State Farm Mut. Auto. Ins. Co. v. Davis, No. 89-56044

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore D.W. NELSON and REINHARDT; SINGLETON
Citation937 F.2d 1415
PartiesSTATE FARM MUTUAL AUTOMOBILE INSURANCE CO., a corporation, Plaintiff-Appellee, v. Walter Allen DAVIS, and Brian J. Painter, Defendants, and Charles R. Keukelaar, Shellie A. Keukelaar, Charles Rubin Keukelaar, a minor, by Shellie A. Keukelaar, his Guardian ad litem, Defendants-Appellants.
Decision Date01 July 1991
Docket NumberNo. 89-56044

Page 1415

937 F.2d 1415
STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., a corporation,
Plaintiff-Appellee,
v.
Walter Allen DAVIS, and Brian J. Painter, Defendants,
and
Charles R. Keukelaar, Shellie A. Keukelaar, Charles Rubin
Keukelaar, a minor, by Shellie A. Keukelaar, his
Guardian ad litem, Defendants-Appellants.
No. 89-56044.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Nov. 7, 1990.
Decided July 1, 1991.

Page 1416

William B. Hanley, McCormick, Kidman & Behrens, Costa Mesa, Cal., for defendants-appellants.

Richard C. Turner, Mary K. Lenahan, and Robert D. Brugge, Spray, Gould & Bowers, Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before D.W. NELSON and REINHARDT, Circuit Judges, and SINGLETON, * District Judge.

SINGLETON, District Judge:

State Farm Mutual Automobile Insurance Co. ("State Farm") brought this action in federal district court seeking a declaratory judgment. State Farm alleged that a policy of automobile insurance it had issued to Walter Allen Davis ("Davis") did not cover an incident where Davis shot and injured Charles Keukelaar ("Keukelaar"), the driver of another vehicle. Davis was a passenger in his own vehicle, a 1984 GMC van, when the incident occurred. The district court had jurisdiction based on diversity of citizenship, 28 U.S.C. Sec. 1332(a)(1) (1988). We have jurisdiction under 28 U.S.C. Sec. 1291 (1988).

In this case we are asked to determine whether a highway shooting "result[ed] from the ownership, maintenance or use" of the assailant's automobile. On the specific facts of this case, we conclude that the

Page 1417

shooting did result from the use of the vehicle and therefore reverse a summary judgment absolving the automobile insurance carrier from liability to the Keukelaars.
BACKGROUND

The facts are not in dispute. Davis, a United States Marine, purchased a 1984 GMC van while residing in the State of Tennessee. State Farm issued Davis a policy of automobile insurance, covering the vehicle. Thereafter, Davis was transferred to the United States Marine Corps Air Station, Tustin, California. He retained the vehicle with its Tennessee license and registration, as well as his Tennessee driver's license.

Davis was scheduled for sea duty and wished to store some personal property including several handguns at his mother's home in San Jose, California. On November 23, 1984, Davis and two fellow Marines, Brian Painter ("Painter") and David Roberts ("Roberts"), were transporting this property in Davis's GMC van at the time of the shooting. Painter was driving and Davis was riding in the front passenger seat. Roberts occupied the rear seat. The three were proceeding north on Interstate Highway 5 when they were passed by a Corvette driven by Keukelaar. Shellie Keukelaar ("Shellie"), who was pregnant, was riding as a passenger in the Corvette. Davis told Painter to overtake and pass the Corvette. As the van approached the rear of the Corvette, Davis fired a .44 caliber revolver out his window striking and shattering the rear window of the Corvette. The bullet continued into the passenger compartment and struck Keukelaar in the back of the head rendering him unconscious. Shellie was able to bring the Corvette to a stop. Davis and his friends continued driving. The Keukelaars eventually contacted state authorities. Sometime thereafter, Davis and his friends were apprehended. Davis was subsequently convicted of criminal assault in state court.

