ATTORNEY FOR APPELLANTS: ATTORNEY FOR APPELLEE
STATE FARM MUTUAL AUTOMOBILE
ROSS HUBBELL INSURANCE COMPANY:
KEVIN G. KERR
Hoeppner, Wagner & Evans
COURT OF APPEALS OF INDIANA
SHARMEIKA MOONS and )
RANDY WILLIAMS, )
vs. ) No. 45A03-0102-CV-53
CALVIN KEITH and
STATE FARM MUTUAL )
AUTOMOBILE INSURANCE )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable William Davis, Judge
Cause No. 45D02-9910-CT-407
November 20, 2001
OPINION - FOR PUBLICATION
Sharmeika Moons and Randy Williams appeal the trial courts entry of summary judgment
for State Farm Mutual Automobile Insurance Company (State Farm). They assert on appeal
that the trial court erred in granting summary judgment for State Farm because
their injuries arose from the operation, maintenance, or use of an uninsured automobile.
Because we find that there is no causal relationship between the vehicle
and the injuries sustained by Moons and Williams, we affirm.
Facts and Procedural History
On October 30, 1997, Williams was driving a Buick Regal in Gary, Indiana.
Taranee Lewis, Moons, and her son Quincy were all passengers in the
car at the time. As he was stopped at the intersection of
Fifteenth Avenue and Clark Road, Williams saw Calvin Keith turn his vehicle around
and position his car in the intersection beside the Buick Regal Williams was
driving. Keith rolled the window down, turned up the volume on the
radio, and began firing shots from his pistol into the Buick Regal.
The Buick Regal was blocked by another stopped car, and thus, Williams was
unable to drive away. Keith fired seventeen shots into the car, injuring
the occupants. The two cars did not come into contact during the
The car Williams was driving was insured with State Farm. The policy
contains an uninsured benefits provision, which reads, [w]e will pay damages for bodily
injury an insured is legally entitled to collect from the owner or driver
of an uninsured motor vehicle. The bodily injury must be caused by
accident arising out of the operation, maintenance, or use of an uninsured motor
vehicle. Appellants App. P.7 and Appellees App. P.13. Williams and Moons
sought coverage for their injuries under this policy. State Farm denied coverage
because the occupants injuries did not arise out of the operation, maintenance, or
use of an uninsured vehicle. Williams and Moons then filed a complaint
against State Farm. State Farm moved for summary judgment, asserting that Williams
and his passengers being shot was not a risk reasonably contemplated when the
policy was issued. After a hearing, the trial court granted the motion.
Williams and Moons now appeal.
Discussion and Decision
Williams and Moons contend that the trial court erred in granting State Farms
motion for summary judgment. When reviewing the grant or denial of summary
judgment, we apply the same standard as the trial court. Shelter Mutual
Ins. Co. v. Barron, 615 N.E.2d 503, 505 (Ind. Ct. App. 1993), trans.
denied. Summary judgment will only be granted if the evidence shows that
there is no genuine issue of material fact and that the moving party
is entitled to judgment as a matter of law. Id. Further,
all evidence must be construed in favor of the party opposing the motion,
and any doubt as to the existence of a material issue must be
resolved against the moving party. Id.
Specifically, Moons and Williams argue that their injuries arose from the use of
an uninsured vehicle driven by Keith, and therefore, the insurance policy from State
Farm covers their injuries. The interpretation and construction of insurance policy provisions
is a function for the courts. State Farm Mut. Auto. Ins. Co.
v. Spotten, 610 N.E.2d 299, 300 (Ind. Ct. App. 1993), trans. denied.
When interpreting an insurance policy, we strive to ascertain the intent of the
parties as manifested in the insurance contract. Id. We will not
remove a risk from coverage if the policy can be construed to reasonably
protect that risk. Id. Further, if an ambiguity exists in the
contract, the contract will be construed liberally in favor of the insured.
Id. An ambiguity exists if reasonable people could differ as to the
meaning of the language used. Id.
