Wausau Underwriters Ins. Co. v. Howser, Civ. A. No. 88-2942.

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Writing for the CourtCharles Hill, Columbia, S.C., for defendant
Citation727 F. Supp. 999
PartiesWAUSAU UNDERWRITERS INSURANCE COMPANY, Plaintiff, v. Nancy Reece HOWSER, Defendant.
Decision Date08 January 1990
Docket NumberCiv. A. No. 88-2942.

727 F. Supp. 999

WAUSAU UNDERWRITERS INSURANCE COMPANY, Plaintiff,
v.
Nancy Reece HOWSER, Defendant.

Civ. A. No. 88-2942.

United States District Court, D. South Carolina, Columbia Division.

January 8, 1990.


727 F. Supp. 1000

Hoover Blanton, Columbia, S.C., for plaintiff.

Charles Hill, Columbia, S.C., for defendant.

ORDER

HENDERSON, District Judge.

This matter is before the Court on the parties' cross-motions for summary judgment pursuant to Fed.R.Civ.P. 56. Wausau Underwriters Insurance Company ("Wausau") brought this declaratory judgment action against its insured, Nancy Reece Howser ("Howser"), pursuant to 28 U.S.C. § 2201 for a declaration regarding coverage under the uninsured motorist provision of an automobile insurance policy. The parties agree that no genuine issue of material fact is in dispute and this action can be resolved as a matter of law. For the reasons stated below, the Court grants Wausau's motion for summary judgment and denies Howser's motion for summary judgment.

I.

On the night of June 13, 1987, Howser and her friend, Lisa Annette Shealy ("Shealy"), left a bowling alley in their hometown of Columbia, South Carolina, and headed home in a 1985 Chevrolet S-10 Blazer driven by Howser and owned by her father. After stopping at a McDonald's restaurant at the intersection of Decker Boulevard and Trenholm Road, they drove down Trenholm Road in the inside lane of the four-lane road. After about one-tenth of a mile, the Blazer was "bumped" from behind. Howser looked in the rear view mirror and saw a car behind them with a driver and no passengers. The car bumped the Blazer two more times and Howser accelerated the Blazer. The driver of the other car, who was unknown to them, pulled his car alongside the Blazer in the outside lane and yelled at them to roll down their window, slow down and stop their car. He pointed a pistol at the Blazer's passenger window where Shealy was seated. Howser made a quick left turn onto a side street to avoid the stranger's assault. As she completed her turn, the gunman shot at the Blazer. A bullet entered the rear of the vehicle, fragmented, pierced the driver's car seat and entered Howser's back in three places. Howser managed to bring the Blazer to a stop before losing consciousness and Shealy summoned help. The gunman continued traveling down Trenholm Road. Neither he nor his vehicle has been identified.

The injuries that Howser sustained were the result of the gunshot. Neither Howser nor Shealy was hurt when the other vehicle bumped the Blazer.

Howser initially brought a "John Doe" action in the Court of Common Pleas for Richland County, South Carolina, seeking to establish liability under the uninsured motorist provision of her father's automobile liability policy. See S.C.Code Ann. § 38-77-180 (Law.Co-op.1989). Wausau then brought this action seeking a declaration

727 F. Supp. 1001
that Howser's injuries are not covered under the policy. Howser's state action has since been removed from the trial roster

II.

The sole issue in this declaratory judgment action is whether the automobile insurance policy on Howser's father's Blazer, a vehicle registered in South Carolina, provides uninsured motorist coverage for Howser's gunshot injuries under South Carolina law. The uninsured motorist provision of the policy states:

We will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury:
1. Sustained by a covered person; and
2. Caused by an accident.
The owner's or operator's liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle.

There is no dispute that Howser is a "covered person" under the policy in question. There is a dispute, however, as to whether Howser's injuries were "caused by an accident." In South Carolina an "accident" is viewed from the victim's perspective and, if the injury, although intentionally inflicted, is as to the victim "unforeseen and not the result of his own misconduct," it is accidentally sustained within the meaning of the ordinary accident insurance policy.1 This provision therefore does not bar Howser's claim. The remaining policy condition in dispute is that the uninsured motorist's liability "must arise out of the ownership, maintenance or use of the uninsured motor vehicle."

