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

• Decision Date: 01 May 1991
• Docket Number: No. 90-0108,90-0108
• Parties: Linda THOMPSON, Plaintiff-Respondent, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, An Illinois Corporation, Defendant-Appellant. d
• Court: Wisconsin Supreme Court

Page 432

468 N.W.2d 432

161 Wis.2d 450

Linda THOMPSON, Plaintiff-Respondent, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, An Illinois

Corporation, Defendant-Appellant. ^d

No. 90-0108.

Supreme Court of Wisconsin.

Argued Jan. 24, 1991.

Decided May 1, 1991.

Claude J. Covelli, argued, Boardman, Suhr, Curry & Field, Madison, for defendant-appellant.

Joe Thrasher, argued, Weisel, Thrasher, Doyle & Pelish, Rice Lake, for plaintiff-respondent.

DAY, Justice.

This case is before the court on certification from the court of appeals pursuant to sec. (Rule) 809.61, Stats.1987-88. State Farm Mutual Automobile Insurance Company (State Farm) appeals from a summary judgment entered by the circuit court of Barron county, the Honorable James C. Eaton, Judge, for damages in favor of Linda Thompson and against State Farm in the amount of $300,000 plus costs and disbursements.

This is an underinsured motorist case. The issue certified to us by the court of appeals was stated as: Does the accidental shooting of a passing motorist by a deer hunter seated on the bed of his pickup truck "arise out of" the "use" of the truck? The more complete statement of the issue is: Does the accidental shooting of a passing motorist by a disabled deer hunter sitting in the bed of his pickup truck and possessing a permit under sec. 29.09, Stats.1987-88 ¹ authorizing him to "shoot or hunt from a stationary vehicle," "arise out of" the "use" of the truck? (Emphasis added). The circuit court found that the accident arose out of the use of the motor vehicle, and that the accident was a risk within the reasonable contemplation of the parties to the insurance contract. The court therefore ruled that underinsured motorist coverage exists. We conclude that the accident arose out of the use of the underinsured motor vehicle, and we affirm the judgment of the circuit court.

Among other things the parties stipulated to the following facts:

1. On November 25, 1988 Lester E. Thompson died as a result of being struck by a bullet. On that date he was married to Linda Thompson, the plaintiff in this action. Lester and Linda Thompson have three minor children. Linda Thompson, as surviving spouse, is the appropriate plaintiff in this action.

2. On November 25, 1988 Lester E. Thompson had in effect three automobile insurance policies issued by State Farm Mutual Automobile Insurance Company, each on a vehicle owned by Lester E. Thompson. Each of these State Farm policies included underinsured motor vehicle coverage with limits of liability of $100,000 per person and $300,000 per accident.

3. Each of the three State Farm policies identified in paragraph 2 contains the following language:

We will pay damages for BODILY INJURY an INSURED is legally entitled to collect from the owner or driver of an UNDERINSURED MOTOR VEHICLE. The BODILY INJURY must be caused by accident arising out of the operation, maintenance or use of an UNDERINSURED MOTOR VEHICLE.

UNDERINSURED MOTOR VEHICLE--means a land motor vehicle:

1. the ownership, maintenance or use of which is insured or bonded for bodily injury liability at the time of the accident; and

2. whose limits of liability for bodily injury liability:

a. are less than the amount of the INSURED'S DAMAGES; or

b. have been reduced by payments to PERSONS other than the INSURED to less than the amount of the INSURED'S DAMAGES.

4. The plaintiff, Linda Thompson, is an "insured" as that word is used in the policy langauge in paragraph 3.

5. The pickup truck owned by Mr. Yndestad is an "underinsured motor vehicle" as that term is used in the policy language contained in paragraph 3.

6. The plaintiff, Linda Thompson, is legally entitled to collect damages from Mr. Yndestad for the death of Lester E. Thompson. These damages are for "bodily injury" as that term is used in the policy language contained in paragraph 3.

7. The "bodily injury" was caused by the "accident" as that term is used in the policy language contained in paragraph 3.

8. This "bodily injury" did not arise out of the "operation" or "maintenance" of an underinsured motor vehicle as those terms are used in the policy language contained in paragraph 3.

9. On November 25, 1988, Mr. Yndestad was using a Remington Model 700 7MM Magnum bolt action rifle while deer hunting. He was handicapped and had a permit pursuant to sec. 29.09 Wis.Stats. to shoot or hunt from a stationary vehicle.

10. On November 25, 1988, Mr. Yndestad was the owner of a brown Dodge pickup truck. This truck was insured for bodily liability arising from the ownership, maintenance or use of the truck.

11. On November 25, 1988, Mr. Yndestad drove the pickup truck off the roadway to a point near a wooded area in an open field. He parked next to a stacked pile of wood and stumps. He turned off the engine, left the cab and sat on the floor of the bed of the pickup truck.

