Taylor v. Phoenix Ins. Co., 92-115

• Citation: 622 So.2d 506
• Decision Date: 16 July 1993
• Docket Number: No. 92-115,92-115
• Parties: 18 Fla. L. Weekly D1617 Kristine M. TAYLOR and Johnny R. Taylor, her husband, Appellants/Cross Appellees, v. PHOENIX INSURANCE COMPANY, Appellee/Cross Appellant.
• Court: Court of Appeal of Florida (US)

Page 506

622 So.2d 506

18 Fla. L. Weekly D1617

Kristine M. TAYLOR and Johnny R. Taylor, her husband, Appellants/Cross Appellees, v. PHOENIX INSURANCE COMPANY, Appellee/Cross Appellant.

No. 92-115.

District Court of Appeal of Florida,

Fifth District.

July 16, 1993.

Rehearing Denied Aug. 27, 1993.

David D. Guiley of Maher, Gibson and Guiley, P.A., Orlando, for appellants/cross appellees.

Jeffrey M. Fleming of Rogers, Dowling, Fleming & Coleman, P.A., Orlando, for appellee/cross appellant.

GRIFFIN, Judge.

This is the appeal and cross-appeal of a summary final judgment entered in favor of appellee, Phoenix Insurance Company ("Phoenix"). The issue on appeal is whether the trial court erred in determining that the Uninsured Motorist ("UM") provision of an automobile liability policy did not cover injuries suffered by appellants because the vehicle was not an "uninsured motor vehicle" within the terms of the "hit and run" provision of the policy. The issue on cross-appeal is whether the trial court erred in determining the appellants' injury arose out of the ownership, maintenance and use of the tort-feasor's vehicle.

On April 28, 1988, appellant, Johnny R. Taylor, was driving the family car, which was insured by Phoenix, traveling north on I-95. Appellant, Kristine Taylor, and the appellants' four children were passengers. A vehicle occupied by two men, later identified only as "Willie" and "Jet", passed the appellants while pursuing another automobile driven by Ms. Honey Rose Hurley. After going through a toll booth, the passenger in the pursuit vehicle leaned out of the car window and started firing an automatic weapon at the Hurley vehicle. One of the bullets from the automatic weapon went through the windshield of the Taylor vehicle, striking Mrs. Taylor in the head, severely wounding her. Neither of the two occupants of the vehicle from which the bullet was fired was ever apprehended, nor was the vehicle from which the shots came ever identified. ¹

The lower court ruled on summary judgment motion that there was "sufficient causal connection between the use of the tort-feasor's car and the injury of the insured under the facts of this case to establish liability and coverage if, in fact, an uninsured or underinsured vehicle were being used by the tort-feasor"; however, because the car was unidentifiable, the insured could not prove the vehicle was uninsured and the "hit and run" provision of the policy excluded coverage under the facts of the case. Based on these rulings, the trial court entered summary final judgment in favor of Phoenix. Although we disagree with the lower court's reasoning, we affirm.

Initially, we conclude the "hit and run" policy provision does not preclude recovery under the policy. The policy language relied upon by the lower court provided:

Uninsured motor vehicle means a highway vehicle or trailer of any type.

* * * * * *

4. which is a hit-and-run highway vehicle, if neither the driver nor the owner can be identified, which causes bodily injury to an insured by physical contact with the insured or a vehicle occupied by the insured.

In Brown v. Progressive Mutual Insurance Co., 249 So.2d 429 (Fla.1971), the supreme court refused to apply virtually identical language to the facts of that case. The court explained that the only reason for the physical contact requirement in the UM provisions of an automobile policy is to prove an accident involved a phantom vehicle. If an injured party can show, however, that the incident involving a phantom vehicle did occur, he is entitled to recover even absent physical contact. Id. at 430. In the instant case, there is no dispute that Mrs. Taylor was injured by gunfire from a phantom vehicle. We see no reason why the rationale of Brown is not controlling here and appellee has offered none, other than to say that Brown has never before been applied to a projectile case.

The harder question is whether there can be UM coverage where a claimant is injured by a projectile emanating from the uninsured motor vehicle. Until recently, very few courts have broadly interpreted the "arising out of the ownership, maintenance or use" policy language to find uninsured motorist, liability or personal injury protection coverage for injuries caused by projectiles thrown or shot from vehicles. See generally Larry D. Scheafer, Annotation, Automobile Liability Insurance: What Are Accidents or Injuries "Arising Out of Ownership, Maintenance, Or Use" Of Insured Vehicle, 15 A.L.R.4th 10 Sec. 9 at 42-48 (1982); Fowler v. State Farm Mut. Auto. Ins. Co., 548 So.2d 830 (Fla. 1st DCA1989); Florida Farm Bureau Ins. Co. v. Shaffer, 391 So.2d 216 (Fla. 4th DCA1980), rev. denied, 402 So.2d 613 (Fla.1981).

