NATIONWIDE MUTUAL INSURANCE COMPANY v. MUNOZ

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Court of Appeal, Second District, Division 7, California.

NATIONWIDE MUTUAL INSURANCE COMPANY, Plaintiff and Respondent, v. Anna R. MUNOZ, et al., Defendants and Appellants.

No. B014517.

Decided: March 25, 1988

Howard, Moss, Loveder & Strickroth, and James E. Loveder, Santa Ana, for plaintiff and respondent. Thomas Edward Wall, Culver City, for defendants and appellants.

This is an action by Nationwide Mutual Insurance Company (Nationwide) for declaratory relief to determine whether its uninsured motorist coverage applies where the insured, a passenger in one automobile, is shot and killed by an unknown passenger in another automobile.

FACTS AND PROCEEDINGS BELOW

Antonio Munoz and Jacinto Segura had been shooting craps in a park one evening with two unidentified men.   Munoz and Segura won some money from the other men and when they left in Segura's car the other men followed.   As Segura and Munoz drove along the Harbor Freeway a car containing the other men from the crap game pulled along side.   Several shots were fired at Segura's car;  one of them struck and killed Munoz.1

At the time of the shooting Mr. Segura had an automobile insurance policy issued by Nationwide.   Mr. Munoz was an additional insured on the policy.   The uninsured motorist provisions of that policy, consistent with Insurance Code section 11580.2 cover damages “result[ing] from an accident arising out of the ․ use of the uninsured vehicle.”   An uninsured vehicle is defined in the policy and the statute as a vehicle which causes bodily injury to an insured by physical contact with such person or a vehicle he is occupying.

Mr. Munoz' widow and child filed a claim with Nationwide for compensation under the uninsured motorist provision of Segura's policy.   Nationwide brought an action against the widow and child for a declaration it was not obligated to pay under that provision.   On Nationwide's motion for summary judgment the trial court found there were no material issues of fact and Nationwide was entitled to a declaration that, as a matter of law, Munoz' death was not covered by the uninsured motorist clause of the policy.   Accordingly, the trial court granted judgment for Nationwide.   We reverse.

ISSUES

1. Where a gunman in an automobile chased the insured, who was also in an automobile, overtook him, shot him and then escaped, did the insured's injury arise out of the gunman's use of a vehicle?

2. If so, did the insured's injury arise out of physical contact of the gunman's vehicle with the insured?

DISCUSSION

A. Did the Injury Arise Out of the Gunman's Use of a Vehicle?

 Our Supreme Court has established the phrase “arising out of the use,” when describing insurance coverage, “has broad and comprehensive application and affords coverage for injuries bearing almost any causal connection with the vehicle.”   Only a “minimal causal connection” is required.  (State Farm Mut. Auto. Ins. Co. v. Partridge (1973) 10 Cal.3d 94, 100, fn. 7, 109 Cal.Rptr. 811, 514 P.2d 123.)  (Emphasis in original.)

Ms. Munoz argues the gunman's car played more than a minimal role in the slaying of her husband.   She claims the car played an integral role and was a substantial factor in bringing about his death.   The car was used to chase Munoz from the park to the freeway.   Once the gunman caught up with Munoz, the car provided a platform from which to launch the attack.   The car may even have assisted in the actual shooting if, for example, the gunman used the car door as a gun rest to steady his weapon and improve his accuracy.   After the shooting, the car provided the means for a successful escape.   Without the car the gunman could not have overtaken Munoz or gotten within close range for the shots.

Ms. Munoz relies principally on National American Ins. Co. v. Insurance Co. of North America (1977) 74 Cal.App.3d 565, 140 Cal.Rptr. 828 where the court held the phrase “arising out of the use” covered injury to a pedestrian struck by an egg thrown from the insured's car.  (Id. at pp. 571–572, 140 Cal.Rptr. 828.)   The court based its conclusion largely on testimony of the insured he probably would not have gone “egging” without his car because he could not have covered as much ground and because the car provided a means of “quick escape.”   The court also pointed out the injury was due in large part to the 40 mile-per-hour speed imparted to the egg by the car's forward motion.  (Id. at p. 571, 140 Cal.Rptr. 828.)   Ms. Munoz points to the similarities between the “egging” case and the case at bar.   Here, as in the “egging” case, the car allowed the gunman to cover ground he otherwise could not have covered because Munoz himself was in a car on the freeway.   As in the “egging” case, the car provided a means for a quick escape.   And, as in the “egging” case, the car made a unique contribution to the injury.   In the “egging” case, the speed of the car added a velocity to the egg that could not have been achieved had the “egger” thrown while standing or riding a bicycle.   In the case before us, the car allowed the gunman to come within close range of his target, maintain that range and served as a launching pad for the missile fired at Munoz.   The shooting of Munoz could not have taken place without the use of a car.

