by the automobile carrier, State Farm, and that the loss was excluded from the coverage of the homeowner's policy issued by Rockingham. We awarded State Farm an appeal from the September 1981 judgment order. Although named as an appellee, Powell's personal representative did not appear on appeal.

A preliminary question arises. The trial court based the decision on the pleadings, exhibits, a stipulation of facts, and memoranda of law. During the course of a letter opinion announcing the decision, the trial judge wrote:

"The facts are stated in the stipulation of facts. In addition to those facts which are unique to this case, there is an additional factor. It bears upon the case because it is a matter coming within the common knowledge and every day experiences of the general public. In rural areas such as the one in which this accident occurred, it is not uncommon for pickup trucks to be equipped with gun racks. Guns are carried routinely in this manner and are often openly displayed in such trucks. Racks are advertised and sold in all types of retail stores, and their use is not limited to various hunting seasons."

State Farm contends that the action of the court in sua sponte taking judicial notice of the foregoing "additional factor" not included in the stipulation was erroneous. We agree.

Because the "additional" facts surfaced for the first time when the court announced its decision, State Farm had no prior opportunity to be heard either to dispute the "facts" or to object to the court's action. Moreover, the fact that persons residing in rural areas who own pickup trucks customarily equip the vehicles with gun racks, and the extent to which such racks are marketed in retail stores, are not matters that a trial judge properly may judicially notice.

Such facts, from their very nature, should be the subject of testimony and are not facts "which are universally regarded as established by common notoriety...." Black's Law Dictionary 761 (5th ed. 1979). The personal and extrajudicial knowledge of the trial judge may not be resorted to in order to supplement the record. Darnell v. Barker, 179 Va. 86, 93, 18 S.E.2d 271, 275 (1942).

In Oriental Lumber Co. v. Blades Lumber Co., 103 Va. 730, 741, 50 S.E. 270, 273 (1905), the Court said that judicial notice properly cannot be taken of the custom and usage of the trade in delivering lumber. Similarly, in Central National Insurance Co. v. Virginia Farm Bureau Mutual Insurance Co., 222 Va. 353, 356, 282 S.E.2d 4, 6 (1981), we noted in an insurance coverage dispute that a court may not take judicial notice of the characteristics of either a "trail bike" or a "Yamaha motorcycle." Here, the trial court erroneously took notice of the custom and usage as well as the characterictics of pickup trucks operated in rural areas. Consequently, as we discuss the main question on appeal, we will not consider the "additional factor" injected into the case by the trial court.

The circumstances of this case produce a coverage question of first impression in this Commonwealth. Nonetheless, there has been a great deal of litigation in other states arising out of factual situations similar to the circumstances of the instant case. Consequently, the respective parties to this appeal rely on out-of-state authority to support their positions.

State Farm argues that this accident was not one arising from, or connected with, the "use" of the truck as a motor vehicle within the contemplation of the policy language. It asserts the truck was merely the situs of the event. It says that although the insured may have been "using" the truck, in the generic sense of that term, the accident was caused by the discharge of the shotgun which had no relationship to the actual use of the truck as a vehicle, although the vehicle had been employed to transport the weapon. State Farm points out that the truck was parked, the engine was not operating, the persons present were using the vehicle solely as a convenient place to visit with one another, no one touched the gun or the gun rack, and there was no unusual movement in the vehicle. State Farm notes the weapon discharged for an unknown reason, but speculates "it appears most likely that some internal failure within the gun's mechanism occurred." ^* In sum, State Farm contends there was no causal connection between the truck's use as a motor vehicle and the death.

Responding, Rockingham structures its argument around a Missouri decision, which the trial judge in the present case found "particularly helpful in this area." In Cameron Mutual Insurance Co. v. Ward, 599 S.W.2d 13 (Mo.Ct.App.1980), the court discussed five categories of cases, determined by the underlying facts of lawsuits that had arisen nationwide in which a firearm was involved in injuries directly or indirectly related to motor vehicles.

In the first category are cases involving accidental discharge of guns inside moving or motionless vehicles while an occupant of the vehicle was handling or toying with the weapon. The Missouri court said that those cases hold, without exception, that no...