In this case, Moons and Williams invite this court to adopt a broad
construction of the phrase arising out of the operation, maintenance, or use of
an uninsured vehicle in order to find coverage where the driver of an
uninsured vehicle shoots and injures an insured in another vehicle. They cite
cases from other jurisdictions, which have concluded that gunshot injuries resulting from a
vehicle chase or altercation arose from the operation, maintenance, or use of the
motor vehicle. See e.g., State Farm Mut. Auto Ins. Co. v. Davis,
937 F.2d 1415 (9th Cir. 1991) (holding that a shooting by an insured
while a passenger in his vehicle was covered under an insurance policy with
similar language); Quarles v. State Farm Mut. Auto. Ins. Co., 533 So.2d 809,
812 (Fla. Dist. Ct. App. 1988) (concluding that a significant causal connection existed
between vehicle use and the injury sustained by a pedestrian who was shot
when the vehicle owner removed a shot gun from the permanently attached gun
rack on his truck and the gun discharged); Cont. W. Ins. Co. v.
Klug, 415 N.W.2d 876, 878 (Minn. 1987) (holding that the assailants vehicle was
an active accessory because the assailant used it to position himself to shoot
the insured); Gen. Accident Ins. Co. of America v. Olivier, 574 A.2d 1240,
1242 (R.I. 1990) (finding a sufficient nexus existed between the injury and the
vehicle when a broad construction of uninsured motorist coverage was employed).
Conversely, State Farm relies upon cases holding that the vehicle is nothing more
than the site of the injury and the fact the assailant was in
a vehicle was incidental. State Farm asserts that these cases along with
the Indiana Supreme Courts construction of the phrase arising out of the ownership,
maintenance, or use of an automobile, support a narrow construction of the phrase.
See e.g., Ruiz v. Farmers Ins. Co. of Arizona, 865 P.2d 762,
764 (Ariz. 1993) (finding that contractual and statutory requirement that injury arise out
of the use of the uninsured vehicle was not met by showing that
injury arose while using an uninsured car not as a car, but as
a gun platform); State Farm Fire & Cas. Co. v. Rosenberg, 746 N.E.2d
35, 40 (Ill. App. Ct. 2001) (holding that injuries sustained by insured who
was kidnapped during theft of her vehicle, shot in car by uninsured assailant
while he was driving the stolen car, and then pushed her out of
moving car were not covered because injuries did not arise out of the
operation or use of the vehicle and the instrumentality of injury was the
gun); Curtis v. Birch, 448 N.E.2d 591, 595 (Ill. App. Ct. 1983) (affirming
dismissal of complaint filed on behalf of insured killed by shots of driver
of uninsured vehicle because instrumentality of injuries was a handgun and fact that
assailant was in the car at the time was merely incidental); Coleman v.
Sanford, 521 So. 2d 876 (Miss. 1988) (holding that the voluntary and deliberate
act of shooting the driver of another vehicle was an independent act which
rendered a vehicles use incidental); State Farm Mut. Auto Ins. Co. v. Whitehead,
988 S.W.2d 744 (Tex. 1999) (reasoning that the fact that a car is
the situs of an accident is insufficient to show the necessary nexus between
the use and the accident needed to conclude that the accident resulted from
the use of the vehicle).