Nationwide counters that even a minimal causal connection between the vehicle and the injury is not satisfied where the subject vehicle is merely the site of the injury or the means that brought the assailant and victim together.   If this were the only connection required then, given the automobile's pervasive role in our society, automobile insurance could be held to cover virtually every physical injury.  (Cf. Interinsurance Exchange v. Macias (1981) 116 Cal.App.3d 935, 937, 172 Cal.Rptr. 385.)

Nationwide distinguishes the “egging” case on the ground a unique attribute of the automobile, great speed, directly contributed to the injury by adding velocity to the egg.   In the case at bar, the bullet could have killed Munoz whether it was shot from a moving vehicle or not.   In this case, unlike the “egging” case, there is nothing about the use of the car that caused the shooting.   The shooting did not occur out of anger over the way one of the parties drove his car (Cf. Allstate Ins. Co. v. Gillespie (Fla.1984) 455 So.2d 617, 620 with United Services Automobile Assn. v. Ledger (1987) 189 Cal.App.3d 779, 782, 234 Cal.Rptr. 570) or because the gunman's car hit a bump (State Farm, supra, 10 Cal.3d at p. 98, 109 Cal.Rptr. 811, 514 P.2d 123) or because shooting was inherent to the use of the car, e.g., as in the case of a police car.  (Cf. State Farm Mut. Auto. Ins. Co. v. Whitehead (Mo.1986) 711 S.W.2d 198, 201.)

In United Services, supra, the insured, Tippitt, merged into traffic in a way that forced Arters to take evasive action to avoid a collision.   Arters followed Tippitt to his destination, began yelling at Tippitt and finally challenged him to a fight.   Tippitt accepted.   In the course of the fight Tippitt stabbed and killed Arters.  (189 Cal.App.3d at pp. 781–782, 234 Cal.Rptr. 570.)   The court held Arter's death did not arise out of the use of Tippitt's automobile even though it was Tippitt's driving that precipitated the fight.   Tippitt's “vehicle seemed only to transport Tippitt to the scene where the stabbing took place.”  (Id. at p. 784, 234 Cal.Rptr. 570.)   Nationwide argues Ms. Munoz' claim is even weaker than Arters.   Here, as in United Services, the gunman's car served only to transport the gunman to the scene where the shooting took place.   Furthermore, the evidence shows the shooting had nothing to do with discourteous or reckless driving;  it was precipitated by a crap game in a park.

The closest case to ours on the facts is Continental Western Ins. Co. v. Klug (Minn.1987) 415 N.W.2d 876 in which the court held the injury to the insured, who was shot by another motorist as they both drove down the freeway, arose out of the use of the uninsured motorist's vehicle.   Klug was driving home from work when a car driven by Bahe, a co-worker, pulled alongside.   Both drivers were traveling 55 miles per hour on a freeway or highway.   Bahe pulled next to Klug in the passing lane about three to five feet away, pointed a shotgun out the passenger window and shot Klug in the arm.   Klug pulled off at the next exit ramp and Bahe continued down the freeway. (Id. at p. 877, 234 Cal.Rptr. 570.)

The court in Continental Western looked at three factors to decide if Klug's injury arose out of Bahe's use of an automobile for purposes of Klug's uninsured motorist coverage.   The first consideration was the causal connection between the uninsured vehicle and the injury.  (Cf. State Farm Mut. Auto. Ins. Co. v. Partridge, supra, 10 Cal.3d at p. 100, fn. 7, 109 Cal.Rptr. 811, 514 P.2d 123;  National American Ins. Co. v. Insurance Co. of North America, supra, 74 Cal.App.3d at pp. 571–572, 140 Cal.Rptr. 828.)   The court found Bahe's car was an “active accessory” to the assault because Bahe used it to overtake and keep up with Klug in order to shoot him.  (415 N.W.2d at p. 878.)   The next consideration was whether any act of independent significance occurred to break the causal link.  (Cf. United Services, supra, 189 Cal.App.3d at p. 784, 234 Cal.Rptr. 570.)   The court found Bahe's actions of driving and shooting were inextricably linked.   “Had Bahe used his vehicle to drive ahead of Klug, left his vehicle, and shot Klug from the side of the road, we might have found an intervening act.   Under the circumstances of this case, however, we hold that the causal link between Klug's injuries and the use of the car was not broken.”  (Ibid.)  Finally, the court considered whether Bahe was using his vehicle for transportation purposes.   The court concluded, “Bahe used his vehicle as more than just a gun rest ․ he also used it to drive alongside Klug to assault him.”  (Ibid.)

