United Services Auto. Ass'n v. Morgan

• Citation: 23 Kan.App.2d 987,939 P.2d 959
• Decision Date: 23 May 1997
• Docket Number: No. 76357,76357
• Parties: UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellee, v. Donald L. MORGAN and Nancy A. Morgan, Appellants, Chad Morgan, Appellant, and Laura Vetter, Appellant.
• Court: Court of Appeals of Kansas

Page 959

939 P.2d 959

23 Kan.App.2d 987

UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellee, v. Donald L. MORGAN and Nancy A. Morgan, Appellants Chad Morgan, Appellant and Laura Vetter, Appellant.

No. 76357.

Court of Appeals of Kansas.

May 23, 1997.

Review Denied Sept. 23, 1997.

Syllabus by the Court

1. In construing an exclusion from coverage in an insurance policy, the courts employ a narrow construction on the theory that the insurer, having affirmatively expressed coverage through broad promises, assumes a duty to define any limitations on that coverage in clear and explicit terms.

2. In determining whether an automobile liability insurance policy covers a particular accident, the courts construe the coverage clause broadly to afford the greatest possible protection to the insured.

3. In order for an injury to arise out of the use of an insured vehicle, it need not be the proximate cause of the injury; it is sufficient if there is a causal connection between the injury and the use of the automobile.

Keith R. Henry, of Weary, Davis, Henry, Struebing & Troup, Junction City, for appellants Donald L. Morgan, Nancy A. Morgan, and Chad Morgan.

Robert L. Pottroff, of Myers, Pottroff & Ball, Manhattan, for appellant Laura Vetter.

William F. High and Roger W. Warren, of Blackwell Sanders Matheny Weary & Lombardi L.C., Overland Park, and William L. Frost, Morrison, Frost & Olsen, Manhattan, for appellee.

Before BRAZIL, C.J., LEWIS, J. and JOHN ANDERSON, III, District Judge, Assigned.

LEWIS, Judge:

This action was initiated by the issuer of a homeowner's insurance policy. The question litigated was whether the incident in question involving an automobile was covered by the homeowner's insurance policy. The trial court held there was no coverage under the homeowner's insurance policy. The defendants appeal.

It is not only politics that make strange bedfellows; sometimes lawsuits have the same effect. The three parties suing each other in the underlying damage action are joined together as appellants on this appeal. For that reason, we begin by identifying the parties involved. Laura Vetter is a defendant in this action but is the plaintiff in an underlying damage action against Chad Morgan. Chad Morgan was a passenger in the other vehicle involved in an accident with the Vetter vehicle and is alleged to have been part of the cause of that accident. Chad Morgan is also an appellant in this action. Donald and Nancy Morgan are the parents of Chad Morgan and are appellants in this action. They also owned the automobile which was involved in the Vetter accident. United Services Automobile Association (USAA) is the insurance company that issued the homeowner's policy to Donald and Nancy Morgan and under which Chad Morgan is an insured. The Morgan family and Laura Vetter all contend that the homeowner's insurance policy offers coverage for Chad Morgan's actions. USAA contends that its policy provides no coverage for Chad Morgan's liability to Vetter. This action was instituted by USAA as a declaratory judgment action, seeking a ruling that it had no coverage or responsibility under its homeowner's policy for the incident involved in the underlying damage action.

The outcome of this action will be controlled by the facts that gave rise to Vetter's damages. Those facts are stipulated by the parties.

On the night of the Vetter accident, Chad Morgan, Dana Gaither, and Jerrod Faulkner left Chapman for a drive to Manhattan. According to the record, they were going to Manhattan " 'to look for girls, to cruise.' " As the evening began, Chad Morgan was driving. At some point in the evening and for reasons of which we are not cognizant, Gaither began to drive the Morgan vehicle, Faulkner was in the passenger seat, and Chad Morgan was in the back seat. This was the location of all three young men at the time of the Vetter accident.

