George Ray WILLARD and Carol Willard, husband and wife, Plaintiffs-Appellees, v. Mark Wesley KELLEY, Defendant, and Prudential Property and Casualty Insurance Co., Defendant-Appellant.
No. 69347.
Supreme Court of Oklahoma.
Dec. 4, 1990.
The order is reversed with directions to rule that the Board‘s MAY determination—a product of the agency‘s adjudicative process—was not reviewable in a § 306 proceeding.
THE ORDER IS REVERSED WITH DIRECTIONS TO DENY THE DECLARATORY RELIEF SOUGHT.
HARGRAVE, C.J., and HODGES, LAVENDER, DOOLIN, ALMA WILSON and SUMMERS, JJ., concur.
KAUGER, J., concurs in result.
SIMMS, J., recused.
opinion on the manner and extent of notice-giving in proceedings under
John A. Gladd, Gibbon, Gladd & Associates, P.A., Tulsa, for appellant.
OPALA, Vice Chief Justice.
On affirmance of summary judgment for the insured, the insurer urges on certiorari that the evidentiary materials in the record support but a single inference—that the harm for whiсh recovery is sought did not “arise out of the use of an uninsured automobile.” Although we reject the insurer‘s proposition, we reverse the summary judgment and remand this cause for trial.
I.
ANATOMY OF LITIGATION
A.
The facts affecting the claim
While on patrol, police officer George Ray Willard spotted a vehicle driven by
B.
The case before the trial court
Willard and his wife, Carol, [collectively called insured] sued both Kelley and their personal automobile insurance carrier, Prudential Property and Casualty Insurance Co. (insurer or Prudential). From the latter they sought to recover the limits of the policy‘s uninsured motorist (UM) coverage for bodily injuries sustained in the shooting incident. Willard alone pressed for recovery under the medical payments coverage.1 Without affecting any issue in controversy between Prudential and its insured, default judgment was taken against Kelley, and, since the latter did not appeal, that judgment now stands as final.
The remaining parties in the lawsuit (the insured and insurer) stipulated to these facts: 1) at the time of the shooting Kelley was an uninsured/underinsured motorist within the meaning of the UM statute,
Each party sought summary judgment. The insurer argued that coverage is afforded neither by the UM statute nor by the insurance policy, which contains the following provision:
“[Insurer is obligated] [t]o pay all sums which the insured ... shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury ... sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile....” (Emphasis added.)
Prudential maintained that, as a matter of law, Kelley‘s act of shooting from an automobile does not constitute a “use” which gives rise to UM liability within the meaning of the quoted policy language. The insured, on the other hand, urged that the injurious event should be viewed as an “accident” stemming from Kelley‘s “continuous and uninterrupted” operation and use of an uninsured vehicle. The policy does not define the term “accident.”
Prudential‘s refusal to pay Willard under the medical payments coverage appears to have been rested on the following policy provision which obligates the company
“[t]o pay all reasonable expenses incurred within one year from the date of
accident for necessary medical, surgical, X-ray and dental services ...
* * * To or for the named insured ... who sustains bodily injury ... caused by accident,
* * *
“(b) while occupying a non-owned automobile, but only if such person has the permission of the owner to use the automobile and the use is within the scope of such permission....” (Emphasis added.)
The trial court gave summary judgment to the insured and found 1) the injurious episode “was an accident which arose out of the use of an uninsured automobile” and 2) the insured is entitled to recover under the UM and medical payments provisions of the policy.3
C.
The issues in the Court of Appeals
According to the insurer‘s brief-in-chief, the UM protection Willard invokes in this case is neither mandated by
The insured urged that the trial court correctly characterized the shooting incident as an accident which arose out of the gunman‘s (Kelley‘s) use of аn automobile. In support of medical payments coverage, Willard relied on the policy‘s own definition of the term “occupying.” Since it expressly includes “alighting from” an automobile, which, he contended, is what he was doing when Kelley opened fire, his presence “outside” the vehicle does not preclude recovery.
