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ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-16-512
Opinion Delivered January 25, 2017
CARL WILLIAMS AND BONNETTA APPEAL FROM THE DESHA
WILLIAMS COUNTY CIRCUIT COURT
APPELLANTS [NO. 21CV-14-71-1]
V. HONORABLE SAM POPE, JUDGE
ALLSTATE PROPERTY AND
CASUALTY INSURANCE COMPANY AFFIRMED
APPELLEE
WAYMOND M. BROWN, Judge
Appellants Carl and Bonnetta Williams appeal the April 22, 2016 order of the Desha
County Circuit Court granting summary judgment in favor of appellee Allstate. Appellants
argue that the court erred in granting summary judgment because there were genuine issues
of material fact still remaining. We find no error and affirm.
The facts necessary to understand the instant case are as follows. Carl Williams was
driving his vehicle in a northerly direction on U.S. Highway 65 in Mitchellville, Arkansas,
on June 28, 2012, when a vehicle owned and driven by Lewis Edward Phoenix pulled beside
Carl, and Laron Marco Gray shot Carl twice in the left side pelvic area. Phoenix and Gray
fled the scene, and Carl drove himself to the hospital. As a result of the shooting, Carl
incurred medical expenses and damages to his vehicle. Appellants filed a complaint against
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Phoenix and Gray on June 20, 2014, seeking compensatory, punitive, and other damages.1
Appellants filed a motion for default judgment against Phoenix and Gray on October 23,
2014.2 Appellants filed an amended complaint on January 7, 2015, naming appellee as a
defendant. In the amended complaint, appellants alleged that they had uninsured motorist
insurance (UM) with appellee at the time of the shooting and that Carl had made a demand
for payment under the UM section of the policy. However, Carl contended that Allstate
failed and refused to pay anything in breach of its contractual obligation as per the policy.
Thus, appellants sought to be awarded judgment against appellee for policy limits of the UM
as well as statutory reasonable attorney’s fee and interest. Allstate filed an answer to the
complaint on January 26, 2015, essentially denying the material allegations in appellants’
complaint. It put forth several affirmative defenses and asked that appellants’ complaint against
it be dismissed.
Allstate filed a counterclaim for declaratory judgment on June 3, 2015, asking the court
to declare that the UM coverage did not extend to the incident complained of by appellants.
It included a copy of the policy in question. Appellants filed an answer to Allstate’s
counterclaim on July 29, 2015, denying the material allegations and asking the court to deny
Allstate declaratory judgment and to declare that the policy covered the injuries and damages
complained of. Allstate filed an amended counterclaim on September 8, 2015, asking that the
court declare that the hospital and medical benefits as well as the UM coverage under the
1
Bonnetta sought damages for loss of consortium in excess of $75,000.
2
A default judgment on liability was entered on January 9, 2015, against Phoenix
and Gray, reserving damages.
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policy did not cover the June 28, 2012 incident. Appellants filed an answer on September
17, 2015, again, denying the material allegations and asking the court to find that the injuries
and damages were covered by the policy.
Allstate filed a motion for summary judgment and supporting brief on February 10,
2016, alleging that there were no genuine issues of material fact in this case and that it was
entitled to judgment as a matter of law. According to Allstate, appellants’ claimed bodily
injuries and property damage were the result of an intentional shooting of Carl by Gray and
Phoenix, and an intentional shooting did not constitute an “accident” as found in appellants’
policy with Allstate. It also denied that Carl’s damages arose “from the use of a motor vehicle
as a motor vehicle” or “out of the ownership, maintenance or use of an uninsured auto” as
required by the policy. Additionally, Allstate contended that there was no causal relationship
or connection between Carl’s claimed bodily injuries and property damage and the use of a
motor vehicle. Appellants filed a response and accompanying brief on March 7, 2016,3
contending that since Carl was shot while using his vehicle by someone in another vehicle
in use, the injuries and property damages sustained were caused by the respective use of the
autos and were directly related to such uses. Additionally, appellants argued that Carl was
caught by surprise when he was shot, thus, making the shooting an “accident” from Carl’s
perspective. Allstate filed a response on March 18, 2016, arguing that appellants had failed
to meet proof with proof and that Allstate’s summary-judgment motion should be granted.