There also are other cases outside California supporting Ms. Munoz.   For example, in Pena v. Allstate Ins. Co. (Fla.1985) 463 So.2d 1256 the court held the plaintiff's injuries arose out of the use of a motor vehicle where the plaintiff, a taxicab driver, was shot by a passenger in a robbery attempt.   The robber escaped in plaintiff's taxi.   The court found the taxi was more than just the situs of the assault.  “[T]he vehicle itself became an instrumentality in the robbery when it was used not only to take the plaintiff and the robber to the scene of the crime, but also as a means of escape for the robber after the commission of the crime.”  (Id. at p. 1258.)   In Fortune Insurance Company v. Ferreiro (Fla.1984) 458 So.2d 834 a passenger in a truck was shot in the hand by the driver of a car which was attempting to force the truck off the road.   The assailant was neither identified nor apprehended.   The court held the injury arose out of the use of a vehicle and the passenger could claim benefits under the truck owner's uninsured motorist coverage.   The court reasoned the passenger “clearly would be eligible for uninsured motorist benefits if the assailant had succeeded in forcing his truck off the road, thereby injuring him.   It would be anomalous indeed to find no coverage where the assailant effected appellee's injury but with a different instrumentality, i.e., a gun.” (Id. at p. 835.)

As the foregoing decisions demonstrate, whether an accident arose out of the use of a motor vehicle depends on the particular facts of each case.   We believe that in this case Ms. Munoz has satisfied the use requirement.

In the present case, the gunman's car was not the situs of the accident nor was it merely the means by which the assailant traveled to the situs.   It was the launching pad for the attack.   As the “egging” case demonstrates, given the accessibility, speed and maneuverability of the automobile, such a use was reasonably foreseeable by the insurer.2  The fact some instrumentality independent of the vehicle was the direct cause of the injury does not preclude coverage.  (North American Ins. Co., supra, 74 Cal.App.3d 565, 140 Cal.Rptr. 828 [victim struck by egg];  Brunswig Wholesale Druggist v. Travelers Ins. Co. (1969) 273 Cal.App.2d 11, 13–14, 77 Cal.Rptr. 859 [victim struck by object dropped from floor above as he loaded his truck];  Hartford Accident & Indem. Co. v. Civil Service Employees Ins. Co. (1973) 33 Cal.App.3d 26, 32, 108 Cal.Rptr. 737 [victim bitten by dog as she exited automobile].)  Furthermore, the assault on Munoz could not have occurred without the gunman using a vehicle.   This was not a random shooting such as might occur from a roadside or an overpass.   This was a shooting of a specific victim who was himself in an automobile on the freeway.   Only another motor vehicle could have overtaken Munoz, brought the gunman within close range and maintained him there while he fired at Munoz' car.   Only a motor vehicle could have provided the assailant with a quick, successful escape.   Therefore, the gunman's vehicle made a unique contribution to the assault.   (Cf. Continental Western, supra, 415 N.W.2d at pp. 878–879.)

B. Did Munoz' Death Arise Out of Physical Contact of the Gunman's Automobile With Munoz?

 The answer to this question is not as simple as might appear.   If coverage depended on the uninsured vehicle itself striking the victim or the car in which the victim is riding then, clearly, there would be no coverage for Munoz' death.   It is not claimed the gunman's car itself came into contact with Munoz or his vehicle.   The physical contact was made by a bullet fired from the gunman's car.   But, as we explain below, uninsured motorist coverage in California does not depend on actual direct contact between the uninsured vehicle and the victim.   We conclude, consistent with the purpose of the physical contact requirement and the case law defining it, a bullet fired from an automobile which strikes the insured constitutes “physical contact” for purposes of uninsured motorist coverage.