The Court of Appeals held that when considering insurance coverage, “the automobile need not be the proximate cause of the accident, but the broader requirement of causal relationship or connection is the appropriate test.” Concluding that the insured‘s loss arose from the use of an uninsured car, the appellate court reasoned that Kelley‘s vehicle “was the causal relationship or connection between Kelley‘s actions and Willard‘s injuries.” On the question of medical payments coverage, the court accepted Willard‘s proposition and affirmed the decision allowing recovery.
D.
The issues on certiorari
Prudential urges on certiorari that both the Court of Appeals and the trial court erroneously concluded as a matter of law that Willard‘s injuries arose from Kelley‘s use of the car. The essence of Prudential‘s position is that Willard‘s injuries arose from the use of a firearm which is not a “natural and reasonable consequence” of a vehicle‘s use; the gunman‘s criminal act (of shooting Willard) “intervened” between the vehicle‘s use as a means of escape and Willard‘s gunshot wounds. Based on the “same arguments” against Willard‘s quest for UM protection, the insurer views medical payments coverage as equally unavailable.
The insured‘s response to the certiorari petition seeks to provide a cogent foundation for the Court of Appeals’ opinion and reasserts what the trial court, the Court of Appeals and the insurer all have concurred in: that the evidentiary materials tendered in the summary judgment process show that no material fact issues remain to be tried and that resolution of this claim hinges solely оn a question of law. We reject
II.
THE INSURED‘S QUEST FOR UM RECOVERY
It is not contested that the insured‘s injuries, to be redressible, must have been 1) caused by an accident and 2) arisen out of the use of an automobile. These elements are the sine qua non of the UM claim at bar, and, for reasons to be explained, both are inextricably intertwined. We must hence address each of them as they relate to the instant case.5
A.
The automobile policy requirement that the harm to be indemnified be one caused by an accident
The insured had argued that the question whether an accident has occurred should be answered by assessing the harm-dealing event from his standpoint. Although the trial court specifically found that Willard‘s injuries were caused by an accident, the record is silent as to how the fact finding process was shaped.
The judicial approach of gauging the character of an injurious event from the insured‘s standpoint is not new to American jurisprudence. In cases where recovery was sought on a policy insuring against accidental death or injury, the terms “accident” or “accidental” have long been held to describe an occurrence which
While public liability insurance generally does not protect the insured who intentionally inflicts harm upon anoth-
Considering all the so-called “undisputed facts,” along with the stipulations and surrounding circumstances of this case, we must conclude that reasonable minds may differ as to whether Willard expected or should have expected to be fired upon and seriously injured by the gunman. Nothing tendered in the summary judgment process sheds direct light on the foreseeability factor. Although the evidentiary materials appear to describe basically what happened, the record is inconclusive as to Willard‘s state of mind when, while carrying out his duties as a police officer, he pursued Kelley and eventually met him face to face. For instance, the trier might view the facts as indicating Willard assumed the risk of a fight or confrontation without voluntarily assuming or exposing himself to the risk of serious bodily injury or death.12 The insured‘s course of conduct, when measured by the evidentiary material in the record, is hence subject to different assessments; the issue remains one for the jury.13
B.
The requisite connection between the insured‘s injury and the gunman‘s use of an uninsured vehicle
Willard‘s UM policy covers injuries “caused by accident” and “arising out of the ownership, maintenance or use” of an uninsured automobile.14 (Emphasis added.) Since the latter element of this UM claim contemplates a factual inquiry into the causal relationship15 between the in-
The record reveals 1) Kelley rested his gun on the car‘s “window sill” as he opened fire; 2) Kelley remained in the car at all pertinent times; 3) during the shooting, the getaway car may not have been in motion, but it was in a transportation mode (engine running and in gear); 4) Kelley left the scene by driving away. From these facts a jury might infer that the act of shooting was designed to facilitate Kelley‘s escape, impede Willard‘s pursuit, either or both. Although when Kelley shot at Willard the car was not being used as a moving vehicle, the trier might nonetheless conclude that the shooting was related to Kelley‘s use of the car as a means of getaway and to retard Willard‘s pursuit. UM-covered use is limited neither to the car‘s driving operation nor to the lawfulness of the use.
