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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Shaw v. State Farm Mutual Automobile Insurance Company (3/16/01) sp-5373

Shaw v. State Farm Mutual Automobile Insurance Company (3/16/01) sp-5373

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



THE SUPREME COURT OF THE STATE OF ALASKA


KAREL SHAW,                   )
                              )    Supreme Court No. S-9257
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-98-10356 CI
                              )
STATE FARM MUTUAL AUTOMOBILE  )    O P I N I O N
INSURANCE COMPANIES,          )
                              )
             Appellee.        )    [No. 5373 - March 16, 2001]
______________________________)


          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                    Peter A. Michalski, Judge.


          Appearances:  William D. Artus, Artus &
          Choquette, P.C., Anchorage, for Appellant. 
Joe M. Huddleston, Hughes, Thorsness, Powell, Huddleston & Bauman,
LLC, Anchorage, for Appellee.


          Before:   Fabe, Chief Justice, Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.  


          MATTHEWS, Justice.


I.   INTRODUCTION
          Karel Shaw was sitting in her Ford Thunderbird when
Patrick Murphy leaned from his pickup truck and shot her six times,
leaving her a quadriplegic.  Because Shaw's damages far exceeded
the limits of Murphy's automobile insurance policy, Shaw sued her
own insurance carrier, State Farm, seeking coverage for "bodily
injury . . . caused by accident arising out of the operation,
maintenance[,] or use of an uninsured . . . or underinsured motor
vehicle."  Both parties moved for summary judgment.  The superior
court granted State Farm's motion and denied Shaw's motion. 
Because there is a material dispute about whether Murphy used his
pickup to stalk and trap Shaw before shooting her, we reverse the
grant of summary judgment to State Farm and remand for further
proceedings.
II.  FACTS AND PROCEEDINGS
          Karel Shaw and Patrick Murphy were involved in a six-year
relationship that Shaw ended in October 1996.  Murphy continued to
call Shaw and try to see her over the next six months, but never
threatened her. 
          On April 23, 1997, Shaw planned to attend a fund-raiser
at the Fly By Night Club.  Before going to the Fly By Night Club,
Shaw met a friend at Eddie's Sports Bar.  Murphy came into Eddie's
a short time later.  He was angry, combative, and drinking heavily.
After Shaw left Eddie's to go to the Fly By Night Club, Murphy also
left Eddie's and drove through the parking lot of the Fly By Night
Club looking for Shaw.
          Shaw left the Fly By Night Club and went home.  She told
her daughter that she had seen Murphy drinking heavily at Eddie's
and had been told that he was looking for her in the parking lot of
the Fly By Night Club.  Shaw called a friend, and arranged to go
over to his home.  Before leaving, she warned her daughter that
Murphy might come to the house and told her not to open the door to
him or anyone else.  When Shaw left her home, she drove west on
Sentry Drive to the stop sign at the corner of Sentry Drive and
Independence Drive, intending to turn right onto Independence
Drive.
          What happened next is disputed.  According to Shaw,
Murphy drove his truck down the left hand (eastern) lane of
Independence Drive, Shaw's intended lane of travel, and thus
prevented Shaw from turning right.  Murphy then turned sharply in
front of Shaw, again preventing her from turning.  He stopped his
truck within six to eight inches of the driver's side of Shaw's
car, so close that Shaw was afraid the two vehicles would hit if
she went forward or turned.  Murphy's window was down.  Shaw
insists that she would have driven on instead of waiting for Murphy
to approach her had he been on foot, and would not have opened the
door for Murphy had he come to her house.
          According to State Farm's expert, however, Murphy had
binoculars in his truck, and was probably lying in wait for Shaw on
the west side of Independence Drive.  After spotting Shaw, Murphy
pulled across Independence Drive and came up beside Shaw's car,
stopping approximately two to three feet away.  Both Murphy's and
Shaw's driver's side windows were fully open.  In her statement to
the Anchorage Police Department, Shaw stated that she "slowed down
for [Murphy]."  She intended to tell Murphy to "leave [her] alone
and go home."
          What happened next is not disputed.  Murphy took a .45
caliber Glock pistol from the seat of his pickup, steadied his aim
on the truck's door, and shot Shaw six times.  Murphy then shot
himself in the head.  Shaw's car rolled forward and butted into a
snowbank on the far side of Independence Drive.  Murphy died, and
Shaw was left a quadriplegic.
          Murphy's automobile insurance coverage was limited to
$50,000 per person.  As Shaw's damages exceeded $50,000, she
demanded payment under the uninsured/underinsured motorist
provision of her State Farm insurance policy.  Her policy limit
under the uninsured/underinsured motorist provision was also
$50,000.  State Farm refused to pay.  Shaw then sued State Farm.
State Farm moved for summary judgment and Shaw filed a cross-motion
for summary judgment.  The superior court granted State Farm's
motion for summary judgment and denied Shaw's cross-motion.  Shaw
appeals contending that the court erred in granting State Farm's
summary judgment motion and denying her cross-motion.
III. DISCUSSION
     A.   Standard of Review
          "We review a grant of summary judgment de novo, applying
our independent judgment." [Fn. 1]  We will uphold a grant of
summary judgment "if no issues of material fact are in dispute and
the moving party is entitled to judgment as a matter of law." [Fn.
2]  "All reasonable inferences of fact are drawn in favor of the
nonmoving party". [Fn. 3]  "The moving party bears the initial
burden of proving, through admissible evidence, the absence of
genuine factual disputes and its entitlement to judgment." [Fn. 4]
     B.   Did the Superior Court Err When It Granted State Farm's
Motion for Summary Judgment and Denied Shaw's Cross-Motion?

