Western Cas. and Sur. Co. v. Branon

• Citation: 463 F. Supp. 1208
• Decision Date: 19 January 1979
• Docket Number: Civ. No. 77-4003.
• Parties: The WESTERN CASUALTY AND SURETY COMPANY, Plaintiff, v. Donald L. BRANON and Ruth Erbes, Administrator of the Estate of June Gambill, Deceased, and Douglas J. Grady, Defendants.
• Court: U.S. District Court — Eastern District of Illinois

463 F. Supp. 1208

The WESTERN CASUALTY AND SURETY COMPANY, Plaintiff,
v.
Donald L. BRANON and Ruth Erbes, Administrator of the Estate of June Gambill, Deceased, and Douglas J. Grady, Defendants.

Civ. No. 77-4003.

United States District Court, E. D. Illinois.

January 19, 1979.

463 F. Supp. 1209

Howard Boman, Dunham, Boman & Leskera, East St. Louis, Ill., for plaintiff.

Harold H. Pennock, Jr., Hodson & Pennock, Ltd., Charles E. Holt, Centralia, Ill., for defendants.

FOREMAN, Chief Judge:

ORDER

The parties to the this lawsuit seek a declaratory judgment as to the legal meaning of the term "arising out of the .. use" of a vehicle. The parties have stipulated to the pertinent facts and ask the Court to determine the legal implication of the above phrase in an automobile insurance policy.

The stipulated facts are that on December 11, 1975 at around 6:30 P.M., seven persons were riding in a Ford van in the Centralia area. The owner and driver of the van, Donald Branon, had previously placed a .22 lever action long rifle and a 12 gauge shotgun on the floor in the center of the van. Both guns were uncased and the .22 rifle was loaded when Branon placed it in the van.

Seated in the front seat were Branon, June Gambill and John Meyers, while Doug and Kathy Grady and their eighteen month old daughter, Misty, sat in a U-shaped seat in the back of the van along with Darrel Branon, the driver's brother. The guns were laying on the floor in between the front and back seat of the van. Darrel Branon noticed that Misty Grady was playing around with or walking on the guns and told Kathy Grady that that was dangerous. Kathy picked up the child and told Doug Grady to move the guns. Meanwhile, a verbal exchange took place between Doug Grady and June Gambill. Grady said, "I ought to shoot you". With this, Grady pointed the gun at Gambill, and the weapon discharged, bringing about Gambill's death. The pathologist's report found that June Gambill's death was caused as a result of a gunshot wound in the back of the head.

These are the stipulated facts to which the parties ask this Court to apply to the automobile insurance policy involved. The policy written by the plaintiff, The Western Casualty and Surety Company, states in relevant part:

To pay on behalf of insured all sums which the insured shall become legally obligated to pay damages because of:

463 F. Supp. 1210

A. bodily injury

B. property damage; arising out of the ownership maintenance or use of the automobile. (Emphasis added)

This matter is before this Court based on diversity jurisdiction under 28 U.S.C. § 1332. The contract was apparently entered into and to be performed in Illinois; consequently, the law of Illinois controls the legal issues. Erie v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188; Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Ryan v. Napier, 252 F.Supp. 730 (N.D.Ill.1966). This exact issue has not been faced squarely by the Illinois courts, but the case law of other jurisdictions and the unique factual setting of this case leaves this Court with but one possible interpretation of the application of the clause "arising out of the . . use" of the automobile.

At the outset, the Court notes that the insurance contract was drawn by plaintiff and any ambiguity should be strictly construed against the plaintiff, Richland Knox Mutual Ins. Co. v. Kallen, 376 F.2d 360 (6th Cir. 1967), and that the term "arising out of the . . . use", in automobile liability policies has been held to be a broad, general and comprehensive term effecting broad coverage. As the defendant states in his brief, "arising out of the use" has been held to mean "originating from", "having its origin in", "growing out" or "flowing from". Insurance Company of North America v. Royal Indemnity Co., 429 F.2d 1014 (6th Cir. 1970). The defendants correctly point out that the term using or use of a vehicle has been a general catch all term construed by the courts to include all proper uses of a vehicle. Appleman Insurance Law and Practice § 4316 (1962). The injury need not be the direct and proximate cause in a strict legal sense of the tort liability, Smith v. Travelers Indemnity Co., 32 Cal.App.3d 1010, 108 Cal.Rptr. 643 (1973).

The proper test is that a causal connection must exist between an accident or injury and the use of a vehicle in order for the accident or injury to come within the meaning of the clause "arising out of the use" of a vehicle, United States Fidelity and Guarantee v. Western Fire, 450 S.W.2d 491 (Ky.App.1970) (see also cases in annotation at 89 A.L.R.2d 150). In Appleman Insurance Law and Practice, it is stated that the injury must have arisen out of the inherent nature of the automobile as such, in order to bring the injury within the...