Travelers Indem. Co. v. Auto World

• Decision Date: 18 January 1999
• Docket Number: No. 2927.,2927.
• Citation: 334 S.C. 137,511 S.E.2d 692
• Court: South Carolina Court of Appeals
• Parties: The TRAVELERS INDEMNITY COMPANY, Secondary Appellant, v. AUTO WORLD OF ORANGEBURG, INC., Cheryl Diane Albergotti, as Personal Representative of the Estate of Joseph McKewn Albergotti, Jr., deceased, Melissa D. Albergotti, as Personal Representative of the Estate of Gail M. Osborne, deceased; Faye S. Osborne, as Personal Representative of the Estate of Flynn C. Osborne, deceased, and South Carolina Farm Bureau Mutual Insurance Company, Melissa Albergotti, Personal Representative of the Estate of Gail Mims Albergotti Osborne, Respondent, v. Travelers Insurance Company, South Carolina Farm Bureau Mutual Insurance Company; and Cheryl Diane Albergotti, as Personal Representative of the Estate of Joseph McKewn Albergotti, Jr., of whom South Carolina Farm Bureau Mutual Insurance Company is, Primary Appellant.

334 S.C. 137

511 S.E.2d 692

The TRAVELERS INDEMNITY COMPANY, Secondary Appellant, v. AUTO WORLD OF ORANGEBURG, INC., Cheryl Diane Albergotti, as Personal Representative of the Estate of Joseph McKewn Albergotti, Jr., deceased, Melissa D. Albergotti, as Personal Representative of the Estate of Gail M. Osborne, deceased; Faye S. Osborne, as Personal Representative of the Estate of Flynn C. Osborne, deceased, and South Carolina Farm Bureau Mutual Insurance Company, Melissa Albergotti, Personal Representative of the Estate of Gail Mims Albergotti Osborne, Respondent, v. Travelers Insurance Company, South Carolina Farm Bureau Mutual Insurance Company; and Cheryl Diane Albergotti, as Personal Representative of the Estate of Joseph McKewn Albergotti, Jr., of whom South Carolina Farm Bureau Mutual Insurance Company is, Primary Appellant.

No. 2927.

Court of Appeals of South Carolina.

Heard December 8, 1998.

Decided January 18, 1999.

Lewis C. Lanier, of Horger, Horger, Lanier & Knight, of Orangeburg, for Primary Appellant.

William P. Davis, of Baker, Barwick, Ravenel & Bender, of Columbia, for Secondary Appellant.

Charles H. Williams, of Williams & Williams, of Orangeburg; and Gedney M. Howe, III, of Charleston, for Respondent. ANDERSON, Judge:

This declaratory judgment action was brought to determine whether the death of Gail M. Osborne was a covered event under either one or two automobile insurance policies. South Carolina Farm Bureau Mutual Insurance Company ("Farm Bureau") issued one of these policies to Flynn C. Osborne. Travelers Indemnity Company ("Travelers") issued the other policy to Auto World of Orangeburg, Inc. ("Auto World"). Farm Bureau and Travelers appeal an order concluding both policies provided coverage. We reverse.

FACTS/PROCEDURAL BACKGROUND

Gail M. Osborne and her husband, Flynn C. Osborne, were killed by shotgun blasts on April 11, 1993, while they were sitting in their car which was stopped offside a rural highway. The parties stipulated the evidence is sufficient for a jury to conclude Joseph Albergotti, Jr., killed the Osbornes. On that day, Albergotti was driving, with permission, a car owned by Auto World. At the time of the shooting, the car driven by Albergotti was parked behind the Osbornes' car. Albergotti shot the couple while standing outside the car. A nearby resident and a driver passing by witnessed the incident. Their recollections differ somewhat.

Heather Hart witnessed the incident from her back porch. She estimated the distance separating herself and the cars was that of a football field. Hart first noticed the cars just before they pulled off of the road. She said they were traveling very slowly, but she observed nothing to suggest one of the cars forced the other off the road. She recalled one car came to a stop directly behind the other, leaving enough room that the assailant was able to stand between the cars. The second car was the assailant's. After the cars stopped, the assailant exited his car, approached the rear of the other car, and began firing. He fired one or two shots into the rear window of the Osbornes' car, one or two shots into the passenger's window, and one or two shots into the driver's window. The assailant then got back into his car and drove away in the direction from which he came.

Dennis Keller was driving on Highway 310 toward Holly Hill when he noticed a car on the side of the road facing the opposite direction. The car had its flashers on and a man was inside waving his hands in the air. Another man stood outside the car. Concerned that the man in the car was having a seizure, Keller decided to stop. As Keller passed by, however, the man standing by the car rushed back to the second car, removed a gun from it, and aimed the gun at the first car. Keller recalled the second car was a car-length behind the first. Standing at the rear of the front car, the assailant fired the gun. He did not prop the gun up on his car when firing. The assailant returned to his car. Keller observed the car "swing around" and leave, but could not tell the direction it went. Later that day, Albergotti committed suicide.

