SAFECO INSURANCE COMPANY OF AMERICA, Plaintiff, and The Aetna Casualty and Surety Company, Intervenor, v. William A. SANDERS, as surviving parent and next of kin and in his capacity as Personal Representative of the Estate of Laura Lee Sanders, deceased; Tena Houghton, as surviving spouse and next of kin of Michael Houghton, deceased; Ashley Houghton, as surviving parent and next of kin of Michael Houghton, deceased, Defendants.
No. 73069.
Supreme Court of Oklahoma.
Dec. 4, 1990.
As Corrected Dec. 7, 1990.
799 P.2d 688
Jack Y. Goree, Goree, King, Rucker & Finnerty, Tulsa, for intervenor.
Greg A. Farrar, Farrar & Farrar, Tulsa, for defendant William A. Sanders.
R. Scott Savage and J. Randall Miller, Moyers, Martin, Santee, Imel & Tetrick, Tulsa, for defendants Tena Houghton and Ashley Houghton.
ALMA WILSON, Justice:
On the evening of October 6, 1987, Laura Lee Sanders and Michael Houghton were seated in a 1967 Oldsmobile Cutlass parked in a parking lot in the Brookside area on South Peoria Street in the City of Tulsa. They were approached and subdued through a show of force by Scott Allen Hain and Robert Wayne Lambert. Hain and Lambert forced Sanders to drive. After driving for a period of time, Sanders
From the parking lot, with Hain driving the car and Lambert driving Houghton‘s truck, they drove to an isolated area near Sapulpa, Oklahoma. Both vehicles were stopped. With Sanders and Houghton locked in the trunk, Hain and Lambert began cutting the fuel line of the car. Hain and Lambert completed cutting the fuel line, the fuel line was ignited, and the car burned. Hain and Lambert left the scene in Houghton‘s truck. Sanders and Houghton died as a result of thermal burns and smoke inhalation sustained while in the trunk of the car.
The 1967 Oldsmobile Cutlass was insured by Safeco Policy No. J 296000, purchased by William Sanders, father of Laura Lee Sanders. The policy provides $100,000/$300,000 uninsured motorist coverage. Houghton‘s 1985 Isuzu truck was insured by Aetna Policy No. 218SX2367168PCH.
Personal representatives of the insureds (insureds) submitted claims to Safeco Insurance Company of America (insurer) for uninsured motorist coverage for the deaths. Safeco denied the claims and filed this declaratory judgment action in the federal district court. The Aetna Casualty and Surety Company (insurer) was permitted to intervene in this action. Upon submission of proposed undisputed facts and legal authorities from the parties, the federal district court certified the relevant facts and four questions of law to this Court, pursuant to the
The certified questions present first impression issues as to whether loss (personal injury or death) is sufficiently related to
The four certified questions inquire as to the governing law and conclusions of fact. The governing law is set forth in answer to these questions. Inferences and conclusions to be drawn from the facts are matters to be determined by the trial court. Accordingly, the questions are answered, as follows:
1. Does the murder of Sanders and Houghton when they were murdered by being burned to death in the trunk of the automobile in question “arise out of the . . . use of a motor vehicle” as contemplated by
2. If the deaths arose out of the use of a motor vehicle, was there a causal connection between the use of the vehicle and the murders? Yes.
3. If the causal connection existed, do the acts of Hain and Lambert after the car was parked, constitute acts of independent significance to sever any causal link? Yes.
4. Were Hain and Lambert “operators of (an) uninsured motor vehicle” when they set the vehicle on fire and murdered Sanders and Houghton? No.
I.
INJURY RESULTING FROM A CHAIN OF EVENTS WHICH STARTS WITH THE USE OF A MOTOR VEHICLE AS THE DANGEROUS INSTRUMENTALITY ARISES OUT OF THE USE OF THE MOTOR VEHICLE.
The phrase “arising out of the ownership, maintenance or use of a motor vehicle” in
The pertinent parts of
(A) No policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be issued, delivered, renewed, or extended in this state with respect to a motor vehicle registered in this or principally garaged in this state unless the policy includes the coverage described in subsection (B) of this section.
(B) The policy referred to in subsection (A) of this section shall provide coverage therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles or hit-and-run motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom. Coverage shall not be less than the amounts or limits prescribed for bodily injury or death for a policy meeting the requirements of Section 7-204 of Title 47, Oklahoma Statutes, as the same may be hereafter amended. . . .