As is often true with causation questions, however, courts have struggled to define precisely what incidents "arise out of" the ownership, maintenance or use of a motor vehicle. One court has explained that there is coverage under automobile liability or uninsured motorist insurance if the incident causing injury is in any way connected with the normal or expected uses, or incidents of use, of an automobile. ² Farm Bureau Mut. Ins. Co. v. Evans, 7 Kan.App.2d 60, 637 P.2d 491 (1981). Thus, an accident caused by the emptying of the contents of an automobile's ashtray out of the car window might be covered by automobile insurance, whereas the throwing of an explosive device from a car or the shooting of a gun from a car would not. Id., 637 P.2d at 494; Hamidian v. State Farm Fire & Casualty Co., 251 Kan. 254, 833 P.2d 1007 (1992). See also Wirth v. Maryland Casualty Co., 368 F.Supp. 789 (W.D.Ky.1973) (no liability coverage for injury caused by throwing lit firecracker from moving vehicle).

In Kessler v. Amica Mutual Insurance Co., 573 So.2d 476, 478 (La.1991), the occupant of one moving vehicle shot into another moving vehicle, wounding the victim. The Louisiana Supreme Court found the injuries did not arise out of the use of a motor vehicle, pointing out that there would have been no injury to the victim "but for" the conduct of the assailant in shooting a gun at him. The court explained that the shooting was the cause-in-fact of the injury and the shooting of a gun is wholly unrelated to the operation or use of a motor vehicle. The court considered it a matter of common sense that a bullet wound is the result of the breach of the duty not to shoot people, not the incidental action of operating a motor vehicle. Id. at 479.

In Nationwide Mutual Insurance Co. v. Brown, 779 F.2d 984 (4th Cir.1985), the insured vehicle was used to pursue the victim's vehicle, to force the victim's vehicle from the road, and to trap the victim, who was then shot by the assailant. The Fourth Circuit Court of Appeals held there was no insurance coverage because an assault with a deadly weapon upon a driver or passenger of another vehicle is not the type of incident foreseeably identifiable with the normal use of a vehicle.

We have found a spate of quite recent "shooting" cases, suggesting that, as 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.1992); Wausau Underwriters Ins. Co. v. Howser, 422 S.E.2d 106 (S.C.1992). Perhaps the frequency of these occurrences is deemed to equate with the "normal or expected" use of an automobile. Other courts have not been so persuaded, however. State Farm Mutual Auto. Ins. Co. v. Spotten, 610 N.E.2d 299 (Ind.App.1993); Ulrich v. United Services Automobile Ass'n, 839 P.2d 942 (Wyo.1992).

The dissent relies on the reasoning of such cases as Ganiron v. Hawaii Insurance Guaranty Ass'n, 69 Haw. 432, 744 P.2d 1210 (1987). The problem with cases like Ganiron is that the court consciously and expressly refuses to recognize any distinction between an injury that occurs when two cars are traveling on the highway and one runs into the other, versus an injury that occurs when two cars are traveling down the highway and the occupant of one vehicle shoots a gun at the occupant of another vehicle. Id., 744 P.2d at 1212. ³ For us, this distinction is critical. Presumably, under the reasoning in Ganiron, if two cars were traveling down the highway, each full of passengers, and the occupant of one were to hurl insults at an occupant of the other vehicle, such defamation would "arise out of" the "operation" or "use" of a motor vehicle.

We are not persuaded by the reasoning of these cases and are unable to find that coverage exists in the present case. As expressed in the Phoenix policy, coverage arises out of the "ownership, maintenance or use of the uninsured motor vehicle." We cannot fairly conclude that the facts of this case fall within that requirement. A bullet wound does not arise out of the use of a motor vehicle. Shooting a gun is an act unrelated to use of a motor vehicle; it in no way depends on or involves a motor vehicle. See Nationwide Mut. Ins. Co. v. Knight, 34 N.C.App. 96, 237 S.E.2d 341, rev. denied, 293 N.C. 589, 239 S.E.2d 263 (1977). The fact that the location of the shooter is a motor vehicle does not mean the shooting arises out of the use of the vehicle. If the uninsured vehicle causes the injury, there is coverage; if the shooting causes the injury, there is no coverage. There is no causal relationship between the ownership, maintenance and use of an uninsured motor vehicle and injuries sustained from the gunshots fired from a motor vehicle. Shaffer at 218; Wausau Underwriters Ins. Co. v. Howser, 727 F.Supp. 999 (D.S.C.1990); cf. Tuerk v. Allstate Ins. Co., 469 So.2d 815 (Fla. 3d DCA 1985), rev. denied, 482 So.2d 347 (Fla.1986). We cannot ascribe to the notion expressed by one Arizona court that "arising out of the ... use" is equivalent to "while using." Ruiz at 113.

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