Although there are cases on both sides of this issue from other jurisdictions,
whether the uninsured motorist provision of an automobile liability policy extends to cases
where an uninsured driver shoots and injures someone in another vehicle is a
matter of first impression in Indiana. The Indiana Supreme Court defined the
meaning of the phrase arising out of the ownership, maintenance, or use of
a vehicle in the context of injury occurring during the loading and unloading
of a vehicle. Ind. Lumbermans Mut. Ins. Co. v. Statesman Ins. Co.,
260 Ind. 32, 291 N.E.2d 897 (1973). In Lumbermans, the language was
contained in an omnibus clause of a commercial truck liability policy. A
delivery truck driver was injured when he moved a water softener into a
house and descended basement stairs which gave way and resulted in the driver
suffering injuries. Since the injured person claiming to be insured was not
a party to the insurance contract, our supreme court was not in a
situation where they had to construe the contract language any certain way and
[could] seek out the general intent from a neutral stance. Id. at
899. Our supreme court stated that the efficient and predominating cause
of the accident must arise out of the use of the vehicle in
order for an unnamed insured to be covered. Id. The court
Before there is coverage under a policy extending to loading and unloading, there
must be some connection between the use of the insured vehicle and the
injury, and unless the court can determine that the loading or unloading of
the vehicle was an efficient and producing cause of the injury, there is
no right of indemnity for the accident. In other words, liability of
an insurance company under the policy depends on the existence of a causal
relationship between the loading or unloading and the injury, and if the injury
was proximately due to the unloading, the insurance company is liable, while if
the accident had no connection with the loading or unloading there is no
Id. at 899 (emphasis added)(quoting 8 Blashfield, Automobile Law & Practice § 317.10
(1966)). Accordingly, in order to find coverage, there must be a causal
connection or relationship between the vehicle and the injury.
In this case, there was not a causal relationship shown between the vehicle
and the injuries sustained by Moons and Williams. The only evidence from
the designated affidavits indicated the vehicle was merely used to transport Keith to
the scene. Keith did not chase Moons and Williams in his car.
The shooting was not the result of road rage. The cars
did not touch. The facts of this case, as presented to us,
do not establish a causal relationship between the vehicle and the injuries sufficient
to invoke coverage under the uninsured motorist provision. We are not saying
that the facts here could not present a different picture, but based on
what was designated, we cannot speculate as to what precipitated this incident.
Had a more specific tie between the vehicle and the injuries been shown,
then the vehicle might have been more than the mere situs. Thus,
State Farm is not liable for Moons and Williams injuries under the uninsured
motorist provision of the insurance policy.
Moreover, although a causal connection must exist between the vehicle and the injury,
the relationship between the two must not be too remote:
It has been stated that the liability of an insurer under the ownership,
maintenance, or use provision should be measured in accord with the terms of
a policy as understood by a person of reasonable intelligence. The word
coverage as used in automobile liability policy means the sum of risks which
the policy covers. Ownership, maintenance, or use of the automobile need not
be the direct and efficient cause of the injury sustained. Rather, the
courts have only required that some form of causal relationship exist between the
insured vehicle and the accident. However, liability does not extend to results
distinctly remote, though within the line of causation.
6B John Alan Appleman & Jean Appleman, Insurance Law & Practice, § 4317
(Buckley ed. 1979)(emphasis added). In the present case, the vehicle from which
Keith shot only remotely contributed to the injuries by transporting Keith to the
scene and by containing Keith as he fired the shots.
In support of their arguments, both parties cite State Farm Mutual Automobile Insurance
Company v. Spotten, 610 N.E.2d 299, 300 (Ind. Ct. App. 1993), trans. denied.
Spotten was stopped at a traffic light when he noticed another vehicle
in the lane next to him. A passenger in the other vehicle
fired a shotgun into Spottens vehicle, hitting him and causing injury. He
filed a complaint against the driver and the passengers of the other vehicle.
He also filed a claim with State Farm pursuant to a provision
paying damages for bodily injury arising out of the operation, maintenance, or use
of an uninsured vehicle. State Farm intervened in Spottens action against the
driver and the passengers and moved for summary judgment. The trial court
denied the motion.
On appeal, we concluded that the contemplation of the parties to the insurance
contract was not ambiguous, given that the policy clearly limits damages to those
an insured is legally entitled to collect from the owner or driver of
an uninsured vehicle. Id. at 302. At trial, there was no
evidence regarding whether the driver intentionally aided the passenger, negligently allowed the passenger
with a gun in the vehicle, or had knowledge about the gun or
the passengers intent to fire it. Id. We gave the insurance
provision its plain meaning and held that [a] random act of violence by
a vehicle passengerwhich may or may not have been perpetrated with the acquiescence
of the driver/owneris not a risk reasonably contemplated by the parties and expressed
in the contract. Id. In other words, our opinion turned on
the fact that it was the passenger who was the shooter and not
the driver. We reached this conclusion without examining causation. Therefore, we
find that the reasoning of Spotten provides little guidance to us.