The Keukelaars sued Davis and Painter in state court and State Farm brought this action in federal district court seeking a declaration that it did not provide coverage to Davis and Painter for the Keukelaars' injuries. State Farm sought summary judgment on the ground that the injuries were not "caused by an accident 1 resulting from the ownership, maintenance or use of [Davis's] car...." The district court agreed and entered judgment in State Farm's favor. This appeal followed.

DISCUSSION

I. Standard of Review

"A grant of summary judgment is reviewed de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989); cert. denied, --- U.S. ----, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990). The appellate court must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the law." Hydro Systems, Inc. v. Continental Ins. Co., 929 F.2d 472, 473 (9th Cir.1991). We also review issues of insurance contract interpretation de novo. See

Page 1418

American States Ins. Co. v. Borbor, 826 F.2d 888, 890 (9th Cir.1987).

II. Applicable Law

At the time of the shooting, Davis had a current State Farm insurance policy issued and delivered to Davis in Tennessee. The shooting occurred in California where the Keukelaars reside. In the trial court and in their briefs in this court, both parties proceeded on the assumption that California law governed the interpretation of the insurance policy. During oral argument State Farm argued for the first time that the law of Tennessee governs the interpretation of the provisions of its policy. 2 To resolve this question we look to the choice of law rules of California, the forum state. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941); Federal Insurance Co. v. Scarsella Bros., Inc., 931 F.2d 599, 602 (9th Cir.1991).

California Civil Code Sec. 1646 (1985) provides:

Law of Place. A contract is to be interpreted according to the law and usage of the place where it is to be performed; or, if it does not indicate a place of performance, according to the law and usage of the place where it is made.

There is no need to choose between the laws of California and Tennessee if they are identical. Hurtado, 11 Cal.3d at 580, 114 Cal.Rptr. at 109, 522 P.2d at 669; International Serv. Ins. Co. v. Gonzales, 194 Cal.App.3d 110, 116, 239 Cal.Rptr. 341, 344 (1987). We determine de novo the applicable law of California and Tennessee in this diversity case. Salve Regina College v. Russell, --- U.S. ----, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991); In Re Complaint of McLinn, 739 F.2d 1395 (9th Cir.1984) (en banc). In making this determination we look to all available data. See West v. American Tel. & Tel. Co., 311 U.S. 223, 237, 61 S.Ct. 179, 183, 85 L.Ed. 139 (1940). In the absence of determinative decisions of each state's highest court we look to intermediate court decisions. State Farm Fire and Casualty Co. v. Abraio, 874 F.2d 619, 621 (9th Cir.1989). We also look to well-reasoned decisions from other jurisdictions. Takahashi v. Loomis Armored Car Serv., 625 F.2d 314, 316 (9th Cir.1980). Ultimately we must use our own best judgment in predicting how the respective state supreme courts would interpret this insurance contract. If they would reach inconsistent decisions then we must apply California's choice of law rules to resolve the conflict.

We have not been cited to any Tennessee or California court decisions that are directly on point. Nevertheless, we have reviewed analogous cases and are satisfied that the laws of both states are the same. Compare State Farm Mutual Automobile Ins. Co. v. Partridge, 10 Cal.3d 94, 109 Cal.Rptr. 811, 514 P.2d 123 (1973) (handgun accidentally discharged wounding a passenger while vehicle was being driven off-road; accident held to arise out of the use of the vehicle and therefore was within automobile insurance coverage) with Travelers Ins. Co. v. Aetna Casualty & Sur. Co., 491 S.W.2d 363 (Tenn.1973) (shotgun accidentally discharged while being loaded into vehicle; accident held to arise out of loading and use of vehicle and therefore was within automobile coverage).

State Farm does not cite any Tennessee authority for the proposition that Tennessee

Page 1419

interprets insurance contracts differently than California. However, it does argue that all of the California cases discussing fact situations similar to the one in this case deal with policy provisions which cover bodily injury caused by an occurrence "arising out of the use" of a vehicle while the policy in this case covers bodily injury caused by an accident "resulting from the use" of a vehicle.