12. After Mr. Yndestad had been sitting on the bed of the truck for a period of time, two deer came from the south across the open field in front of him. The deer were heading in a northerly direction toward the wooded area of the field to the west of Mr. Yndestad. He intentionally fired two shots at the deer with his rifle. He intended to hit one of the deer with each shot fired.

13. When Mr. Yndestad shot at the deer, he did so in the direction of Highway 48, which he could see from where he was sitting. He did not see any traffic on Highway 48 when he fired the shots. One of the shots missed the deer and traveled some 500 yards, passed [sic] the deer, to Highway 48 and struck Lester E. Thompson.

14. Mr. Yndestad was negligent for shooting his rifle in the direction of Highway 48 such that a bullet fired would cross the highway. This negligence was a cause of the bodily injury of Lester E. Thompson.

15. If this accident arises out of the use of an underinsured motor vehicle, as those words are used in State Farm's car policies, the plaintiff, Linda Thompson, is entitled to payment of the policy limits of the three policies for a total sum of $300,000.

16. The sole issue for resolution is whether the bodily injury to Lester E. Thompson was caused by an accident "arising out of the ... use of an underinsured motor vehicle."

Since neither party claims that the terms of the insurance contract are ambiguous, and the facts are stipulated, we review the issue as a question of law. "Application of the terms of an insurance policy to established facts is a question of law." Blackhawk Prod. v. Chicago Ins., 144 Wis.2d 68, 77, 423 N.W.2d 521 (1989). See also Garriguenc v. Love, 67 Wis.2d 130, 133, 226 N.W.2d 414 (1975); Elec. Power v. California Union Ins., 142 Wis.2d 673, 677, 419 N.W.2d 255 (Ct.App.1987). This court may decide questions of law independently, without deference to the trial court's decision. Lambert v. Wrensch, 135 Wis.2d 105, 115, 399 N.W.2d 369 (1987).

This court has previously interpreted the "arising out of ... use" language in an automobile liability policy. See, e.g., Lawver v. Boling, 71 Wis.2d 408, 238 N.W.2d 514 (1976); Tomlin v. State Farm Mut. Auto. Ins. Co., 95 Wis.2d 215, 290 N.W.2d 285 (1980); Allstate Ins. Co. v. Truck Ins. Exchange, 63 Wis.2d 148, 216 N.W.2d 205 (1974). While we rely on these interpretations, as did defendant State Farm, we reach a different result from that urged by State Farm.

In Lawver, Lawver sustained injuries when he fell from a platform rigged to a truck by a rope and pulley. 71 Wis.2d at 411, 238 N.W.2d 514. The rope was tied to Boling's truck, and passed through an opening in a barn, through the pulley, where it was attached to the platform supporting Lawver. Id. Boling, the insured, had been moving his truck forward and backward when the rope snapped and Lawver fell. Id. Boling's insurance company agreed to pay damages for bodily injury "arising out of the ... use" of the truck. Id. at 412, 238 N.W.2d 514. In Lawver's action against Boling, Boling's insurer moved for summary judgment on the grounds that there was no coverage. Id. at 410, 238 N.W.2d 514. The circuit court denied that motion and this court affirmed. Id. at 423, 238 N.W.2d 514. In interpreting the insurance policy, this court stated:

As used in a liability insurance policy, the words "arising out of" are very broad, general and comprehensive. They are commonly understood to mean originating from, growing out of, or flowing from, and require only that there be some causal relationship between the injury and the risk for which coverage is provided....

The causal connection required to be established between the use of the automobile and the injuries is not of the type which would ordinarily be necessary to warrant a finding of "proximate cause" or "substantial factor" as those terms are used in imposing liability for negligent conduct.

As it is used in the coverage clause of an automobile liability policy, the phrase "arising out of" is not so much concerned with causation as it is with defining the risk for which coverage will be afforded. The issue is whether the vehicle's connection with the activities which gave rise to the injuries is sufficient to bring those general activities, and the neglience connected therewith, within the risk for which the parties to the contract reasonably contemplated there would be coverage. This question is usually resolved by determining whether the alleged "use" is one which is reasonably consistent with the inherent nature of the vehicle.

Id. at 415-416, 238 N.W.2d 514.

In Tomlin, the court stated that "use," as that term is used in an automobile liability policy, "does not include a use which is completely foreign to a vehicle's inherent purpose." 95 Wis.2d at 225, 290 N.W.2d 285. The court held that the driver's act of stabbing an officer while the officer was removing beer cans from the automobile was not the type of "use" of the automobile reasonably contemplated by the parties and was not consistent with the inherent use of the automobile. Id.

State Farm argues that...