Finally, Moons and Williams argue that the doctrine of in pari materia requires
that we look to the criminal statutes to define the term use as
it appears in the statute specifying the provisions an insurer must make available
in each automobile liability policy. See Ind.Code § 27-7-5-2. Statutes relating
to the same general subject matter are in pari materia and should be
construed together so as to produce a harmonious statutory scheme. Indiana Payphone
Assn v. Inc. v. Indiana Bell Telephone Co., Inc., 690 N.E.2d 1195, 1199
(Ind. Ct. App. 1997), trans. denied. In this instance, the insurance statute
and the criminal statutes do not relate to the same subject matter.
Accordingly, we are unconvinced by this argument and decline the invitation to apply
in pari materia.
Therefore, we affirm the trial courts grant of summary judgment in favor of
ROBB, J., concurs.
RILEY, J., dissents with separate opinion.
COURT OF APPEALS OF INDIANA
SHARMEIKA MOONS and )
RANDY WILLIAMS, )
vs. ) No. 45A03-0102-CV-53
CALVIN KEITH and )
STATE FARM MUTUAL )
AUTOMOBILE INSURANCE )
JUDGE, Riley, dissenting
I respectfully dissent. The summary judgment record, read in favor of Moons
and Williams, established that the uninsured vehicle, being driven by Keith, approached the
car being driven by Williams. Keith drove up next to the passenger
side of the vehicle and because Williams car was blocked by another stopped
car, Williams was unable to drive away. Only because Keith was
able to drive his car next to the Williams car and use his
vehicle to position himself to fire shots, was he able to shoot at
his target. The use of Keiths uninsured vehicle due to its speed
and location were necessary and integral parts to the shooting. It also
allowed the shooter a quick and efficient escape after he had entrapped Williams
car behind the car in front of it. In my view, the
bullet wound injuries of Moons and Williams are inexorably bound to the shooters
use of the uninsured vehicle.
Indianas uninsured motorist statute requires that insurers make uninsured and underinsured motorist coverage
available to insureds in every automobile liability policy. Harden v. Monroe Guar.
Ins. Co., 626 N.E.2d 814, 818 (Ind. Ct. App. 1993), trans. denied.
Here, Williams policy includes an uninsured/underinsured benefit provision which defines an insured person
in relevant part as:
We will pay for damages for bodily injury an insured is legally entitled
to collect from the owner or driver of an uninsured motor vehicle.
The bodily injury must be caused by accident arising out of the operation,
maintenance or use of an uninsured motor vehicle.
If the insurance policy language is clear and unambiguous, courts give to that
language its plain and ordinary meaning and enforce the contract according to its
terms. Rice v. Meridian Ins. Co., 751 N.E.2d 685 (Ind. Ct. App.
Williams is entitled to coverage because he was injured as a result of
Keith using his uninsured motor vehicle in a manner that could only have
caused injury. Keith used the automobile to position himself to shoot Williams and
Moon. I find a specific tie between the vehicle and the injuries
to be more than a mere situs. I find that the use
of the vehicle was not passive but that Keith actively used the vehicle
to position himself to shoot the injured parties and to use the vehicle
in his escape. Cf. Protectice Ins. Co. v. Coca-Cola Bottling, 467 N.E.2d
786 (Ind. App. 1984), rehg. denied, trans. denied.
I would deny the summary judgment and remand for further proceedings.
We held oral argument in this case on August 24, 2001,
at the Lake County Superior Court in Hammond, Indiana as a part of
the Indiana Court of Appeals centennial celebration. We express our appreciation to
the Lake County Bar Association, the Womens Bar Association, the Hispanic Bar Association,
the Kimbrough Bar Association and Judge Diane Kavadias Schneider and her staff for
their hospitality. In addition, we thank the attorneys for the quality of