If, for instance, during the chase Kelley, instead of firing a gun, had thrown a large object out of the car and into Willard‘s path, сausing him to crash, there would be little doubt that whatever had been thrown from the car facilitated a getaway in the car and thus may be deemed to have arisen from the car‘s use as a means to accomplish the desired escape. Similarly here, a jury may view the uninsured automobile‘s use as incidental to the pursuit of a car-aided effort to prevent Willard‘s apprehension of Kelley.
In sum, the purpose of the gun‘s use might be viewed by the trier as identical to that for which the car was used—to impede Willard‘s pursuit and to facilitate Kelley‘s effective getaway. If the gun use and the car use are found to be inextricably connected in purpose, the trier could conclude that a causal connection exists between the gunshot wound and the vehicle‘s use.17 For reasons to be stated the yet-to-be-determined foreseeability issue must also be included in the inquiry into the shooting‘s causal nexus to Kelley‘s use of the car.18
In a case of ordinary negligence a defendant may seek to avoid liability with proof that an intervening force, which directly caused the injury, is also the proximate cause. The foreseeability of the intervening force will determine whether the chain of causation between the defendant‘s negligence and the injury is to be deemed broken. If the intervening force was foreseeable (or should have been anticipated), then the defendant‘s original negligence remains the proximate cause of the injury. On the other hand, if an unforeseen, unexpected and independent happening directly causes the injury, then the causal link between the original negligence and the resulting harm is deemed broken and the initial actor is thus insulated from liability.19
III.
WILLARD‘S QUEST FOR MEDICAL PAYMENTS COVERAGE
The question here to be answered is whether, at the time of injury, Willard was occupying his patrol car within the meaning of his policy‘s medical payments provisions. We hold that he was.24
While the parties agree Willard had stepped out of the driver‘s seat when Kelley started shooting, the term “occupying” does include “alighting from” and “entering into” an automobile. Willard was shot immediately after he alighted from his seat, and poised himself for a face to face encounter with Kelley. According to Wil-
Under these unique facts we hold that the policy‘s definition of “occupying” is broad enough to include Willard.25 When first shot, he either was in the process of alighting from his vehicle or never actually left it. Upon being hit by the subsequently fired bullets, Willard was “entering” the car. We nonetheless express no opinion on whether Willard may ultimately recover under his medical payments coverage since the fact question whether his harm was “caused by accident” remains unresolved.
IV.
THE EVIDENTIARY PROBLEM AND THE LEGAL EFFECT, IF ANY, OF KELLEY‘S CONVICTION
Although the insured had conceded almost every “undisputed” fact relied on by
On this record it is apparent that Prudential attempted to use the criminal conviction to show that Willard‘s injuries arose purely from the commission of a crime rather than from acts that are interconnected with, or reasonably related to, the use of an automobile. The insurer had tendered a copy of the appearance docket in Kelley‘s criminal case to show he had been charged, tried and convicted of intentionally shooting to kill the insured.26 Although Kelley‘s
At common law judgments of conviction were inadmissible in a civil suit as proof of the facts essential to the criminal adjudication.27 That legal norm now stands abrogated by the terms of the Evidence Code,28
A trial judge, if called upon to do so, may take judicial notice of any record in the court on which he (or she) sits. When a case, pending or concluded in thаt court, is called to his attention and identified by number and style, a conviction cannot be proved by an appearance docket alone. It must be established by competent evidence31—i.e., the judgment roll.32 Prudential may have done enough to benefit from judicial notice by tendering below a copy of the appearance docket in Kelley‘s criminal case, but, on this appellate record, the conviction has not been proved by the law‘s acceptable method.
CERTIORARI IS GRANTED; THE COURT OF APPEALS’ OPINION IS VACATED; THE TRIAL COURT‘S SUMMARY JUDGMENT AGAINST THE INSUR-
HARGRAVE, C.J., and HODGES, DOOLIN, ALMA WILSON and KAUGER, JJ., concur.