Automobile liability insurance is mandatory in South Carolina under a statute which requires that an automobile insurance policy on a South Carolina motor vehicle contain a provision insuring "against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use" of the vehicle. S.C. Code Ann. § 38-77-140 (Law.Co-op.1989). Every automobile liability policy must also contain a provision "undertaking to pay the insured all sums which he is legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle." S.C.Code Ann. § 38-77-150 (Law.Co-op. 1989). The amount that an insured is "legally entitled to recover as damages" from an uninsured motorist is necessarily qualified by the language of section 38-77-140 limiting the wrongdoer's liability to damages "arising out of the ownership, maintenance, or use of" the wrongdoer's vehicle. The "arising out of the ownership, maintenance or use" language in the policy tracks the statutory language.

The current South Carolina statute applicable when the owner or operator of the uninsured vehicle is unknown imposes additional conditions on recovery under an uninsured motorist provision:

Conditions to sue or recover under uninsured motorist provision when owner or operator of motor vehicle causing injury or damage is unknown.
If the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, there is no right of action or recovery under the uninsured motorist provision, unless:
(1) the insured or someone in his behalf has reported the accident to some appropriate police authority within a reasonable time, under all the circumstances, after its occurrence;
(2) the injury or damage was caused by physical contact with the unknown vehicle, or the accident must have been witnessed by someone other than the owner or operator of the insured vehicle;
(3) the insured was not negligent in failing to determine the identity of the other vehicle and the driver of the other vehicle at the time of the accident.

S.C.Code Ann. § 38-77-170 (Law.Co-op. 1989).

South Carolina's first uninsured motorist statute was enacted in 1959. In 1963 the predecessor statute to section 38-77-170 was amended to require physical contact

727 F. Supp. 1002
with the unknown vehicle. For years the South Carolina Supreme Court strictly construed the statutory requirement that the injury or damage must have been caused by physical contact with the unknown vehicle.2 In Davis v. Doe the Supreme Court stated: "If it is advisable that the statute be changed, the solution lies within the province of the Legislature. We have no right to legislate the provision from the statute or to modify its application under the guise of judicial interpretation." 285 S.C. 538, 541, 331 S.E.2d 352, 354 (1985), quoting Coker v. Nationwide Insurance Company, 251 S.C. 175, 182, 161 S.E.2d 175, 178 (1968). After Davis the South Carolina General Assembly modified the statute. Amendments to section 38-77-170 which became effective in 1987 added the language "or the accident must have been witnessed by someone other than the owner or operator of the insured vehicle." Howser argues in part that, because Shealy was an independent witness to the accident, the Court must necessarily conclude the gunshot injury is covered under section 38-77-170

Neither the South Carolina Supreme Court nor the South Carolina Court of Appeals has yet decided the extent to which the 1987 amendments expand the coverage of an uninsured motorist provision.3 The enumerated conditions of section 38-77-170, however, have been and continue to be preceded by language restricting application of the statute to situations where "the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown." S.C. Code Ann. § 38-77-170 (Law.Co-op.1989) (emphasis added). Moreover, the South Carolina Supreme Court has consistently declared that uninsured motorist coverage should not by judicial interpretation be extended beyond the plain intent of the statute.4 It therefore seems clear that, before the Court can consider the enumerated conditions of section 38-77-170, Howser must show two related prerequisites for coverage. First, the motor vehicle with the unknown owner or driver must have caused the damage or injury as provided in section 38-77-170. Second, the injury must have "arisen out of the ownership, maintenance, or use of" the wrongdoer's motor vehicle as provided in section 38-77-140.5 The Court concludes that Howser has established

727 F. Supp. 1003
neither that the gunman's vehicle caused her injury nor that her injury arose out of the use of his vehicle

A.