(Emphasis added.)
The legislative mandate of
As used in
In Mouse, while transporting a combine, the breather pipe on the combine lodged in the top of a bridge. The truck was stopped and Mouse was directed to climb upon the combine and dislodge the breather pipe. Mouse fell to the pavement and was seriously injured. In considering whether the truck was the mechanism that caused Mouse‘s injury, this Court said that in all reported cases where the cause of the injury was something physically attached to or immediately connected in some manner to the vehicle or its operation, the injury resulted from the use of the vehicle, even though some courts have adopted a broader definition. Upon examination of the chain of events, this Court concluded that the breather pipe, part of the vehicle within the contract, was the dangerous instrument that started the chain of events which resulted in Mouse‘s injury and therefore, Mouse‘s injury arose out of the use of the vehicle.
The Mouse chain of events test established the legal application of the phrase at the time it was first enacted by the Legislature.5 In Mouse, “arising out of the use of the vehicle” and “caused by” have synonymous import for purposes of liability insurance. However, the legislative mandate in
After thorough review of the case law in the various jurisdictions, we think the Mouse chain of events test remains appropriate for deciding whether the facts show that an injury arises out of the ownership, maintenance or use of a motor vehicle. The chain of events test is similar to tests fashioned by other jurisdictions in determining the meaning of the phrase as used
II.
USE OF AN UNINSURED MOTOR VEHICLE, WHICH IS RELATED TO ITS TRANSPORTATION NATURE AND WHICH RESULTS IN INJURY, IS CAUSALLY CONNECTED TO THE INJURY.
Causal connection between the use of a motor vehicle and personal injury within the context of “arising out of the ownership, maintenance or use of a motor vehicle” and within the context of “caused by accident” has been raised in a myriad of fact situations.7 Whether causal connection is examined within the confines of statutory language or insurance contract provisions, the courts agree that causal connection is a question of fact and, in an insurance controversy, the burden is less than proximate cause in a tort case.8
The insurers urge that UM coverage is limited to injury caused by the negligent and ordinary transportation use of the motor vehicle. We disagree,
The Legislature defined “motor vehicle” in the original enactment of
In Detweiler v. J.C. Penney Casualty Insurance Company, the Washington Supreme Court remanded for factfinding as to the affect of the movement of the truck when the insured was injured while shooting at his truck to stop the theft of his truck by an uninsured driver. In Alabama Farm Bureau Mutual Casualty Insurance Co. v. Mitchell, 373 So.2d 1129 (Ala.App.1979), the insured was beaten by her yard man, put into the trunk of her automobile, driven for some distance, then abandoned in the trunk of the automobile. The insured died from lack of food, water and oxygen. The court remanded the case for decision by the trier of facts on the issue of whether the death was caused by the use of the automobile.
And, in Casualty Reciprocal Exchange v. Waggoner Drilling Co., 340 P.2d 490 (Okla.1959), the facts established that the reassembly of a rig was within the contemplated “operation and use” clause in the insurance contract. In that case the vehicle was off-road and stationary and a wench on the vehicle was being used in the reassembly of a drilling rig. We held that “operation and use” included any use which had a proximate and necessary connection to the use of the vehicle and that the reassembly of the rig was within the “operation and use” clause, even though the statute mandating the coverage required liability insurance for the use or operation of a motor carrier upon the public highways.
Insurers contend that the use of the car was not related to transportation, but that it was merely the situs of the deaths which could have just as easily occurred outside the automobile. The automobile is far more than the mere situs in this case. It is the deadly instrumentality, according to the certified relevant facts. The authorities cited by insurers in support of this constrained argument are factually inapposite,10 yet they demonstrate the necessity of a two-prong causal connection test for determining uninsured motorist coverage.