LAVENDER and SUMMERS, JJ., concur in part and dissent in part.
SIMMS, J., dissents.
SIMMS, Justice, dissenting:
I concur with the views expressed by Justice Summers insofar as he dissents from the majority decision, however, for the same reasons expressed therein I would also hold the medical payment provisions are inapplicable to this situation.
I agree with Prudential‘s argument that it was entitled to judgment as a matter of law. Coverage of this shooting incident was not afforded by either the terms of
SUMMERS, Justice, concurring in part and dissenting in part:
The question is whether summary judgment for plaintiffs was proper. The trial court granted summary judgment, holding that the plaintiffs were entitled to insurance coverage both under the uninsured motorist and medical payment provisions. As to the medical payments coverage I can concur with the majority. As to the uninsured motorist coverage the majority holds that whether or not the shooting was accidental, from the policeman‘s vantage point, is a material fact in dispute. As I view it the insured is not entitled to recovery unless he can show that the injury was accidental and that the injury arose out of the use of an uninsured vehicle. I must respectfully dissent because I believe as a matter of law that the injury did not arise out of the use of the vehicle. The question of whether the injury was “accidental” is purely academic, and its resolution is not necessary to the correct disposition of this case.
Prudential urges that uninsured motorist coverage should be denied and summary judgment should be granted in its favor because, as a matter of law, the shooting of Willard did not arise out of the use of the vehicle. Generally, when addressing the question of “use,” courts apply the “causal connection” test. See annotation, 15 ALR4th 10 (1982). A causal connection does not require proximate cause in the strict legal sense, nor does it require an inquiry into the intent of either party at the time of the accident. Rather, it requires that the “vehicle be more than the mere situs of the accident and that the use of the vehicle relate to its inherent use as a motor vehicle.” Criterion Ins. Co. v. Velthouse, 751 P.2d 1, 3 (Alaska 1986). This term has also been defined as mandating that the accident arise out of the inherent purpose of the vehicle. Tomlin v. State Farm Mut. Auto. Liability, 95 Wis.2d 215, 290 N.W.2d 285, 290 (1980); Employers Casualty Co. v. Azar, 28 Colo.App. 566, 479 P.2d 979, 980 (1970). In the absence of effects caused by the movement of a vehicle, a vehicle is inherently no different than any other object or location, and it becomes merely the situs of the injuries, bearing no causal relationship to its nature as a vehicle. Reynolds v. Allstate Ins. Co., 400 So.2d 496, 497 (Fla.App.1981).
When making the determination of whether an injury arose out of the use of a vehicle, it is also important to consider whether the parties intended to contract against the particular incident. For example, in Sciascia v. Am. Ins. Co., 443 A.2d 1118, 1122 (N.J.1982), the court held that the firing of a gun from a moving vehicle was not a “natural and probable incident or consequence of the use of an automobile by an uninsured motorist.” Further, “it was not a risk against which the insurer and the insured might reasonably expect that protection would be afforded under a policy providing uninsured motorist coverage.” See also Ohio Casualty Group of Ins. Cos. v. Bakaric, 355 Pa.Super. 345, 513 A.2d 462, 465 (1986); Gen. Accident Fire & Life Assurance Corp. v. Appleton, 355 So.2d 1261, 1263 (Fla.Dist.Ct.App.1978). Courts
When considering these principles together with the facts of the current case, I must agree with Prudential that such an accident was not covered by the terms of the policy. The cause of the injury was the gun, not the vehicle. The only connection between either automobile and the shooting was that the automobiles transported the respective parties to the location where the shooting occurred. Gilbertson v. State Farm Mut. Auto. Ins., 845 F.2d 245 (10th Cir.1988), is illustrative of this point. There, the insured loaned her car to a friend, York. York, after getting drunk, drove to an overpass on a highway and dropped a fifty-one pound boulder onto a car below, killing one person and injuring two others. Holding that the incident was not covered by the uninsured motorist policy, the court stated as follows:
The real question in this case is one of causation. The court feels that York‘s exiting the car, removing the rock from the car, carrying the rock to the ledge and then allowing it for fall, taken together, constituted an act of independent significance which broke the causаl link between the use of the car and the Gilbertsons’ injuries. Neither the car‘s locomotion nor any of its mechanical functions was involved in either York‘s dropping the rock nor the rock‘s hitting the Gilbertson vehicle.