In its brief State Farm argued that the phrase "arising out of the use" of an insured vehicle provides broader coverage than the phrase "resulting from the use" of an insured vehicle. It cites no authority for this proposition. In response, the Keukelaars argued in their reply brief that a California statute, California Insurance Code Sec. 11580.1(a) (1988), requires automobile policies issued in California to cover liability "arising out of the use" of an insured vehicle. State Farm disputed at oral argument the applicability of this statute to an insurance policy issued and delivered in Tennessee. See Gonzales, 194 Cal.App.3d 110, 239 Cal.Rptr. 341; Wheeling v. Financial Indemn. Co., 201 Cal.App.2d 36, 19 Cal.Rptr. 879 (1962).

We find it unnecessary to resolve this last minute dispute between the parties regarding the applicability of Sec. 11580.1(a). We are satisfied that both California and Tennessee require a slight causal connection between an insured vehicle and a shooting injury before the injury may be held to "arise out of the use" of the insured vehicle. Travelers, 491 S.W.2d at 366; Partridge, 10 Cal.3d at 100, 109 Cal.Rptr. at 815, 514 P.2d at 127. This slight causal connection in our view is also what reasonable men and women would understand the phrase "resulting from the use" of an insured vehicle to mean. See AIU Ins. Co. v. Superior Court, 51 Cal.3d 807, 818, 274 Cal.Rptr. 820, 831, 799 P.2d 1253, 1264 (1990). We are also satisfied that it is the meaning most consistent with the language and intent of the contracting parties and comports with the usual, natural and ordinary meaning of the terms in question. See...

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  • Taylor v. Phoenix Ins. Co., No. 92-115
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    • 16 Julio 1993
    ...such injuries become increasingly frequent, some courts are willing to find insurance coverage. State Farm Mut. Auto. Ins. Co. v. Davis, 937 F.2d 1415 (9th Cir.1991); Ruiz v. Farmers Ins. Co. of Arizona, 847 P.2d 111 (Ariz.App.1992); Cung La v. State Farm Auto. Ins. Co., 830 P.2d 1007 (Colo......
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51 cases
  • Pension Trust Fund v. Federal Ins. Co., No. 00-17055.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 1 Octubre 2002
    ...earlier refused to defend PTF. STANDARD OF REVIEW We review a grant of summary judgment de novo. State Farm Mut. Auto. Ins. Co. v. Davis, 937 F.2d 1415, 1417 (9th Cir.1991). "[V]iewing the evidence in the light most favorable to the nonmoving party," we must determine "whether there are any......
  • Imperium Ins. Co. v. Unigard Ins. Co., Case No. 1:13–cv–01707–JLT.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • 28 Abril 2014
    ...Farm Mutual Auto. Ins. Co. v. Grisham, 122 Cal.App.4th 563, 566, 18 Cal.Rptr.3d 809 (2004) ); State Farm Mutual Auto. Ins. Co. v. Davis, 937 F.2d 1415, 1419 (9th Cir.1991). The phrase “arising out of” is broad, and is ordinarily understood to mean “incident to, or having connection with.” H......
  • Imperium Ins. Co. v. Unigard Ins. Co., Case No. 1:13–cv–01707–JLT.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • 28 Abril 2014
    ...Farm Mutual Auto. Ins. Co. v. Grisham, 122 Cal.App.4th 563, 566, 18 Cal.Rptr.3d 809 (2004)); State Farm Mutual Auto. Ins. Co. v. Davis, 937 F.2d 1415, 1419 (9th Cir.1991). The phrase “arising out of” is broad, and is ordinarily understood to mean “incident to, or having connection with.” Ha......
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    • United States
    • Court of Appeal of Florida (US)
    • 16 Julio 1993
    ...such injuries become increasingly frequent, some courts are willing to find insurance coverage. State Farm Mut. Auto. Ins. Co. v. Davis, 937 F.2d 1415 (9th Cir.1991); Ruiz v. Farmers Ins. Co. of Arizona, 847 P.2d 111 (Ariz.App.1992); Cung La v. State Farm Auto. Ins. Co., 830 P.2d 1007 (Colo......
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