Wausau Underwriters Ins. Co. v. Howser

• Citation: 422 S.E.2d 106,309 S.C. 269
• Decision Date: 23 September 1991
• Docket Number: No. 23710,23710
• Court: United States State Supreme Court of South Carolina
• Parties: WAUSAU UNDERWRITERS INSURANCE COMPANY, Appellee, v. Nancy Reece HOWSER, Appellant. . Heard

Page 106

422 S.E.2d 106

309 S.C. 269

WAUSAU UNDERWRITERS INSURANCE COMPANY, Appellee, v. Nancy Reece HOWSER, Appellant.

No. 23710.

Supreme Court of South Carolina.

Heard Sept. 23, 1991.

Decided Aug. 31, 1992.

Charles E. Hill of Turner, Padget, Graham & Laney, P.A., Columbia, for appellant.

Hoover C. Blanton of Whaley, McCutchen, Blanton & Rhodes, Columbia, for appellee.

PER CURIAM:

Pursuant to Rule 228, SCACR, the following questions have been certified to this Court by the United States Court of Appeals for the Fourth Circuit:

1. "Is the insurer liable under the uninsured motorist provision involving injuries 'arising out of the ownership, maintenance, or use' of an uninsured vehicle (Section 38-7-140, S.C. Code Ann.) for gunshot injuries sustained by a person traveling on a public highway in an insured vehicle and inflicted during a vehicular chase by an unknown owner or operator of an unidentified vehicle?"

2. "Is, under the circumstances of this case, subsection 2 of Section 38-77-170 ('Conditions to sue or recover under uninsured motorist provision ...') satisfied by the presence of an independent witness to the accident causing the injury of the defendant in this case, even though the injury was not caused by 'physical contact with the unknown vehicle?' "

We respond to both questions affirmatively.

FACTS

Nancy Reece Howser ("Howser"), while driving her father's vehicle, was injured by an unknown assailant. Mr. Howser's vehicle was insured by Wausau Underwriters Insurance Company ("Wausau").

The details surrounding the incident are set forth in the Order of the United States District Court in Wausau Underwriters Insurance Co. v. Howser, 727 F.Supp. 999 (D.S.C.1990):

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 (UM) provision of her father's automobile liability policy. See S.C. Code Ann. § 38-77-180 (1989). Wausau then brought this action seeking a declaration that Howser's injuries are not covered under the policy.

The District Court granted Wausau's motion for summary judgment, holding that Howser's injury did not arise out of the use of the assailant's vehicle. Wausau, 727 F.Supp. at 1006. Additionally, the District Court found Howser failed to establish that the gunman's vehicle caused her injury as required by section 38-77-170. Id.

LAW/ANALYSIS

1. Is the insurer liable under the uninsured motorist provision involving injuries 'arising out of the ownership, maintenance, or use' of an uninsured vehicle (Section 38-77-140, S.C. Code Ann.) for gunshot injuries sustained by a person traveling on a public highway in an insured vehicle and inflicted during a vehicular chase by an unknown owner or operator of an unidentified vehicle?

It is mandatory that all automobile insurance policies issued in South Carolina contain an uninsured motorist 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 (1989). An insured is legally entitled to recover damages "arising out of the ownership, maintenance or use" of an uninsured vehicle. S.C. Code Ann. § 38-77-140 (1989). Thus, the issue presented is whether Howser's injuries arose out of the ownership, maintenance or use of the assailant's vehicle.

The pertinent facts presented here are virtually identical to those found in Continental Western Insurance Co. v. Klug, 415 N.W.2d 876 (Minn.1987). The Klug court found the gunshot injuries arose out of the use of the uninsured motorist vehicle. ¹ We find the analysis employed by the Minnesota Supreme Court is consistent with South Carolina law.

In Klug, the court first considered the causal connection between the vehicle and the injury. The causation required is something less than proximate cause and something more than the vehicle being the mere site of the injury. Id. We employed a similar analysis in Chapman v. Allstate Insurance Co., 263 S.C. 565, 211 S.E.2d 876 (1975), wherein an uninsured motorist assaulted the insured while traveling in the uninsured's vehicle. The insured was injured when she fell or jumped from the moving vehicle as a result of the attack. Accordingly, we held it was clear the injury arose out of the use of the uninsured automobile. Id. at 570, 211 S.E.2d at 879. Although the assault, not the use of the vehicle, was the cause of the insured's injuries, we found that the use of the vehicle causally contributed to the claimant's injuries. Id. See also Coletrain v. Coletrain, 238 S.C. 555, 121 S.E.2d 89 (1961) (Court cited with approval Fidelity & Casualty Co. of N.Y. v. Lott, 273 F.2d 500 (5th Cir.1960), wherein the death caused by the negligent discharge of a rifle when the automobile was being used as a gun rest was held to have arisen out of the use of an automobile for purposes of insurance policy).

In the case at bar, it is apparent that the unknown vehicle was an active accessory to this assault. This is not a case in which the assailant merely used the vehicle to provide transportation to the situs of the shooting as was found in Nationwide Mut. Ins. Co. v. Brown, 779 F.2d 984 (4th Cir.1985). Nor is it a case where the assailant happened, incidentally, to be sitting in a stationary vehicle at the time of the attack. Only through use of his vehicle was the assailant able to closely pursue Howser, thereby enabling him to carry out the pistol assault. The gunshot was the culmination of an ongoing assault, in which the vehicle played an essential and integral part. Additionally, only a motor vehicle could have provided the assailant a quick and successful escape. Thus, we find a sufficient causal connection exists between the use of the assailant's vehicle and Howser's injuries.

Once causation is established, the court must determine if an act of independent significance occurred breaking the causal link. Klug, 415 N.W.2d at 878. This also is consistent with South Carolina precedent. In Plaxco v. United States Fidelity and Guaranty Co., 252 S.C. 437, 166 S.E.2d 799 (1969), the vehicle's battery was used to start the engine of an airplane. Once this was accomplished, the airplane's brakes failed, causing it to move forward and damage another plane. This Court found the only connection between the vehicle and the plane was the use of the vehicle to start the plane. Since that purpose had been completed when the plane moved forward, any causal connection was broken and the accident resulted from the use of the plane and not the vehicle. Id. at 441, 166 S.E.2d at 801. See also Hite v. Hartford Accident & Indem. Co., 288 S.C. 616, 344 S.E.2d 173 (Ct.App.1986), ("if the injury is directly caused by some independent act or intervening cause wholly disassociated from, independent...