ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
FREDERICK N. HADLEY JOHN C. TRIMBLE
Indianapolis, Indiana Indianapolis, Indiana
ROBERT R. FOOS, JR.
IN THE COURT OF APPEALS OF INDIANA
JAMES SIZEMORE, a minor, and ) JENNIFER LEAR, his mother and next friend, ) ) Appellant-Counterplaintiffs, ) ) vs. ) No. 41A01-0211-CV-443 ) ERIE INSURANCE EXCHANGE, ) ) Appellee-Counterclaimant. )
APPEAL FROM THE JOHNSON SUPERIOR COURT
The Honorable Kevin M. Barton, Judge
Cause No. 41D01-0105-CT-170
JUNE 17, 2003
OPINION - FOR PUBLICATION
HOFFMAN, Senior Judge
Appellants App. A-8.
See footnote The trial court found that the incident in which
Sizemore received his injuries could not be construed as a motor vehicle accident
and that there was no causal connection between the incident and the use
or operation of a motor vehicle. Appellants App. A-13.
Appellants contend that the trial court erred by finding that there was no causal connection between the use or operation of the car and the discharge of the paintball gun. They contend that the discharge was set off by the physical contact with the automobiles headrest and that only that minimal contact is necessary to establish a causal connection.
In State Farm Mut. Auto. Ins. Co. v. Spotten, 610 N.E.2d 299 (Ind. Ct. App. 1993), Spotten was stopped at a traffic light when a passenger in the other vehicle fired numerous shots into Spottens vehicle injuring him. Spotten filed a complaint against the driver and the passengers of the other vehicle and pursued a claim with his own insurance company under a section of the policy. The language of that policy was as follows:
We 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.
The policy clearly limited the damages to those an insured is legally entitled
to collect from the owner or driver of an uninsured vehicle. We
concluded that since there was no evidence that 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, that a
random act of violence by a vehicle passenger is not a risk reasonably
contemplated by the parties to the insurance contract. 610 N.E.2d at 302.
Further, in Moons v. Keith, 758 N.E.2d 960 (Ind. Ct. App. 2001), Williams and the occupants of his vehicle were injured when Keith positioned his vehicle beside Williams vehicle and fired numerous shots into the car. Williams pursued uninsured motorist benefits from his insurer. The provision in his policy read as follows:
We 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.
We relied upon the supreme courts definition of the meaning of the phrase
arising out of the ownership, maintenance, or use of a vehicle provided in
Indiana Lumbermens Mut. Ins. Co. v. Statesman Ins. Co., 260 Ind. 32, 291
N.E.2d 897 (1973), in resolving the appeal. The 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.
291 N.E.2d at 899. Further, we held that in order to
find coverage, there must be a causal connection or relationship between the vehicle
and the injury. Moons, 758 N.E.2d at 964. However, the causal
connection between the two must not be too remote. Id.
In the present case, the trial court found that there was no causal connection between the accident and the use or operation of Zachs vehicle. Appellants App. A-13. The undisputed facts established that the only connection between the vehicle and the injury was that the vehicle happened to be the physical object against which the safety of the paintball gun may have come in contact. The trial court correctly determined that the efficient and predominating cause of Sizemores injury did not arise out of the use of the vehicle. The vehicle only remotely contributed to Sizemores injury by transporting the boys and the paintball equipment to the scene of the incident and by possibly coming into physical contact with the safety of the paintball gun prior to the gun discharging.
Appellants have cited to cases that are factually similar from other jurisdictions in which coverage was found to exist. However, we decline to follow those cases. This court has already chosen to follow a more restrictive approach in determining whether an incident involving the discharge of a firearm from inside a motor vehicle causing bodily injury to another involves the use of a motor vehicle for insurance coverage purposes. See e.g., Moons, 758 N.E.2d at 964; Spotten, 610 N.E.2d at 302.
In addition, the present case involves insurance policy language that itself is more restrictive than that of Moons and Spotten. The insurance policy in the present case provides coverage for bodily injury and property damage from the owner or operator of an uninsured motor vehicle resulting from a motor vehicle accident. Appellants App. A-12. The trial court correctly found that the incident leading up to Sizemores injury was not a motor vehicle accident. Appellants App. p. A-13. Therefore, even if we assumed, for the sake of argument, that the physical contact between the paintball gun safety and the seat of the car did arise out of the use of the motor vehicle, the damages did not result from a motor vehicle accident.
Appellants have failed to establish that the trial courts decision to grant Eries motion for summary judgment was erroneous.
NAJAM, J., and BARNES, J., concur.