          Shaw's insurance policy provided coverage for "bodily
injury . . . caused by accident arising out of the operation,
maintenance[,] or use of an uninsured . . . or underinsured motor
vehicle."  State Farm admits that Shaw was shot by Murphy, and does
not contest Shaw's contention that Murphy's vehicle was
underinsured.  Shaw's injuries will thus be covered by her State
Farm policy if they were (1) caused by an "accident" that (2) arose
out of the "operation, maintenance[,] or use" of Murphy's truck.
          1.   Were Shaw's injuries caused by "accident"?
          At the outset Shaw argues that her injuries were caused
by "accident," noting that an intentional event may nonetheless be
an accident within the policy language if it is both unexpected and
unintended by the injured party: 
          [I]n analyzing whether a particular incident
is an "accident" for purposes of uninsured motorist coverage, the
courts should view the incident from the injured party's
perspective.  Thus if the event causing the injury is unintended
and unexpected from the injured party's viewpoint, the injury is
deemed to have occurred as a result of an accident.[ [Fn. 5]]

State Farm does not take issue with this principle, or even mention
it on appeal.  In the superior court State Farm adverted to this
principle, but explicitly declined to contest it.
          We agree with Shaw on this point.  What counts as an
"accident" is not defined by Shaw's insurance policy.  When the
language of a policy provides no guidance in the definition of its
terms, we may determine the policy's meaning by examining case law
interpreting similar provisions. [Fn. 6]  We have previously
"defined the term 'accident' as 'anything that begins to be, that
happens, or that is a result which is not anticipated and is
unforeseen and unexpected.'" [Fn. 7]  Further, we have held that
whether an occurrence is unanticipated, unforeseen, and unexpected
is to be determined from the perspective of the insured. [Fn. 8] 
Shaw, of course, was the "insured" under her State Farm policy. 
State Farm has not contested Shaw's assertion that "[t]he shooting
was completely unexpected," and that until she saw the gun in
Murphy's hand she had "[no] indication of any kind that [he] would
shoot [her]." Accordingly, Shaw's injuries were caused by
"accident."
          We would need to say no more were it not for an apparent
conflict between our holding here and one of our statements in a
recently decided case, Kim v. National Indemnity Co. [Fn. 9]  In
Kim, we briefly addressed the question of whether a minor who had
been sexually assaulted by a cab driver was entitled to recover
under the uninsured motorist provision of the cab driver's
insurance policy. [Fn. 10]  We first held that the cab driver was
not covered by his general insurance agreement, which restricted
coverage to injuries caused by "accident" -- because the driver's
abuse of the minor was intentional, not accidental. [Fn. 11]  We
further held that "the uninsured motorist provision does not cover
[the minor] L.W.'s injury for the same reasons that the general
insuring agreement does not:  L.W.'s injury did not result from an
'accident.'" [Fn. 12]  Under the general insurance agreement,
however, it was the cab driver who was the "insured"; under the
uninsured motorist provision, by contrast, it was the minor
passenger who was the "insured."  Because the intentional assault
was not expected by the victim, what was not an accident from the
perspective of the insured cab driver could still have been an
accident from the perspective of the insured minor.  To the extent
that our statement in Kim suggests otherwise, it is overruled.  
          The result in Kim was correct based on the briefing in
that case.  In arguing that the minor's injuries should be covered
under the uninsured motorist provision, the appellant in Kim argued
that if liability coverage would have been provided under the
general insurance agreement but for the presence of a separate
abuse and molestation exclusion, then coverage should still be
provided under the uninsured motorist provision because the abuse
and molestation exclusion did not apply to that provision and
public policy would not bar such a result for the molester would
not benefit.  Our holding that liability coverage would not be
provided under the general insurance agreement (regardless of the
abuse and molestation exclusion), [Fn. 13] however, defeated the
appellant's conditional argument for coverage under the uninsured
motorist provision.  Because the appellant in Kim did not argue
that the abuse could have been an "accident" from the minor's
perspective even though it was not an "accident" from the
tortfeasor's perspective, he abandoned that point on appeal. [Fn.
14] 
     2.   Did the accident arise out of the "operation,
maintenance, or use" of Murphy's truck?