3
Appellants asked for and received an extension of time to respond to the summary-
judgment motion.
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The court entered a letter opinion on April 22, 2016, which it incorporated into the
order granting summary judgment entered that same day. The court dismissed Allstate from
the proceeding. The court included a Rule 54(b) certification so that appellants could appeal.
This timely appeal followed.
A trial court grants summary judgment when a party is entitled to judgment as a matter
of law.4 An issue involving a question of law is reviewed de novo and is given no deference
on appeal.5 If the language of an insurance policy is unambiguous, we give effect to the
policy’s plain language without resorting to the rules of construction, but if the language is
ambiguous, we construe the policy liberally in favor of the insured and strictly against the
insurer.6 Policy language is ambiguous if there is doubt or uncertainty as to its meaning and
it is fairly susceptible to more than one reasonable interpretation.7 Whether the language of
the policy is ambiguous is a question of law to be resolved by the court.8
Allstate’s policy provides medical and hospital benefits coverage VC in Part II as
follows:
We will pay to or on the behalf of an injured person all reasonable and necessary
expenses incurred within 24 months after the date of the accident for medical
treatment, products, and services actually rendered or furnished.
4
Humphries v. Nationwide Mut. Ins. Co., 97 Ark. App. 125, 245 S.W.3d 156 (2006).
5
Travelers Cas. & Surety Co. of America v. Cummins Mid–South, LLC, 2015 Ark.
App. 229, 460 S.W.3d 308.
6
Humphries, supra.
7
Id.
8
Harasyn v. St. Paul Guardian Ins. Co., 349 Ark. 9, 75 S.W.3d 696 (2002).
4
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Ambulance, hospital, medical, dental, surgical, ... are covered. Treatment and services
rendered in accordance with a recognized religious method of healing are also
covered. Payments will be made only when bodily injury is caused by an accident
arising from the use of a motor vehicle as a motor vehicle. Expenses for hospital room
accommodations are limited to semiprivate room rates.
An injured person is defined under the policy as “you or a resident relative who sustains
bodily injury, sickness, disease, or death arising out of the use of a motor vehicle.” The
policy provides UM coverage SS in Part V as follows:
If a limit of liability is shown on your Policy Declarations for Coverage SS, we will
pay those damages that an insured person is legally entitled to recover from the owner
or operator of an uninsured auto because of:
1. bodily injury sustained by an insured person, and
2. property damage. Property Damage is covered only if a separate limit is shown on
the Policy Declarations for Uninsured Motorist Insurance – Property Damage. The
first $200 of property damage is not covered. We will not pay for property damage
cause by an underinsured motor vehicle.
. . . .
We will not pay any punitive or exemplary damages which are damages which may
be imposed to punish a wrongdoer and to deter others from similar conduct.
The bodily injury or property damage must be caused by accident and arise out of the
ownership, maintenance or use of an uninsured auto.
Appellants contend that since Carl was using his vehicle at the time he was shot by
someone in an uninsured vehicle in use, the UM portion of the policy with Allstate should
have covered his injuries and property damages and that the trial court erred by granting
Allstate summary judgment. Appellants further argue that since Carl had no way of knowing
that he was going to be shot, it was an accident from his perspective even though he was
intentionally shot. Finally, appellants claim that summary judgment should not have been
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granted since “accident,” “arising from the use of a motor vehicle,” and “arising out of the
use of” are not defined in the policy and are ambiguous and susceptible to more than one
reasonable interpretation. Allstate contends that no error was committed and that the trial
court properly granted it summary judgment.
