Ulrich v. United Services Auto. Ass'n
| Decision Date | 08 October 1992 |
| Docket Number | No. 92-6,92-6 |
| Parties | Lawrence M. ULRICH, Appellant (Plaintiff), v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellee (Defendant). |
| Court | Wyoming Supreme Court |
William R. Fix of Fix & Mulligan, Jackson, for appellant.
Richard P. Boley and Peter K. Michael of Boley & McKellar, P.C., Cheyenne, for appellee.
Before MACY, C.J., and THOMAS, CARDINE, URBIGKIT * and GOLDEN, JJ.
Lawrence B. Ulrich (Ulrich) filed a complaint against his automobile insurance carrier, United Services Automobile Association (USAA), seeking a declaration that the uninsured motorist (UM) provision of his liability policy provided coverage for injuries he sustained in a parking lot shootout. After a hearing on cross-motions for summary judgment, the district court determined that Ulrich's injuries did not "arise out of the ownership, maintenance or use of the uninsured motor vehicle," as required by Ulrich's USAA policy. The district court accordingly issued an order
which granted to USAA its motion for summary judgment. Ulrich appeals from the district court's order. We will affirm.
Ulrich presents the following issue for our review:
I. Do genuine issues of material fact exist as to whether appellant's injuries arose out of the "ownership, maintenance or use" of the uninsured motor vehicle precluding the entry of summary judgment?
USAA restates the issue in this manner:
Whether the intentional shooting of an insured by an uninsured motorist in a parking lot can be said to arise out of the assailant's use of his uninsured motor vehicle.
The facts of this case, drafted in the light most favorable to Ulrich, are as follows: On July 29, 1989, Ulrich and an acquaintance, Glenn Hildebrant, were drinking at the Cowboy Bar in Pinedale, Wyoming. While at the bar, Ulrich became upset with the unlady-like conduct of a bar patron, Kemo. Ulrich reproved Kemo for her conduct and a verbal confrontation ensued.
Kemo and her companion, Gus Stallings, left the bar shortly after the verbal confrontation. Ulrich dismissed the whole situation as mere "bar talk" and did not expect anything further to develop. However, when Ulrich and Hildebrant left the bar, Kemo approached shouting obscenities and began "putting a hurt on" Ulrich. Ulrich attempted to repel the attack by pushing Kemo aside, but was unsuccessful. The altercation continued, both combatants being egged-on by their sidekicks. Stallings then joined the assault by "sucker-punching" Ulrich a couple times from behind. Stallings' conduct so enraged Hildebrant that he intervened and proceeded to put "a whipp'n" on Stallings. At approximately this point in the melee, a bystander yelled "Hey, the cops are coming." The members of the crowd that had gathered "scattered like rats," and the fight came to an abrupt end. All parties to the fracas apparently walked away without incident.
Two weeks later, on August 12, 1989, Ulrich again found himself in the Cowboy Bar, this time accompanied by Darrin Hill. Ulrich and Hill had just attended a Little Britches' Rodeo and had stopped for a few beers before returning home. While at the bar, two fellows dressed in white and wearing fruit baskets on their heads invited Ulrich and Hill to a private toga party. Ulrich and Hill subsequently left the bar in Ulrich's Bronco. Hill was driving as he knew where the toga party was being held. While on the way, Hill decided to stop at the Trailside Convenience Store to purchase some cigarettes. He parked Ulrich's Bronco between the front entrance of the store and the gas pumps. Hill then went into the store for his cigarettes, and Ulrich exited the Bronco to put some air in the right front tire.
As Ulrich was putting air in his tire, a Toyota pickup with a camper shell pulled directly in front of and perpendicular to Ulrich's Bronco. The Toyota was positioned so as to block the Bronco's means of forward egress. Ulrich glanced upward and instantly recognized the occupants of the Toyota as Stallings and Kemo. Stallings immediately began yelling at Ulrich about the Cowboy Bar incident, stating he intended to get even. Ulrich countered by informing Stallings that he had no "beef" with him and, nicely put, by directing him to move his truck. Hill exited the Trailside as this exchange was in progress. Believing that the controversy was over the parking location of Stallings' truck, Hill also chimed in with his two cents worth. Stalling became enraged upon seeing Hill, who he mistakenly believed to be Hildebrant, and continued his threats to get even.