The Court can find no South Carolina case in which insurance coverage has been sought for gunshot injuries suffered during a vehicular chase. Such cases have arisen in other jurisdictions and the decisions are fairly split on the issue of whether gunshot injuries associated with a vehicular chase arise out of the use of the gunman's vehicle.6 In other types of assaults with guns and objects, however, the weight of authority is that the resulting injuries do not arise out of the use of the wrongdoer's vehicle. For example, it has been held that where two motorists have come to a stop and one gets out of his car and shoots the other, the shooting injury does not arise out of the use of the gunman's car.7 The shooting of a pedestrian by an assailant in a parked car has also been held not to arise out of the use of the car.8 Courts have also...

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11 practice notes
  • Taylor v. Phoenix Ins. Co., No. 92-115
    • United States
    • Court of Appeal of Florida (US)
    • July 16, 1993
    ...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 th......
  • Cung La v. State Farm Auto. Ins. Co., No. 91SC349
    • United States
    • Colorado Supreme Court of Colorado
    • May 26, 1992
    ...between an insured's gunshot injuries and the uninsured vehicle from which the shots were fired. Wausau Underwriters Ins. Co. v. Howser, 727 F.Supp. 999 (D.S.C.1990); Kessler v. Amica Mut. Ins. Co., 573 So.2d 476, 477 (La.1991). In Wausau the South Carolina Supreme Court held that gunshot i......
  • Doe v. State Farm Fire and Cas. Co., Civ. A. No. 94-759-A.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • March 8, 1995
    ...(bullet wound to child passenger during high speed chase did not arise out of the use of the vehicle); Wausau Underwriters v. Howser, 727 F.Supp. 999 (D.S.C.1990) (injuries resulting from highway shooting did not arise out of use of automobile); Davis v. Criterion, 179 Ga.App. 235, 345 S.E.......
  • State Farm Mut. Auto. Ins. Co. v. Davis, No. 89-56044
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 1, 1991
    ...Employees Ins. Co. v. Melton, 357 F.Supp. 416 (D.S.C.1972), aff'd, 473 F.2d 909 (4th Cir.1973); Wausau Underwriters Ins. Co. v. Howser, 727 F.Supp. 999 (D.S.C.1990) (recognizing that California and Minnesota require less of a causal nexus to establish that an injury arises out of the use of......
  • Request a trial to view additional results
11 cases
  • Taylor v. Phoenix Ins. Co., No. 92-115
    • United States
    • Court of Appeal of Florida (US)
    • July 16, 1993
    ...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 th......
  • Cung La v. State Farm Auto. Ins. Co., No. 91SC349
    • United States
    • Colorado Supreme Court of Colorado
    • May 26, 1992
    ...between an insured's gunshot injuries and the uninsured vehicle from which the shots were fired. Wausau Underwriters Ins. Co. v. Howser, 727 F.Supp. 999 (D.S.C.1990); Kessler v. Amica Mut. Ins. Co., 573 So.2d 476, 477 (La.1991). In Wausau the South Carolina Supreme Court held that gunshot i......
  • Doe v. State Farm Fire and Cas. Co., Civ. A. No. 94-759-A.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • March 8, 1995
    ...(bullet wound to child passenger during high speed chase did not arise out of the use of the vehicle); Wausau Underwriters v. Howser, 727 F.Supp. 999 (D.S.C.1990) (injuries resulting from highway shooting did not arise out of use of automobile); Davis v. Criterion, 179 Ga.App. 235, 345 S.E.......
  • State Farm Mut. Auto. Ins. Co. v. Davis, No. 89-56044
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 1, 1991
    ...Employees Ins. Co. v. Melton, 357 F.Supp. 416 (D.S.C.1972), aff'd, 473 F.2d 909 (4th Cir.1973); Wausau Underwriters Ins. Co. v. Howser, 727 F.Supp. 999 (D.S.C.1990) (recognizing that California and Minnesota require less of a causal nexus to establish that an injury arises out of the use of......
  • Request a trial to view additional results

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