Plaintiffs, in urging that Willard‘s wounds were covered by the uninsured motorist policy, cite Southeastern Fidelity Ins. Co. v. Stevens, 142 Ga.App. 562, 236 S.E.2d 550 (1977) and Valdes v. Smalley, 303 So.2d 342 (Fla.Dist.Ct.App.1974). In Stevens, the insured‘s son was killed when a gun, which was being carried in the vehicle, discharged immediately after the insured pulled off a smooth road on to a bumpy, rutted road. The court held that the discharge of the gun was directly related to the inherent use of the vehicle, because the driving of the vehicle most likely caused the gun to discharge. In Valdes a mug was thrown from a moving vehicle, resulting in the death of a teenage boy. The court ruled that the throwing of the mug and the high speed of the vehicle were concurrent causes of the accident because the high speed of the vehicle added to the velocity of the mug.
Unlike these cases wherein the use of the vehicle actually concurred in causing the injury, the vehicle in thе present case was merely the location of the shooting. The accident did not arise out the “inherent purpose” of the vehicle, nor did either vehicle contribute or combine with any other force to cause Willard‘s injury. The gun and bullets were the sole cause of his injury. Like the case of Gen. Accidental Fire & Life Assurance Corp. v. Appleton, supra, wherein the insured was attacked by three men while riding in their vehicle, the injury was not caused by the automobile but by the criminal acts of others.
The majority, as an example, states that if instead of firing a gun, Kelley “had thrown a large object out of the car and onto the path of Willard‘s vehicle causing him to crash, there would be little doubt that whatever had been thrown from the car facilitated a getaway in the car and may be deemed to have arisen out of the car‘s use as a means to accomplish the desired escape.” For two reasons, I believe that this example is not applicable to the present case. First, in the majority‘s example, the velocity of the vehicle would have contributed directly to the injury sustained. As in Valdes, the spеed of the vehicle may be considered a cause concurrent with the throwing of an object. Here the gun and bullets were the sole cause of Willard‘s injury; the vehicle did not cause or contribute to his injury. Secondly, the majority example points out that the vehicle might have contributed to the escape. However, that is not the focus when determining whether a causal connection exists. The nexus must exist between the plaintiff‘s injury and tortfeasor‘s vehicle, not
Similar results have been reached by many other states who have confronted this problem. Ohio Casualty Group of Ins. Cos. v. Bakaric, 355 Pa.Super. 345, 513 A.2d 462 (1986) (automobile liability insurance did not cover a shooting which occurred in an automobile because the accident did not arise out of the use of the vehicle); Rustin v. State Farm Mut. Auto. Ins. Co., 254 Ga. 494, 330 S.E.2d 356 (1985) (automobile liability policy did not cover a shooting death which occurred after an automobile accident because the injury did not arise out of the use of the vehicle); State Farm Mut. Auto. Ins. Co. v. Smith, 107 Idaho 674, 691 P.2d 1289 (Ct.Aрp.1984) (automobile liability policy did not cover accidental shooting which occurred in vehicle because the accident did not arise out of the use of the vehicle); Union Ins. Co. v. Connelly, 694 P.2d 354 (Colo.Ct.App.1984) (automobile liability policy did not cover accidental shooting which occurred when a gun was unloaded from the vehicle because the injury did not arise out of the use of the vehicle); Sciascia v. Am. Ins. Co., 183 N.J.Super. 352, 443 A.2d 1118 (1982) (uninsured motorist policy did not cover deliberate shooting perpetrated by a moving vehicle because it did not arise out of the use of the automobile); Love v. Farmers Ins. Group, 121 Ariz. 71, 588 P.2d 364 (Ct.App.1978) (automobile liability policy held not to cover the assault and murder of insured who was abducted in his vehicle and driven to a deserted area where he was killed); Nationwide Mut. Ins. Co. v. Knight, 34 N.C.App. 96, 237 S.E.2d 341 (1977) (automobile liability policy did not cover an intentional shooting perpetrated by a person in a moving vehicle because it did not arise out of the use of the vehicle); Employers Casualty Co. v. Azar, 28 Colo.App. 566, 479 P.2d 979 (1970) (automobilе liability policy did not cover accidental shooting because the incident did not arise out of the use of the vehicle); Nat‘l Union Fire Ins. Co. v. Bruecks, 179 Neb. 642, 139 N.W.2d 821 (1966) (automobile liability policy did not cover accidental shooting because the injury did not arise out of use of the vehicle); Culp v. Northwestern Pac. Indem. Co., 365 F.2d 474 (10th Cir.1966) (automobile liability policy did not cover injuries caused by a fight between two men who were unloading a truck at the time of the incident).