          The crux of the parties' dispute is whether the accident
arose out of the "operation, maintenance, or use" of Murphy's
truck.  Shaw argues that Murphy "used" his truck to stalk her, trap
her, surprise her, and shoot her. [Fn. 15]  State Farm argues, to
the contrary, that it was mere coincidence that Murphy shot Shaw
from his truck, and that Murphy's "use" of his truck thus had no
legally significant causal connection to the shooting.
          In Criterion Insurance Co. v. Velthouse, we had occasion
to address the question of when an injury arises out of the "use"
of a motor vehicle. [Fn. 16]  Mack Velthouse, while "horsing
around" with friends in his parked vehicle, picked up a loaded
shotgun and accidentally shot James Harman. [Fn. 17]  Harman sought
coverage under Velthouse's insurance policy, which extended
coverage to "bodily injury . . . arising out of the ownership,
maintenance, or use of the owned auto." [Fn. 18]  We noted in
Velthouse that there must be "some causal connection between the
'use' of the vehicle and the injury." [Fn. 19]  Observing that
there is an insufficient causal connection between the "use" of a
vehicle and an injury where the vehicle is the mere "situs" of the
injury-causing accident, [Fn. 20] we approvingly cited those "more
recent cases" which "refuse[d] to interpret 'use' as meaning other
than use of the vehicle in its inherent status as a vehicle." [Fn.
21]  But we noted that most courts do not require "proximate cause
in its strict legal sense;" rather they "only require 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."
[Fn. 22]  Because the accident could just as easily have occurred
in a field or in the home as in Velthouse's parked truck, we held
that it had no connection with the "use" of Velthouse's vehicle as
a matter of law. [Fn. 23]
          Our holding in Velthouse is paralleled by the Minnesota
Supreme Court's subsequent decision in Continental Western
Insurance Co. v. Klug. [Fn. 24]  In Klug, the court noted that
"[t]he legal issue of whether an accident arises out of the use .
. . of an automobile is a recurring question which defies a simple
test.  Instead, each case presenting such a question must, to a
great degree, turn on the particular facts presented." [Fn. 25] 
Russell Klug was driving home from work when Daniel Bahe, a
coworker, pulled up beside him and shot him with a shotgun. [Fn.
26]  As Klug accelerated, Bahe fired a second shot, sped up and
rammed Klug from behind, and chased Klug down the highway until
Klug was able to duck onto an exit ramp and escape. [Fn. 27]
          The Minnesota court set out three general factors to
consider when addressing the issue of whether an accident arises
out of the "use" of an automobile:  
          (1) "[T]he extent of causation between the
automobile and the injury"; [Fn. 28]

          (2)  "[W]hether an act of independent
significance occurred, breaking the causal link between 'use' of
the vehicle and the injuries inflicted"; [Fn. 29] and 

          (3)  "[W]]hat type of 'use' of the automobile
was involved." [Fn. 30]

