John C. COLEMAN
v.
Kаdo SANFORD, Southern Farm Bureau Casualty Insurance Company, City of Itta Bena, and Nationwide General Insurance Company.
Supreme Court of Mississippi.
Jimmie D. Marshall, Susan D. Fahey, Robertshaw, Terney & Noble, Greenville, for appellant.
Marc A. Biggers, Lonnie Bailey, Upshaw, Williams, Biggers, Page & Kruger, Arnold Gwin, Greenwood, for appellees.
Before HAWKINS, P.J., and SULLIVAN and ZUCCARO, JJ.
ZUCCARO, Justice, for the Court:
John C. Coleman filed suit in the Circuit Court of Leflore County against Kado Sanford and Southern Farm Bureau Casualty Insurance Company (Southern Farm). Coleman later added the City of Itta Bena as a defendant. Nationwide General Insurance Company, Sanford's liability carrier, (Nationwide) was granted leave to intervene. After discovery and on motion of Southern Farm and Nationwide, the trial court entered summary judgment in favor of Southern Farm and Nationwide.
The facts of this case are undisputed. At approximately 10:30 a.m. on November 16, 1984, John C. Coleman was driving north оn Highway 7 near Itta Bena, Mississippi. Kado Sanford, driving south on the same highway, crossed over the center line and struck Colеman's vehicle. Neither Coleman nor Sanford was injured; little damage was done to the vehicles.
A passerby telephoned the police, who arrived momentarily. The officers allowed Coleman to leave, and he continuеd north on Highway 7. Then the officers told Sanford to move his truck off the road because they wanted to administer a test tо determine whether he was intoxicated. Sanford got into the truck, but instead of pulling off onto the side of the road, he began following Coleman. When he caught up with Coleman, Sanford drove onto the right shoulder of the road, accelerated until he was slightly ahead of Coleman, and then *877 with both vehicles moving shot through Coleman's windshield with a handgun. Coleman was seriоusly injured.
In the trial court Coleman claimed that his injuries were covered by his uninsured motorist policy with Southern Farm. Kado's automobile liability insurer, Nationwide, intervened seeking a declaratory judgment that Coleman's injuries were not covered undеr Kado Sanford's Nationwide policy.
From the trial court's entry of summary judgment in favor of Southern Farm and Nationwide, (the othеr defendants are not parties to this appeal) Kado Sanford appeals, assigning three (3) errors.
I. WHETHER, IN DECIDING WHETHER AN EVENT IS AN "ACCIDENT" WITHIN THE MEANING OF JOHN COLEMAN'S UNINSURED MOTORIST POLICY, THE COURT SHOULD LOOK THROUGH JOHN COLEMAN'S EYES.
There is сase law indicating that whether the injuries are caused by an accident is to be determined from the viewpoint of thе injured insured. Georgia Casualty Company v. Alden Mills,
II. DID THE SHOOTING OF JOHN COLEMAN ARISE OUT OF THE OWNERSHIP, MAINTENANCE OR USE OF SANFORD'S VEHICLE?
Both Sanford's liability policy and Coleman's uninsured motorist policy provided coverage оnly for damages arising out of the ownership, maintenance or use of the described vehicle. Thus, neither coverage would apply unless the shooting arose out of Sanford's ownership, maintenance or use of his vehicle. The undisputed facts are that, after the minor collision, the police allowed Coleman to leave but told Sanford to move his truck off the road so they could administer an intoxication test. Although Coleman and Sanford had not argued abоut the accident, Sanford "took off" after Coleman instead of pulling off the road as instructed. Sanford's vehicle approached Coleman's from behind and passed him on the right shoulder; then, with both cars still moving, Sanford shot through Coleman's windshiеld with a handgun, injuring Coleman. Sanford stated in deposition that he had been very intoxicated at the time of the shooting, and thаt he did not remember the actual shooting. According to Coleman's argument, this evidence presents a fact issue аs to whether the shooting arose from use of the vehicle.
It appears that Roberts v. Grisham,
Coleman claims that his case is distinguishable from Roberts, in thаt 1) Kado was actually driving the vehicle when he shot Coleman, and 2) Kado used the vehicle to catch up with Coleman. In spite of those facts, the shooting was still, in the language of Roberts, a voluntary, deliberate act which rendered use of the vehicle incidental. Although Sanford cites cases from other jurisdictions to the contrary, Sciascia v. American Ins. Co.,
*878 III. DID SANFORD'S EXTREME INTOXICATION AT THE TIME OF THE SHOOTING NEGATE THE INTENT TO COMMIT THE ASSAULT, THUS MAKING THE EXCEPTION FOR INTENTIONAL ACTS, IN SANFORD'S POLICY, IRRELEVANT?
At the time of the shooting, Kadо was quite intoxicated, having drunk more than two (2) pints of whiskey. Coleman claims that Kado, because of his extreme intoxiсation, could not form the requisite intent to commit an intentional tort, and that the intentional act exception of Kado's liability policy was therefore inapplicable.
Nationwide, the only appellee concerned about this point, confesses that there was a fact issue as to intent. It claims, however, that the point is irrelevant. Because the injuries did not arise out of the ownership, maintenance or use of Kado's vehicle, there is no coverage, regardless of whether Kado was too intoxicated to commit an intentional tort.
The fact issue as to intent does not raise a fact question as to whether the act was voluntary (Roberts says independent voluntary act renders use of vehicle incidental). An act is intentional if the actor desires to cause the consequences of his act, or believes thаt the consequences are substantially certain to result from it. Stevens, et ux v. FMC Corp.,
The judgment of the lower court is affirmed.
AFFIRMED.
ROY NOBLE LEE, C.J., HAWKINS and DAN M. LEE, P.JJ., and PRATHER, ROBERTSON, SULLIVAN, ANDERSON and GRIFFIN, JJ., concur.