The Wisconsin Supreme Court faced an analogous situation in Tomlin, 290 N.W.2d at 285. In Tomlin, a police officer stopped a young man for a traffic violation. After asking the man to exit his vehicle, the officer noticed several beer cans in the floorboard and bent to examine them. The young man then stabbed the officer seven times. When considering whether this injury arose out of the use of the vehicle, the court resolved that, as a matter of law, the vehicle‘s connection with the injury was not sufficient to bring it within the terms of the policy. Thus, the incident was not covered.
The majority remands to the trial court for a determination of whether the injury was an “accident” within the meaning of the policy. Only if the injury occurred in the course of “use” of the vehicle as legally defined here would I then be concerned with whether it was accidental or otherwise; it is thus of no consequence here. Vanguard Ins. Co. v. Cantrell, 18 Ariz.App. 486, 503 P.2d 962 (1973) is a case correctly identifying the principles governing both “use” and “intent.” There, the insured brought suit against the insurer, alleging that his injuries arose out of the use of a vehicle. The insured was shot by a fleeing felon during a robbery. The perpetrator drove up to the drive-in window and ordered the insured to give him all the money in the store. After the insured complied, the perpetrator started to drive off and fired a shot over his shoulder. He testified that he did not intend to harm anyone, but only meant to frighten the insured when he fired the gun. The court found that the injury did not arise out of the use of the vehicle:
From the standpoint of causation, this injury could have occurred in the woods, in a hunting lodge, or in a house. That the situs of the accident was in fact within a motor vehicle and the fact that both the tort-feasor and the injured party were ‘using the car’ at the time does not
make the injury one ‘arising out of the ... use’ of the vehicle. Nor did the injury result from any incident of ‘ownership’ of the vehicle. (Citation omitted)
The court also recognized that the question of intent was not relevant to the determination of “use,” but was only a consideration with regard to the issue of “accident.” The court reasoned that because the act was unintentional from the standpoint of the insured, it was an “accident” within the terms of the policy. See Celina Mut. Ins. Co. v. Saylor, 35 Ohio Misc. 81, 301 N.E.2d 721 (1973). But the insured in Vanguard lost his claim under his automobile policy because his injury did not arise out of use of the vehicle.
The proper focus is whether the shooting of Willard was causally connected to the use of an uninsured motor vehicle. I must agree with the reasoning used by a majority of our sister jurisdictions, which hold that as a matter of law gunshot wounds are not normally causally related to the use of the automobile, even if the vehicle was used in transportatiоn to the location where the shooting occurred. No material facts as to use of the vehicle are here in dispute, and summary judgment in favor of Prudential is proper.
I am authorized to state that Justice LAVENDER joins in these views and that Justice SIMMS joins in part.
BLACKGOLD EXPLORATION COMPANY LTD., Appellant, v. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF ELK CITY, Oklahoma, Appellee.
No. 71596.
Supreme Court of Oklahoma.
Dec. 26, 1990.
As Corrected Jan. 9, 1991.
