Willard v. Kelley, 69347

• Decision Date: 04 December 1990
• Docket Number: No. 69347,69347
• Citation: 803 P.2d 1124,1990 OK 127
• Parties: George Ray WILLARD and Carol Willard, husband and wife, Plaintiffs-Appellees, v. Mark Wesley KELLEY, Defendant, and Prudential Property and Casualty Insurance Co., Defendant-Appellant.
• Court: Oklahoma Supreme Court

Page 1124

803 P.2d 1124

1990 OK 127

George Ray WILLARD and Carol Willard, husband and wife Plaintiffs-Appellees, v. Mark Wesley KELLEY, Defendant and Prudential Property and Casualty Insurance Co., Defendant-Appellant.

No. 69347.

Supreme Court of Oklahoma.

Dec. 4, 1990.

On Certiorari to the Court of Appeals, Div. 1.

In a claim against an insurer to recover under the uninsured motorist and medical payments coverage for loss which resulted from a shooting incident, asserted to have been an accident arising out of the use of an automobile, the District Court, Tulsa County, Jane P. Wiseman, Judge, gave summary judgment to the insured. The Court of Appeals affirmed. Upon the insurer's petition.

CERTIORARI IS GRANTED. THE COURT OF APPEALS' OPINION IS VACATED; THE TRIAL COURT'S SUMMARY JUDGMENT AGAINST THE INSURER IS REVERSED; CAUSE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS PRONOUNCEMENT.

Gary A. Eaton, Michael L. Seymour, Tulsa, for appellees.

John A. Gladd, Gibbon, Gladd & Associates, P.A., Tulsa, for appellant.

OPALA, Vice Chief Justice.

On affirmance of summary judgment for the insured, the insurer urges on certiorari that the evidentiary materials in the record support but a single inference--that the harm for which recovery is sought did not "arise out of the use of an uninsured automobile." Although we reject the insurer's proposition, we reverse the summary judgment and remand this cause for trial.

I.

ANATOMY OF LITIGATION

A.

The facts affecting the claim

While on patrol, police officer George Ray Willard spotted a vehicle driven by then-suspected armed robber, Mark Wesley Kelley. As Willard attempted to stop him, a chase ensued. After colliding with two other cars, Kelley's automobile came to a temporary halt. The patrol car stopped behind it. Willard quickly drew his weapon as he stepped out beside his car. He then heard a gunshot and felt his left arm drop from its raised position. Although he immediately ducked behind his car door, more bullets were fired from Kelley's automobile. Several of them, penetrating the car door, struck Willard.

B.

The case before the trial court

Willard and his wife, Carol, [collectively called insured] sued both Kelley and their personal automobile insurance carrier, Prudential Property and Casualty Insurance Co. (insurer or Prudential). From the latter they sought to recover the limits of the policy's uninsured motorist (UM) coverage for bodily injuries sustained in the shooting incident. Willard alone pressed for recovery under the medical payments coverage. ¹ Without affecting any issue in controversy between Prudential and its insured, default judgment was taken against Kelley, and, since the latter did not appeal, that judgment now stands as final.

The remaining parties in the lawsuit (the insured and insurer) stipulated to these facts: 1) at the time of the shooting Kelley was an uninsured/underinsured motorist within the meaning of the UM statute, 36 O.S.1981 § 3636, ² 2) from within an automobile, Kelley "shot ... Willard several times thus inflicting wounds [upon several parts of his body]" while the latter was beside his patrol car and 3) the damages sustained by the insured "equal or exceed" the limits of the insurance policy's UM and medical payments coverages.

Each party sought summary judgment. The insurer argued that coverage is afforded neither by the UM statute nor by the insurance policy, which contains the following provision:

"[Insurer is obligated] [t]o pay all sums which the insured ... shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury ... sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile...." (Emphasis added.)

Prudential maintained that, as a matter of law, Kelley's act of shooting from an automobile does not constitute a "use" which gives rise to UM liability within the meaning of the quoted policy language. The insured, on the other hand, urged that the injurious event should be viewed as an "accident" stemming from Kelley's "continuous and uninterrupted" operation and use of an uninsured vehicle. The policy does not define the term "accident."

Prudential's refusal to pay Willard under the medical payments coverage appears to have been rested on the following policy provision which obligates the company

"[t]o pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, X-ray and dental services ...