In Gilbertson v. State Farm Mutual Automobile Insurance, the Plaintiffs sought compensation under the uninsured motorist provisions of their policy. Summary judgment in favor of the insurer was appealed to the Court of Appeals for the Tenth Circuit. The facts were that the tortfeasor was balancing a 51-pound rock on a ledge of an overpass when the rock fell onto the Plaintiffs’ truck as it travelled on the road below. The injury occurred in Oklahoma, but Minnesota law was applied as the insureds were residents of Minnesota and the policy was issued in Minnesota. The Minnesota statute expressly required insurance coverage for injury caused by the use of a motor vehicle as a vehicle.11 The Tenth Circuit acknowledged that in Minnesota the injury must arise out of the transportation use of a vehicle, citing Fire and Casualty Insurance Co. of Connecticut v. Illinois Farmers Insurance Co., 352 N.W.2d 798 (Minn.Ct.App.1984) and Haagenson v. National Farmers Union Prop-
The Minnesota “transportation purposes” rule was applied in a more recent decision of the court of appeals to include injury resulting from a gas fumes fire. In Strand v. Illinois Farmers Insurance Company, 429 N.W.2d 266 (Minn.App.1988), gasoline leaked from the involved car while it was housed in an enclosed garage overnight. The gasoline fumes were ignited by the flame in the water heater when the garage door was opened. The insured was in the garage at the time of the fire which resulted in injury to the insured. The Minnesota court found that the vehicle was an active accessory in causing the injury; that there was no intervening independent act which severed the causal link; and, the gasoline was clearly attributable to the use of the car for transportation purposes, thus the injury resulted from the use of the car for no-fault insurance purposes.
Similarly, the Hawaii Supreme Court held in favor of the insured in National Union Fire Insurance Company of Pittsburgh, Pa. v. Olson, 69 Haw. 559, 751 P.2d 666 (1988). The ambulance attendant was injured while lighting flares to guide the traffic on the highway. The court concluded that the injury arose out of the use of the a motor vehicle as the activity was reasonably calculated to protect the ambulance and related to the contemplated use purposes of the ambulance.
Causal connection between the injury to the insured and the use of a motor vehicle related to its transportation nature, thus use of the vehicle by an uninsured motorist, is a question of fact to be determined in each case. Accordingly, we hold that the use of an uninsured motor vehicle is causally connected to the injury, and the injury is within the mandated UM coverage of
III.
ACTS OF AN UNINSURED MOTORIST WHICH ARE NOT RELATED TO THE TRANSPORTATION NATURE OF A MOTOR VEHICLE AND WHICH RESULT IN INJURY TO THE INSURED CONSTITUTE ACTS OF INDEPENDENT SIGNIFICANCE TO SEVER THE CAUSAL CONNECTION BETWEEN THE USE OF A MOTOR VEHICLE AND THE INJURY.
The insurers, in support of denial of the UM claims, argue that the deaths were caused by independent, intervening criminal acts and neither the statute nor the insurance contracts provide coverage for death caused by intentional criminal acts. In response, the insureds assert that causal connection is not severed because the acts of the wrongdoers are intentional criminal acts and that the intent of the wrongdoers is irrelevant to UM coverage.
We agree with the insureds that neither the criminal nature of the wrongful acts nor the intent of the wrongdoers is an element in determining first-party UM coverage.12 The clear, plain mandate in
The third certified question, however, is whether the cutting of the fuel line and the igniting of the fuel by Hain and Lambert constituted acts of independent significance to sever the causal connection. If the evidence establishes that the acts of an uninsured motorist, which were related to the transportation nature of the motor vehicle, resulted in or contributed to the injury, then causal connection exists between the use of the vehicle by an uninsured motorist and the injury. However, if the evidence establishes that acts of an uninsured motorist, which were not related to the transportation nature of the motor vehicle, resulted in the injury and that the transportation use of the vehicle did not contribute to the injury, then any causal connection between the transportation use of a motor vehicle and the injury is interrupted and severed, such as in Gilbertson. Strict application of the rules of tort law is not required in deciding these causal connection fact issues in an insurance controversy between the UM insurer and its insureds.15
Under the facts certified to this Court, the acts of cutting the fuel line and igniting the fuel after the car was parked, which caused the car to burn, are so contrary to its transportation nature of the vehicle that, as a matter of law, these events are not related to its transportation nature and injury resulting therefrom is not within the UM coverage mandated by
IV.
OPERATOR OF AN UNINSURED MOTOR VEHICLE INCLUDES ANY PERSON WHO IS ENGAGED IN ACTIVITY RELATED TO THE TRANSPORTATION NATURE OF THE VEHICLE.