Notes
“(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 ... unless the policy includes the coverage described in subsection (B) of this section.
“(B) The policy ... shall provide coverage ... for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and 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
“[when] death or injury is not the natural or probable result of the insured‘s voluntary act, or something unforeseen occurs [while performing the act], the death or injury is held to be within the protection of policies insuring against death or injury from accident or accidental means.” (Emphasis added.) 7 A.L.R. 1131, 1133.
On the later annotation‘s subject,
“the rule seems to be settled that although an insured is intentionally killed or injured by another person, the death or injury is deemed to have been caused by accident or through accidental means where it was neither foreseen, expected, [nor] anticipated by the insured.” (Emрhasis added.) 49 A.L.R.3d 673, 679.
We note that judicial assessment of an injurious event from the insured‘s vantage point has аlready made its way into the body of Oklahoma‘s persuasive, though not precedential, UM jurisprudence. See Stucky v. Long, Okl.App., 783 P.2d 500, 503 (1989).
Several jurisdictions have dealt with the question whether or under what circumstances an insured‘s gunshot wounds may be viewed as arising out of an uninsured motorist‘s use of a vehicle. See Kish v. Central Nat. Ins. Group of Omaha, 67 Ohio St.2d 41, 424 N.E.2d 288, 294-295 (1981); Shouman v. Nationwide Insurance Company, 42 Ohio App.3d 159, 537 N.E.2d 696, 697 (1988); Sciascia v. American Ins. Co., 183 N.J.Super. 352, 443 A.2d 1118, 1121-1122 (L.1982); General Acc. Ins. Co. of America v. Olivier, supra note 10, at 1242-1243; Detweiler v. J.C. Penney Cas. Ins. Co., 110 Wash.2d 99, 751 P.2d 282, 287 (1988); Nationwide Mut. Ins. Co. v. Munoz, 199 Cal.App.3d 1076, 245 Cal.Rptr. 324, 327-328 (1988).
Brodsky, where the trial court sustained a demurrer to the petition and this court reversed its judgment, serves as an example of the principle that when two or more fact issuеs are intertwined and one of them might appear undisputed if they be viewed separately, neither can be dealt with in isolation from the others as though it were wholly severable. There, the defendant in a negligence action had argued that the plaintiff‘s injuries were directly and proximately caused by another‘s negligence, which was an independent, supervening force that broke the causal chain. This court held that foreseeability is the test for determining both the existence of an actor‘s duty and the causal connection between the duty‘s breach and the resulting harm; if the intervening cause “should have been anticipated,” the actor‘s negligent conduct will be deemed the proximate cause of the plaintiff‘s injuries. Foreseeability of harm from an intervening agency marks the outer limit both of the duty and of the causal nexus. Similarly here, foreseeability—viewed from the insured‘s standpoint—impacts both the insurer‘s duty to indemnify (for the “accident“) and the harm‘s nexus to the uninsured vehicle‘s use.
“The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
* * *
22. Evidence of a final judgment, entered after a trial or upon a plea of guilty, but not upon a plea of nolo contendere, adjudging a person guilty of a crime punishable by death or imprisonment in excess of one (1) year, to prove any fact essential to sustain the judgment, but not including, when offered by the state in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility;
* * *” (Emphasis added.)
“a. * * * The motion [for summary judgment] shall be accompanied by a concise written statement of the material facts as to which the movant contends no genuine issue exists and the reasons why summary judgment should not be granted. * * *
“b. If the adverse party or parties wish to opposе the granting of the motion, they shall serve on the moving party and file with the court clerk within fifteen days after service of the motion a concise written statement of the material facts as to which he or they contend a genuine issue exists and the reasons for denying the motion. The adverse party shall attach to the statement affidavits and other materials containing facts that would be admissible in evidence, but the adverse party cannot rely on the allegations or denials in his pleading. * * *
“c. The affidavits that are filed by either party shall be made on personal knowledge, shall show that the affiant is competent to testify as to the matters stated therein, and shall set forth matters that are admissible in evidence. * * *” (Emphasis added.)