California law requires all automobile insurance policies to contain uninsured motorist coverage, or an express waiver.  (Ins.Code, § 11580.2, subd. (a).)  The original law, enacted in 1959, did not contain the “physical contact” provision.  (Stats.1959, ch. 817, § 1.)   The law was amended in 1961 to allow three additional requirements for coverage where the owner or operator of the vehicle is unknown:  “[t]he bodily injury [must have] arisen out of physical contact of the automobile with the insured or with an automobile which the insured is occupying”;  the accident must have been reported to the police within 24 hours and to the insurance company within 30 days.  (§ 11580.2, subd. (b) (1), (2);  Stats. 1961, ch. 1189, § 2.)

As explained in Inter–Insurance Exchange v. Lopez (1965) 238 Cal.App.2d 441, 443, 47 Cal.Rptr. 834, these amendments “were designed to curb fraud, collusion, and other abuses arising from claims that phantom cars had caused accidents which, in fact, had resulted solely from the carelessness of the insured.   For example, a driver who fell asleep and hit a telephone pole might claim he had swerved off the road to avoid being hit by an unidentified vehicle.   The provision requiring physical contact with the unknown vehicle was added to the statute in order to eliminate such fictitious claims.”

The conclusion in Lopez that the only purpose of the physical contact requirement is to prevent fraud is inescapable given the statutory language and legislative history of section 11580.2.   In the statute, the physical contact requirement is coupled with the accident reporting requirements.   These requirements only apply in cases where the other driver is unknown.   They do not apply where the owner or operator of the vehicle is known and has no insurance.   If the Legislature had intended to authorize insurance companies to impose the physical contact requirement as a substantive eligibility requirement for uninsured motorist coverage of bodily injuries then the physical contact requirement would apply where the owner or operator is known and uninsured as well as where he or she is unknown.   In contrast, insurers may limit uninsured motorist coverage for property damage to cases “where the collision involves actual, direct physical contact between the insured and the uninsured motor vehicle and the owner or operator of the uninsured motor vehicle is identified․”  (§ 11580.26, subd. (b).)  An analysis of the bill prepared by the Governor's office notes the legislation grew out of meetings of representatives of the insurance industry, motor group associations and individual insurers to correct certain flaws in the 1959 legislation and that the bill would prevent fraudulent claims and double recoveries.  (Memorandum to Governor Brown from Alexander H. Pope dated June 30, 1961, source:  Legislative Intent Service.)

After establishing the purpose of the physical contact requirement was to prevent fraud, the Lopez court went on to make this observation:  “The requirements of physical contact and notice are [not] intended ․ to lessen the coverage extended to innocent motorists.   We believe the physical contact requirements, designed to prevent false claims, should not be extended to defeat recovery in cases where fraud clearly does not exist.”  (Inter–Insurance Exchange v. Lopez, supra, 238 Cal.App.2d at p. 446, 47 Cal.Rptr. 834.)   This principle was approved by our Supreme Court in Orpustan v. State Farm Mut. Auto. Ins. Co. (1972) 7 Cal.3d 988, 993, 103 Cal.Rptr. 919, 500 P.2d 1119 and has been adopted in other jurisdictions with a similar state statute.  (See e.g., Motor Vehicle Acc. Indem. Corp. v. Eisenberg (1966) 18 N.Y.2d 1, 271 N.Y.S.2d 641, 644, 218 N.E.2d 524;  Louthian v. State Farm Mutual Insurance Company (4th Cir.1973) 493 F.2d 240, 242 [interpreting South Carolina law];  State Farm Mutual Automobile Insurance Co. v. Spinola (5th Cir.1967) 374 F.2d 873, 875 [interpreting Florida law].)

The principle that the physical contact requirement should not be extended to defeat clearly legitimate claims was applied in Lopez itself to uphold a claim where there was no contact between the uninsured vehicle and the victim.   The court held the physical contact requirement was met where an unknown vehicle struck a second vehicle causing it to strike the insured's vehicle.  (238 Cal.App.2d at p. 446, 47 Cal.Rptr. 834.)   The court suggested other cases where the physical contact requirement would be met:  the uninsured vehicle loses a wheel and the wheel hits the insured;  the uninsured vehicle hits a rock and the rock hits the insured;  the uninsured vehicle is driven so as to intentionally splash water on the insured.  (Id. at pp. 444–445, 47 Cal.Rptr. 834.)   Cases similar to those hypothesized in Lopez have actually arisen in other jurisdictions and the courts have held the physical contact requirement satisfied.  (See, e.g., Illinois Nat. Ins. Co. v. Palmer (1983) 116 Ill.App.3d 1067, 72 Ill.Dec. 454, 456, 452 N.E.2d 707, 709 [lug nut from tire of uninsured vehicle flew through windshield of insured's car injuring him];  Gavin v. Motor Vehicle Accident Indem. Corp. (1968) 57 Misc.2d 335, 292 N.Y.S.2d 745, 747 [uninsured vehicle struck metal object on the road propelling it into the insured riding in another automobile];  Barfield v. Insurance Company of North America (Tenn.1969) 443 S.W.2d 482, 486 [wheel of uninsured vehicle hurled rock through insured's windshield injuring him].)