It is settled in this jurisdiction that a motor vehicle is uninsured when it is
Insurers contend that neither Hain nor Lambert was an operator at the time the car was burned, citing Heritage Insurance Company of America v. Phelan, 59 Ill.2d 389, 321 N.E.2d 257 (1974). The Phelan case stands for the proposition that whether one is an operator is determined by acts indicating intent to operate the motor vehicle. Relying upon authority from several jurisdictions, the Supreme Court of Illinois concluded that the driver of an automobile continued to be an operator of the vehicle while stopped at a service station. At the time of the injury, the driver was standing beside the vehicle assisting with the repair of a heater hose. The Illinois court reasoned that the temporary interruption in the actual driving of the automobile for the repairs necessary to the continuation of the driving did not terminate control of the driver over the vehicle and that the repair activities were so closely related to the driving so that the driver remained the operator.
In DeStefano v. Oregon Mutual Insurance Co., 762 P.2d 1123 (Utah App.1988), the Utah court examined the intent of the insured in determining his use of the vehicle at the time of the injury. The court concluded that the insured was “in, upon or entering into” as used in the statute and therefore occupying the vehicle where the insured was crushed between two cars when a third, uninsured car hit the second car, reasoning that the facts clearly established every intention of the insured to immediately resume his journey and was in the process of doing so at the time of the injury.
As stated previously,
CERTIFIED QUESTIONS OF LAW ANSWERED.
OPALA, V.C.J., and HODGES, DOOLIN and KAUGER, JJ., concur.
HARGRAVE, C.J., and LAVENDER, SIMMS and SUMMERS, JJ., concur in result.
SUMMERS, Justice, concurring in result:
The majority would answer the first three certified questions by adopting the “chain of events” test as discussed in Okla. Farm Bureau Mut. Ins. Co. v. Mouse, 268 P.2d 886 (Okla.1954). I view that test as too broad, and I would define the appropriate standard to be the “causal connection” test, as discussed in my concurring in part/dissenting in part opinion in Willard v. Kelley, P.2d (Okla.1990). Instead of holding that an injury “arises out of the use” of a vehicle any time a vehicle is the dangerous instrument that starts the chain of events which leads to the injury, I would simply require that there be a causal connection between the inherent use of the vehicle and the injury.
Rather than rely on “acts of independent significance” to sever the chain of events as the majority does, I would simply hold that as a matter of law the murders were not causally connected to the inherent use of the vehicle. While both rationales reach the same conclusion, the latter more narrowly defines the applicable test. This construction would allow for consideration of the contracting parties intent, while recognizing that a link between the vehicle and the injury must exist. Sciascia v. Am. Ins. Co., 183 N.J.Super. 352, 443 A.2d 1118, 1122 (1982).
Here, the felonious deeds of Hain and Lambert accomplished the murders. The deaths did not arise out of the inherent use of the vehicle. Automobiles are for locomotion, not for imprisonment nor criminal incineration. Thus, while I agree that the U.M. carrier cannot be held liable, I do so for the reason that there is no causal connection between these tragic deaths and the inherent use of the vehicle.
As for the remaining questions, the view asserted here as to the first question makes it unnecessary to address them. It is immaterial whether there was an act of “independent significance,” or whether the perpetrators of the crime were considered “operators” of the vehicle. Under any answers to those questions the insurer is simply not liable under the uninsured motorist provision, and that is because the deaths did not arise out of the inherent use of the vehicle.
I am authorized to state that Justice LAVENDER and Justice SIMMS join in these views.
Notes
AN ACT RELATING TO INSURANCE; REQUIRING THAT AN “UNINSURED MOTORIST CLAUSE” BE CONTAINED IN EVERY AUTOMOBILE LIABILITY INSURANCE POLICY; PRESCRIBING THE LIMITS OF LIABILITY OF SUCH COVERAGE; PROVIDING FOR AN INSOLVENCY CLAUSE; PROVIDING EXCEPTIONS; DEFINING TERMS; ESTABLISHING AN EFFECTIVE DATE FOR THIS ACT; DIRECTING CODIFICATION; PROVIDING FOR SEVERABILITY OF THE ACT; AND REPEALING CONFLICTING LAWS.
The title to the most recent bill amending the statute, 1990 Okla.Sess.Laws, ch. 297, § 4, states in part, . . . AMENDING