Ulrich and Hill then jumped into the Bronco. Somewhat confused, Hill excitedly asked "What's going on?" Ulrich explained, "He [Stallings] thinks you are Glenn [Hildebrant], the guy that beat him up a couple weeks ago at the fight." As Hill looked up after starting the Bronco, he noticed that Stallings' truck was no longer Stallings next got out of his truck with the handgun. It simultaneously occurred to Hill that Ulrich had a .44 caliber pistol and ammunition in the Bronco. As Hill and Ulrich were securing the pistol and ammunition, Stallings scurried around the back of his truck to a position approximately twelve to fifteen feet in front of the Bronco. Stallings then fired at least one shot at Hill and Ulrich, but did not hit either one of them. In response, Hill handed to Ulrich his loaded .44 caliber pistol. Stallings took cover on the driver's side of his truck and, unbeknown to Hill and Ulrich, switched his handgun for a shotgun. Hill, in the meantime, engaged the Bronco's transmission and began to speedily leave the parking lot. Just as the cab portion of the Bronco cleared the driver's side of Stallings' truck, Stallings, who was leaning against his truck, fired several shotgun blasts at the Bronco's tires and, after allegedly being shot in the leg by Ulrich, "shot one more time at the guy, or the passenger of the vehicle ... [hitting] him in the face with the shotgun." 1
blocking the way. In an attempt to get a better angle, Stallings had backed up and pulled parallel to the Bronco. Only the gas pumps separated the vehicles which, although parallel, were facing opposite directions. Stallings was leaning over his passenger, Kemo, and was pointing the business end of a chrome plated handgun at Hill and Ulrich. Stricken with fear, Ulrich shouted, "We don't want no trouble. Don't be a fool." Ulrich also tried to explain that Hill was not Hildebrant. Stallings would not listen and informed Ulrich to shut up or he, Stallings, would take care of him too
Hill and Ulrich proceeded out of the parking lot and headed south of town, apparently fearing that Stallings would give chase. Stallings, however, did not follow. Consequently, Hill pulled into a gas station just outside of the Pinedale city limits to evaluate the extent of Ulrich's injuries. After determining that they were serious, Hill returned to Pinedale to seek medical attention. A local doctor was initially consulted and recommended that Ulrich be transported to Salt Lake City, Utah, for further treatment. Ulrich's right eye was surgically removed at the Utah hospital, as were the pellets that were lodged in his face and right hand.
After discovering that Stallings was an uninsured motorist, Ulrich submitted a first party claim to his insurance carrier, USAA, for uninsured motorist (UM) benefits. USAA denied Ulrich's claim on the ground that his injuries did not "arise out of the ownership, maintenance or use of the uninsured motor vehicle," as required under the policy. Ulrich then filed a declaratory judgment action against USAA in district court to resolve the coverage dispute. After a hearing on cross-motions for summary judgment, the district court also determined that UM coverage did not exist. Specifically, the district court concluded that Ulrich's injuries did not arise out of Stallings' use of his vehicle, as the vehicle was merely the "situs" of the shooting. The district court accordingly granted summary judgment to USAA. This appeal followed.
When reviewing the propriety of a summary judgment, this court examines the record from the vantage point most favorable to the party opposing summary judgment to determine whether there exists a genuine issue of material fact to preclude disposition of the case as a matter of law. A genuine issue of material fact exists when a disputed fact, if proved, would have the effect of establishing or refuting an essential element to the cause of action or defense asserted by the parties. If upon such review no genuine issue of material fact is found to exist, we will uphold a summary judgment under any legal theory properly supported by the record.
Evansville v. Suomi, 836 P.2d 325, 328 (Wyo.1992) (citation omitted).
A review of the record from a vantage point most favorable to Ulrich fails to disclose a genuine issue of material fact which would preclude the disposition of this case as a matter of law. The record reflects that Ulrich was the only person deposed in connection with this case. Ulrich and USAA subsequently filed cross-motions for summary judgment on the UM coverage issue. Ulrich's motion was supported by his deposition testimony, by his affidavit, and by the affidavit of Darrin Hill. Ulrich's motion was later supplemented by a portion of Gus Stallings' testimony as transcribed at his criminal arraignment. USAA did not submit any documentation with its motion to controvert Ulrich's factual assertions. Rather, USAA's position throughout has been that the facts, viewed in Ulrich's favor, fail to give rise to a claim of UM coverage as a matter of law. Given USAA's position, we perceive no factual dispute to be resolved by a jury and proceed to resolve this case as a matter of law. See State Farm Fire and Cas. Co. v. Paulson, 756 P.2d 764, 766 (Wyo.1988).
Resolution of this case requires that we confront two interrelated legal issues. We must first determine if...
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