The only distinction between the case before us and the cases cited supra is that in the previous cases the uninsured vehicle itself set a projectile in motion which physically contacted the victim while here it was an occupant of the vehicle who set the projectile in motion.   This distinction might make a difference if physical contact were viewed as a substantive eligibility condition for uninsured motorist coverage instead of a device to prevent fraud.  (See, e.g., Ford v. Monroe (Mo.1977) 559 S.W.2d 759, 763.)   However, where the only purpose is to prevent fraud there is no difference in principle between physical contact initiated by the uninsured vehicle striking a rock and propelling it through the victim's windshield and an occupant of the uninsured vehicle hurling the rock through the victim's windshield.   In both cases there would be indisputable evidence of physical contact to dispel any conjecture of a “phantom” vehicle.  (Cf. Gavin v. Motor Vehicle Accident Indem. Corp., supra, 292 N.Y.S.2d at p. 747.)   The same is true whether the projectile set in motion by a vehicle occupant is a rock or a bullet.   Counsel for Nationwide essentially conceded this point at oral argument when he agreed throwing a rock from the uninsured vehicle would satisfy the contact requirement.

The Lopez opinion analogized the physical contact requirement in the uninsured motorist statute to the common law concept of battery which required a harmful contact with the person of another.  (238 Cal.App.2d at p. 445, 47 Cal.Rptr. 834, and see Rest. Torts 2nd (1965) § 13, p. 25.)  “The idea of direct touching comprehended any forcible contact brought about by an object or substance thrown or launched or set in motion by a defendant.   A touching which resulted from an instrument directly set in motion by a defendant was a direct application of force and fully satisfied the requirement of bodily contact.”  (238 Cal.App.2d at p. 445, 47 Cal.Rptr. 834.)  Lopez supports coverage in the case before us because the shooting of another is an obvious example of “an object ․ set in motion by a defendant.”

Lopez also helps to explain why coverage was denied in Barnes v. Nationwide Mutual Ins. Co. (1986) 186 Cal.App.3d 541, 230 Cal.Rptr. 800 where the insured collided with a box of dinette chairs lying on the freeway after they fell from an unknown vehicle.   In Lopez, the court distinguished between contacts resulting from the direct application of force—which were batteries at common law—and indirect contacts which were not classified as batteries at common law but as trespass on the case.  (238 Cal.App.2d at p. 445, 47 Cal.Rptr. 834.)   The court cited, as the “classic illustration of the difference” the case of a log thrown onto the highway.  “A person struck by the log as it fell could maintain [an action for battery] against the thrower, since the injury was direct;  but one who was hurt by stumbling over it as it lay in the road could maintain, not [battery], but an action on the case.”   (Ibid.)  In Barnes, the court pointed out, “There was not a direct application of force from the uninsured vehicle.   The box did not fall from the uninsured vehicle onto Ms. Barnes car;  it was lying in the road when Ms. Barnes hit it.”  (186 Cal.App.3d at p. 543, 230 Cal.Rptr. 800.)   In contrast, our case involves the direct application of force to Mr. Munoz in the form of a bullet fired at him from the uninsured vehicle.   Therefore, the physical contact requirement is met.

DISPOSITION

The judgment is reversed.   The appellant is awarded costs on appeal.

FOOTNOTES

1.   In its motion for summary judgment, Nationwide specifically disclaimed any reliance on Insurance Code section 533 which prohibits insurance coverage for losses caused by the willful act of the insured and the trial court did not rely on this section in its decision.   Therefore, we do not address the question whether section 533 would operate to preclude coverage for the willful act of an uninsured motorist.

2.   (Cf. Farmers Ins. Exchange v. Hansel (1970) 12 Cal.App.3d 570, 574, 90 Cal.Rptr. 654 [“Injury arising out of the use of an automobile as an instrument to create a weapon in the form of a broken bottle ․ is not the form of loss for which the automobile liability policy may reasonably be expected to provide indemnity.”].)

JOHNSON, Associate Justice.

LILLIE, P.J., and THOMPSON, J., concur.

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