Colonial Insurance Company of California (“Colonial”) brought a declaratory judgment action against Stanley F. Castleberry, its insured on a policy of automobile liability insurance, James Stacy Lumpkin, Lowell Dan Hiers, and Georgia Farm Bureau Mutual Insurance Company, the uninsured motorist carrier. Colonial seeks a declaration that the terms of the policy it issued to Castleberry do not obligate it to pay any sums which its insured might be obligated to pay as damages arising out of an injury to Lumpkin on January 10, 1990. Both Colonial and Lumpkin filed motions for summary judgment. The trial court denied both motions and certified both orders for immediate review. We granted Colonial’s application for an interlocutory appeal and Lumpkin filed a cross-appeal.
The facts material to this appeal are not in dispute. On the eve *377 ning of January 10, 1990, Castleberry, Lumpkin, Hiers, and Steve Meadows were riding around in Castleberry’s Chevrolet Blazer drinking beer. Castleberry customarily kept a pistol in the Blazer. After a while, Castleberry stopped his vehicle on a dirt road and exited the vehicle. While Castleberry was outside the vehicle and the vehicle was stationary, Hiers, still inside the vehicle, was handling Castleberry’s pistol and the pistol discharged, accidentally injuring Lumpkin.
Colonial contends Lumpkin’s injury did not arise out of the ownership, maintenance or use of the Blazer it insured, and therefore the trial court erred in denying its motion for summary judgment. When reviewing the denial of a motion for summary judgment, we must determine whether any genuine issues of material fact remain and whether the party moving for summary judgment is entitled to judgment as a matter of law. Since the facts material to these appeals are undisputed, the only remaining issue is whether either Colonial or Lumpkin is entitled to judgment as a matter of law.
Castleberry’s policy covered injuries “arising out of the ownership, maintenance or use” of the insured vehicle. This language is typical of automobile liability insurance policies. See generally Annotation, Automobile Liability Insurance: What are Accidents or Injuries “Arising out of Ownership, Maintenance, or Use” of Insured Vehicle, 15 ALR4th 10, 15 (1982). As the Supreme Court of Alaska recognized in
Criterion Ins. Co. v. Velthouse,
Our holding that there is no causal connection between the accidental shooting in this case and the use of the vehicle in which the shooting occurred is also consistent with decisions involving similar circumstances from other states. See, e.g.,
Velthouse,
supra (in which no coverage was found when the insured, while “horsing around” with friends, picked up a loaded shotgun in his vehicle and pointed it at one of his friends and the gun accidentally discharged injuring the insured’s friend);
National Family Ins. Co. v. Boyer,
In support of his position that he, and not Colonial, is entitled to summary judgment, Lumpkin relies heavily upon our decision in
Payne v. Southern Guaranty Ins. Co.,
Lumpkin also argues that because the insured vehicle was being used to transport passengers and a gun, a natural and reasonable risk arose that injuries would result from an accidental discharge of the gun within the confines of the car. Even if we interpreted the term “use” in the policy to include use as a moving receptacle for a firearm,
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there would still be no causal connection between that use and Lumpkin’s injuries under the facts of this case. Lumpkin’s injury resulted solely from Hiers’ negligent use of the gun, not from the use of the vehicle as a receptacle for the gun. Cf.
Southeastern Fidelity Ins. Co. v. Stevens,
Because Lumpkin’s injuries did not arise out of the operation, maintenance or use of the insured vehicle, the trial court erred in denying Colonial’s motion for summary judgment. The trial court, however, properly denied Lumpkin’s motion for summary judgment.
On Motion for Reconsideration.
On motion for reconsideration, Lumpkin urges us to hold that the facts of this case fall into the category of cases in which the discharge occurs during loading and unloading of the vehicle. In support of this argument, Lumpkin relies upon a fact that is disputed in this case, Hiers’ reason for handling the pistol at the time it accidentally discharged injuring Lumpkin. Hiers and Meadows, another occupant of the vehicle, testified during their depositions that Hiers was attempting to hand the gun to Lumpkin at the time the gun discharged. Lumpkin testified that Hiers was attempting to exit the back seat and when he pushed the seat forward the gun discharged injuring him. During Hiers’ deposition he testified that on the night of the shooting, he and the two other occupants of the vehicle who were not injured decided to tell the people at the hospital that they saw a rabbit and when they attempted to get out of the vehicle to shoot the rabbit the gun went off.
We hold the trial court erred by denying Colonial’s motion for summary judgment regardless of whether Hiers was attempting to exit the vehicle at the time the gun discharged. As we noted in our original opinion in this case, generally courts extend coverage for injuries occurring when the discharge occurs during the loading and unloading process. However, courts have applied a common sense analysis to determine whether coverage is appropriate under the circumstances. When the vehicle is being used for a legitimate purpose (generally hunting) and the accident arises from loading or unloading weapons from the vehicle, most courts have held the accident was covered under the automobile liability insurance policy. See, e.g.,
Laviana v. Shelby Mut. Ins. Co.,
224 FSupp. 563 (D. Vt. 1963) (while on a hunting trip, occupants of vehicle thought they spotted a deer and as passenger attempted to unload his gun before reentering the vehicle, the gun accidentally discharged striking the driver);
Allstate
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Ins. Co. v. Valdez,
190 FSupp. 893 (E. D. Mich. 1961) (while a hunter attempted to unload his gun before placing it in the vehicle, he slipped and the gun discharged killing another hunter seated inside the vehicle);
Toler v. Country Mut. Ins. Co.,
We find persuasive the reasoning of Tolleson v. State Farm Fire &c. Co., 449 S2d 105 (La. App. 1st Cir. 1984). In that case, three young men were loading guns into a vehicle for a hunting trip. During the loading process, the topic turned to bank robbery. During that conversation, one man pointed a gun at another and pulled the trigger. The Louisiana Appeals Court applied what it termed a “common sense approach” to deny coverage. Although the men were loading their weapons for the purpose of hunting the court found the accident was caused by horseplay. See also Bruno v. Hartford Accident &c. Co., 337 S2d 241 (La. App. 3d 1976).
When a common sense analysis is applied to the facts of this case, we must hold the trial court erred in denying Colonial’s motion for summary judgment. As we discussed above, the vehicle was being used to “ride around,” rather than for hunting. The use of the vehicle did not take on the nature of a hunting trip just because Hiers allegedly might have seen a rabbit. If Hiers was attempting to exit the vehicle to shoot a rabbit, he would have been exiting the vehicle for an illegal purpose since OCGA § 27-3-2 prohibits hunting at night any game bird or game animal in this state except for raccoons, opossums, foxes, and bobcats. Whether Hiers was attempting to exit the vehicle or to hand the gun to Lumpkin at the time the pistol accidentally discharged, the accident arose from Hiers’ negligent handling of the gun.
Accordingly, we deny Lumpkin’s motion for reconsideration.
Notes
The remaining four categories are: (1) discharges which occur while loading or unloading the vehicle (generally courts extend coverage in liability policies to cover the loading and unloading process); (2) the use of a vehicle as a “gun rest” (the courts of the various jurisdictions are divided concerning coverage); (3) accidents involving mounted gun racks in vehicles (generally courts extend coverage in liability policies to cover accidental discharges occurring when the gun is being removed or replaced on the gun rack); and (4) discharges caused by movement of the vehicle, usually when the vehicle hits a bump in the road (courts have had little trouble finding the requisite causal connection in these cases).