Our supreme court has held that the term “arising out of,” when used in the context
of an uninsured motorist provision, means “causally connected with”—a phrase much broader
than “proximately caused by,”9 but less than “but-for” causation.10
In Hartford Fire Insurance Company v. State Farm Mutual Automobile Insurance Company,11
the court applied the “causally connected with” standard in the context of an insured motorist
provision. In that case, two children were playing in a recreational vehicle parked beside a
house. The children began playing with a loaded .22 caliber pistol that was stored in the
vehicle. The gun accidentally discharged, killing one of the children. After Hartford paid out
a settlement under a homeowner’s insurance policy, Hartford sought contribution from State
Farm, the motor-vehicle insurer. The trial court found that Hartford was not entitled to
indemnity from State Farm because the shooting was not “causally connected with” the
operation of the automobile and thus “did not arise out of the ownership, maintenance or
use” of the vehicle as required by State Farm’s policy. Our supreme court affirmed, noting
that the accident could just have easily occurred in a field, in the driveway, or in a hunting
9
State Farm Mut. Auto. Ins. Co. v. LaSage, 262 Ark. 631, 559 S.W.2d 702 (1978).
10
Hisaw v. State Farm Mut. Auto. Ins. Co, 353 Ark. 668, 122 S.W.3d 1 (2003).
11
264 Ark. 743, 574 S.W.2d 265 (1978).
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lodge. The fact that the person discharging the pistol was inside the vehicle at the time of the
accident did not make the injury one “arising out of the ownership, maintenance, or use” of
the camper.
In Carter v. Grain Dealers Mutual Insurance Company,12 two men were riding home from
a party together in a car. The passenger was highly intoxicated, and at some point, the driver
pulled over to the side of the road to allow the passenger to vomit. After vomiting, the
passenger grabbed a gun from under the car seat and began shooting at the driver. Both
driver and passenger ended up dead from gunshot wounds. After the driver’s family sought
recovery under the driver’s uninsured motorist insurance, we upheld the trial court’s granting
of summary judgment in favor of the insurance company. We noted that there must be a
causal connection between the injury and the operation of the vehicle for there to be
coverage. The only connection between the driver, Carter’s, death and the use of the vehicle
was that Carter and Kight, the passenger, happened to be in the vehicle when the shooting
occurred. We held that they could have just as easily been outside of the vehicle.
In Hisaw,13 our supreme court examined whether an uninsured motorist provision
covered an injury suffered by a volunteer firefighter who was injured by an inadvertently
slammed van door while at the scene of an automobile accident. The intoxicated driver of
the van had lost control of the vehicle and run off the road into a ditch. Hisaw, a volunteer
firefighter, was called to the accident scene. After the paramedics had removed the driver and
12
10 Ark. App. 16, 660 S.W.2d 952 (1983).
13
Supra.
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passenger from the van, Hisaw attempted to retrieve the vehicle’s registration information
which was located on the van’s floor. As he was leaning into the van through the middle
back door, the door swung shut due to the force of gravity and hit Hisaw in the back, causing
injuries to his neck and spine. Hisaw sued, arguing that his injury was proximately caused by
Stuthers’ drunken driving and the ensuing car wreck. The trial court granted summary
judgment in favor of the insurance company, noting that too much time had passed between
the accident and the injury to Hisaw for Hisaw’s injury to be causally linked to the use of the
van. Our supreme court reversed, concluding that the “but for” analysis was not appropriate
for determining the meaning of the phrase “arising out of” in the context of an automobile
insurance policy.
There is no Arkansas case that is squarely on point with the facts of this case.
However, we are guided by Hartford Fire and Carter. Carl’s injuries and property damages did
not arise out of the use of Phoenix’s vehicle. Although both vehicles were in use at the time
of the shooting, the shooting could have just as easily taken place outside of the vehicles.
Thus, there is no causal connection between the vehicles’ use and the shooting. Additionally,
the shooting of Carl was an intentional act, not an accident as contemplated by the policy.
Accordingly, we hold that the trial court properly granted Allstate’s summary-judgment
motion as there were no material issues of fact needing to be resolved.
Affirmed.
GRUBER, C.J., and GLADWIN, J., agree.
Ogles Law Firm, P.A., by: John Ogles, for appellants.
Barber Law Firm PLLC, by: J. Cotten Cunningham and M. Evan Stallings, for appellee.
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