The accident took place in Manhattan in the early morning hours. At about 1:45 a.m., Gaither stopped the car at a traffic light in the left lane of an intersection. Vetter was stopped at the same light, sitting in her van in the right lane of the intersection. The Vetter vehicle was located approximately 6 feet from the Morgan vehicle. Suddenly and Vetter testified that as the vehicle sat at the intersection while Chad Morgan hurled obscenities and threats towards her, the engine of the Morgan vehicle was being revved and the vehicle rocked back and forth. According to Vetter, Chad Morgan was shaking his fists and making obscene gestures in her direction in a violent manner. Vetter testified she was very frightened and thought Chad Morgan was under the influence of drugs or alcohol.

                without any provocation whatsoever, Chad Morgan rolled down the window of his car, "flipped off" Vetter, and began to yell various obscenities at her.  He called her "a bitch" and "a whore" and yelled other obscene things.  He told her to come out of her van and said to her, " '[C]ome over here and such [sic ] my dick, and if you don't get out of that van I'm going to come get you out of that van.' "   Chad Morgan continued to hurl obscenities at Vetter throughout the red light and spat on her van.  According to Chad Morgan, he did this to amuse his friends.  He also contends he did so spontaneously and without any preconceived plan
                

In this atmosphere, the light turned green, and both vehicles drove forward. Suddenly, according to Vetter, the Morgan vehicle, driven by Gaither, veered sharply into her lane. In her fear of Chad Morgan and in an attempt to avoid a collision with the Morgan vehicle, she turned her vehicle to the right and struck the curb. This action caused her head to hit the steering wheel and snap back against the seat, after which she fell to the floor of the van. Vetter contends that as a result of the injuries she received, she has been diagnosed with brain disfunction and cognitive impairment.

As one might expect, Vetter sued both Chad Morgan and Gaither for damages. However, she settled with Gaither, which leaves Chad Morgan as the only defendant. We do not know, but it is reasonable to speculate, that the automobile liability policy limits have either been exceeded or are close to depleted. We assume that for that reason both Vetter and the Morgans are desirous of involving USAA as a source for the recovery of damages against Chad Morgan.

Chad Morgan filed a motion for summary judgment in the damage action, which was granted by the trial court. Vetter appealed, and the results of that appeal can be found in Vetter v. Morgan, 22 Kan.App.2d 1, 913 P.2d 1200 (1995). We reversed the grant of summary judgment in that case and remanded it as to Vetter's assault and negligence theories. It was sometime after our remand that the instant matter was filed. The trial on the underlying damage action awaits the determination of this appeal.

In Vetter v. Morgan, we held that Vetter's assault claim must be submitted to the trier of fact. In doing so, we noted Chad Morgan's threats to take her from her van, his incredibly foul language, and his close proximity to the Vetter vehicle. All of these facts made the assault charge a question of fact. However, it is clear that assault is an intentional tort and that even if the Morgans' homeowner's policy covers Vetter's negligence claim against Chad Morgan, the policy would not cover Chad's liability for assault. Indeed, on oral argument, counsel for the Morgan family agreed with us as to this point. That question, however, has not been made an issue on this appeal.

In the underlying damage action, we also sent the negligence claim back for trial. We believed there was a reasonable inference that Chad Morgan should have known that his behavior might frighten Vetter and create a risk of harm. We also concluded that a jury could find that Chad Morgan's incredible behavior may have contributed to the accident by causing Vetter to overreact to movement by the Morgan vehicle. In fact, we made the following observation:

"The record contains evidence that Morgan's actions, which continued for some 30 seconds, made Vetter 'very, very frightened.' Within seconds after the light changed, Morgan's car veered suddenly toward Vetter's van, and she reacted by instinctively turning sharply toward the curb. It would not be unreasonable to infer that her frightened state caused her to overreact to the car's approach and hit the curb, and that Morgan's actions were a substantial factor in bringing about the accident. This was a question of fact for In Vetter v. Morgan, we also concluded that Chad Morgan and Gaither could be jointly liable if it were shown that they acted together with a goal of harassing and frightening Vetter. 22 Kan.App.2d at 8, 913 P.2d 1200.

the jury." Vetter v. Morgan, 22 Kan.App.2d at 6, 913 P.2d 1200.

USAA bases its declaratory judgment action on the automobile exclusion in its homeowner's policy. It also argued that the policy did not provide coverage for injuries "expected or intended by the insured."

The trial court held in favor of USAA by holding that the automobile exception from coverage relieved USAA from any coverage or obligation under the homeowner's policy. In its decision, it relied on Garrison v. State Farm Mut. Auto. Ins. Co., 258 Kan. 547, 907 P.2d 891 (1995). It was the opinion of the trial court that the automobile was causally connected to Vetter's injuries:

"The opportunity to frighten Vetter arose because of the use of the automobile. But for the fact that the three young men used the automobile to come to Manhattan, they would not have been in a position for Chad Morgan to act as he did. The automobile was 'involved' itself in that the stipulated facts contain testimony that suggest that the auto's engine was revving and it was rocking back and forth, further adding to Vetter's fright."

STANDARD OF REVIEW

The question we must determine is whether the homeowner's insurance policy issued by USAA provides coverage...