Melissa Albergotti, the personal representative of Gail Osborne's estate, sued Joseph Albergotti's estate for wrongful death. Travelers sought a declaratory judgment the garage policy it issued to Auto World provided no liability coverage for Gail Osborne's death. Farm Bureau sought a declaratory judgment the policy it issued to Flynn Osborne provided no underinsured motorist coverage for the death. The parties stipulated that if the Travelers policy provided coverage, the proceeds payable would be limited to $15,000. The parties further stipulated any coverage provided by the Farm Bureau policy would be limited to $15,000.

The Master-in-Equity issued an order concluding both policies provided coverage. Travelers and Farm Bureau appeal that order.

STANDARD OF REVIEW

A suit for declaratory judgment is neither legal nor equitable, but is determined by the nature of the underlying issue. Felts v. Richland County, 303 S.C. 354, 400 S.E.2d 781 (1991). The dispositive issue in this case is whether the death is a covered event under either the Travelers or Farm Bureau policies. An action to determine coverage under an automobile policy is an action at law. See Noisette v. Ismail, 299 S.C. 243, 384 S.E.2d 310 (Ct.App.1989),

rev'd in part on other grounds, 304 S.C. 56, 403 S.E.2d 122 (1991). See also United States Fire Ins. Co. v. Macloskie, 320 S.C. 459, 465 S.E.2d 759 (Ct.App.1995) (declaratory judgment action to determine coverage under insurance policy's omnibus clause is action at law, and in action at law tried without jury, findings of fact made by trial court have same force and effect as those of jury). In an action at law tried without a jury, the findings of fact made by the trial court will not be disturbed on appeal unless found to be without evidence which reasonably supports the judge's findings. Townes Assocs., Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976).

LAW/ANALYSIS

Farm Bureau and Travelers argue the Master-in-Equity erred in concluding the policies provided coverage for Gail Osborne's death because her death did not arise out of the "ownership, maintenance, or use" of the two vehicles. We agree.

The law concerning coverage of events which arise out of the "ownership, maintenance, or use" of automobiles has evolved over time. The development of our current law began with Nationwide Mut. Ins. Co. v. Brown, 779 F.2d 984 (4th Cir.1985). In that case, a truck's passenger, Toby Brown, grabbed the steering wheel causing the truck to collide with a car. Brown then exited the truck and fatally shot his estranged wife, Lynda Brown, the driver of the car. In affirming the denial of coverage, the Fourth Circuit Court of Appeals reasoned:

First, under the Nationwide Dunn policy, it is clear that the use of Dunn's truck for transportation of Toby Brown to the scene of the shooting was merely incidental, remote from the type of conduct that is reasonably foreseeable with the normal use of such a vehicle; and not the causative factor in producing Lynda Brown's death. Rather, Toby Brown's assault, an act wholly independent of the use of the truck, caused the death. Thus, the incidental use of Dunn's truck in the shooting does not meet the causal relation test of coverage.

Nationwide Mut. Ins. Co., 779 F.2d at 989 (citations omitted).

The first two requirements of our current test emerged in Hite v. Hartford Acc. & Indem. Co., 288 S.C. 616, 344 S.E.2d 173 (Ct.App.1986). Hite worked at a car dealership. His employer gave permission and provided automobiles for Hite's use. The automobiles were insured by Hartford. On March 27, 1981, Hite drove back from supper to the car dealership in an automobile provided by his employer. Leaving the car running, Hite got out of the car and approached the dealership on foot. He heard the night watchman yell to him that someone (William Martin) had backed into a new truck. Hite walked fifty feet across the parking lot to tell Martin, who was sitting in a car, not to leave. Martin then accelerated the vehicle. Hite's legs were run over by the left rear tire. At that time, Hite was not in, on, or touching a vehicle insured by Hartford. In determining whether an injury sustained remote to the actual operation of the vehicle was encompassed by the term "use," this Court held:

What appears to be crucial to many courts in determining whether an injury produced by another vehicle or person falls within the ambit of "use" is the existence of a causal connection between an accident or injury and the use of the vehicle. It has been held that the existence of a causal connection obviates the necessity of finding that the injury was directly and proximately caused by the use of the vehicle, and affords coverage for injuries bearing almost any causal relation with the insured vehicle. The injury must, however, be foreseeably identifiable with normal use, maintenance, and ownership of the vehicle. If the injury was directly caused by some independent or intervening cause wholly disassociated from, independent of or remote from the use of the automobile, the injury cannot be said to arise out of its "use." Even if there is some remote connection between the use of the automobile and the injury complained of, if the injury is directly caused by some independent act or intervening cause wholly disassociated from, independent of, and remote from the use of the automobile, the injury is not the result of the "use" of an automobile.

In the instant case [Hite] left the insured automobile, walked toward the dealership, and answered the call of the night watchman by walking fifty feet to tell Martin not to leave after he had backed into a truck. [Hite's] injury was directly caused by Martin, and this was an independent or intervening cause wholly disassociated from, independent of, and remote from the use

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