" * * * To or for the named insured ... who sustains bodily injury ... caused by accident,

" * * *

"(b) while occupying a non-owned automobile, but only if such person has ... the permission of the owner to use the automobile and the use is within the scope of such permission...." (Emphasis added.)

The trial court gave summary judgment to the insured and found 1) the injurious episode "was an accident which arose out of the use of an uninsured automobile" and 2) the insured is entitled to recover under the UM and medical payments provisions of the policy. ³

C.

The issues in the Court of Appeals

According to the insurer's brief-in-chief, the UM protection Willard invokes in this case is neither mandated by § 3636 nor provided by the terms of the policy in suit, because his injuries did not arise out of the use of an uninsured vehicle. Prudential also argued that medical payments coverage, which is triggered only if the insured is injured while occupying an automobile, should not have been found applicable to this claim since Willard was "clearly outside" his vehicle when the shooting occurred.

The insured urged that the trial court correctly characterized the shooting incident as an accident which arose out of the gunman's (Kelley's) use of an automobile. In support of medical payments coverage, Willard relied on the policy's own definition of the term "occupying." Since it expressly includes "alighting from" an automobile, which, he contended, is what he was doing when Kelley opened fire, his presence "outside" the vehicle does not preclude recovery.

The Court of Appeals held that when considering insurance coverage, "the automobile need not be the proximate cause of the accident, but the broader requirement of causal relationship or connection is the appropriate test." Concluding that the insured's loss arose from the use of an uninsured car, the appellate court reasoned that Kelley's vehicle "was the causal relationship or connection between Kelley's actions and Willard's injuries." On the question of medical payments coverage, the court accepted Willard's proposition and affirmed the decision allowing recovery.

D.

The issues on certiorari

Prudential urges on certiorari that both the Court of Appeals and the trial court erroneously concluded as a matter of law that Willard's injuries arose from Kelley's use of the car. The essence of Prudential's position is that Willard's injuries arose from the use of a firearm which is not a "natural and reasonable consequence" of a vehicle's use; the gunman's criminal act (of shooting Willard) "intervened" between the vehicle's use as a means of escape and Willard's gunshot wounds. Based on the "same arguments" against Willard's quest for UM protection, the insurer views medical payments coverage as equally unavailable.

The insured's response to the certiorari petition seeks to provide a cogent foundation for the Court of Appeals' opinion and reasserts what the trial court, the Court of Appeals and the insurer all have concurred in: that the evidentiary materials tendered in the summary judgment process show that no material fact issues remain to be tried and that resolution of this claim hinges solely on a question of law. We reject this notion because, based on our assessment of the record, conflicting inferences may be drawn from the material facts placed before the trial court. ⁴ Summary judgment for the insured was hence improvidently rendered. We grant Prudential's petition for certiorari to provide guidance upon remand.

II. THE INSURED'S QUEST FOR UM RECOVERY

It is not contested that the insured's injuries, to be redressible, must have been 1) caused by an accident and 2) arisen out of the use of an automobile. These elements are the sine qua non of the UM claim at bar, and, for reasons to be explained, both are inextricably intertwined. We must hence address each of them as they relate to the instant case. ⁵

A.

The automobile policy requirement that the harm to be

indemnified be one caused by an accident

The insured had argued that the question whether an accident has occurred should be answered by assessing the harm-dealing event from his standpoint. Although the trial court specifically found that Willard's injuries were caused by an accident, the record is silent as to how the fact finding process was shaped.

The judicial approach of gauging the character of an injurious event from the insured's standpoint is not new to American jurisprudence. In cases where recovery was sought on a policy insuring against accidental death or injury, the terms "accident" or "accidental" have long been held to describe an occurrence which is unexpected, unintended and unforeseen in the eyes of the insured. ⁶ This is to say, even if an insured becomes the victim of an intentional act, the nature of the injury is nonetheless viewed as accidental, so long as the harm was not the reasonably foreseeable result of the insured's own wilful act or misconduct. ⁷ In the context of life and accident insurance this principle is also well established in Oklahoma. ⁸

While public liability insurance generally does not protect the insured who intentionally inflicts harm upon another, ⁹ UM and medical payments coverages afford indemnity to the insured for harm caused by another. We therefore hold that, in the absence of a contrary provision, an automobile insurance policy which includes...