The Minnesota Supreme Court eventually concluded that the requisite
degree of causation existed, noting that Bahe had used his car to
keep up with Klug for over two miles in order to try to shoot him,
had not left his car before shooting Klug, and had used his car not
only to maneuver himself into a position to harm Klug but also to
maneuver Klug into a position from which Klug could be harmed. [Fn.
31]  
          Although the parties dispute the circumstances
surrounding the shooting, Shaw's account of the attack resembles
the Minnesota Supreme Court's description of the attack on Klug.
According to Shaw, the shooting was simply the last act in Murphy's
nightlong use of his truck to stalk her and trap her in a position
where she could be harmed.  Moreover, Shaw alleges that Murphy's
attack required the use of his truck as a truck.  Shaw insists that
she would have kept driving if Murphy had not blocked her with his
pickup, would not have waited for Murphy to approach her in her car
had he been on foot, and would not have let Murphy into her home
had he come to the door.  
          According to State Farm's account, by contrast, Murphy
was not stalking Shaw in his truck, but simply happened to be
waiting in it for her to emerge from her home.  State Farm also
argues that Murphy's truck did not block Shaw from turning onto
Independence Drive, but that she slowed of her own accord to talk
to Murphy.  Finally, State Farm insists that Murphy could just as
easily have come up to Shaw's car on foot to shoot her while she
waited to tell him to leave her alone and go home.
IV.  CONCLUSION
          As the Minnesota Supreme Court suggested in Klug, whether
Shaw's shooting arose from the "use" of Murphy's truck depends, to
a great degree, on the particular facts of the case. [Fn. 32] 
Because those material facts are in dispute, the superior court
correctly ruled that Shaw was not entitled to summary judgment but
erred in granting summary judgment to State Farm.  Accordingly, we
REVERSE the judgment of the superior court and REMAND for further
proceedings.


                            FOOTNOTES


Footnote 1:

     Fejes v. Alaska Ins. Co., 984 P.2d 519, 520 (Alaska 1999).


Footnote 2:

     Id. 


Footnote 3:

     Id.


Footnote 4:

     Id. 


Footnote 5:

     State Farm Mutual Auto. Ins. Co. v. Blystra, 86 F.3d 1007,
1011 (10th Cir. 1996).


Footnote 6:

     See Fejes, 984 P.2d at 522.


Footnote 7:

     Id. at 523 (quoting INA Life Ins. Co. v. Brundin, 533 P.2d
236, 242 n.23 (Alaska 1975)).


Footnote 8:

     See C.P. v. Allstate Ins. Co., 996 P.2d 1216, 1223 (Alaska
2000) ("Absent contract language clearly specifying an objective
perspective, our practice of enforcing the insured's reasonable
expectations requires us to determine whether the loss was the
result of an accident from the perspective of the insureds claiming
coverage.").


Footnote 9:

     6 P.3d 264 (Alaska 2000).  


Footnote 10:

     Id. at 269.


Footnote 11:

     Id. at 267.


Footnote 12:

     Id. at 269.


Footnote 13:

     See id. at 267.


Footnote 14:

     See Adamson v. University of Alaska, 819 P.2d 886, 889 n.3
(Alaska 1991).  


Footnote 15:

     Shaw also argues that the shooting arose out of the
"operation" of Murphy's truck even if it did not arise out of the
truck's "use."  Because we hold, infra, that the superior court
erred in granting summary judgment against Shaw on the "use"
argument, we need not reach her "operation" argument.


Footnote 16:

     751 P.2d 1 (Alaska 1986). 


Footnote 17:

     Id. at 1-2.


Footnote 18:

     Id. at 2.


Footnote 19:

     Id. at 3.


Footnote 20:

     Id. at 5.


Footnote 21:

     Id. at 4 (citing cases finding, for example, that the "use" of
a vehicle as a gun rest was an intervening cause of injury barring
insurance coverage).


Footnote 22:

     Id. at 3.


Footnote 23:

     Id. at 5.


Footnote 24:

     415 N.W.2d 876 (Minn. 1987).


Footnote 25:

     Id. at 877-78 (quotation omitted).


Footnote 26:

     Id. at 877.


Footnote 27:

     Id.


Footnote 28:

     Id. at 878 (holding that the vehicle must be an "active
accessory" in causing the injury, a causation standard which
involves "something less than proximate cause in the tort sense and
something more than the vehicle being the mere situs of the
injury").


Footnote 29:

     Id.


Footnote 30:

     Id. (holding that "coverage should exist only for injuries
resulting from use of an automobile for transportation purposes").


Footnote 31:

     Id. at 878-79.


Footnote 32:

     See id. at 877-78.