NORTH STAR MUTUAL INSURANCE COMPANY v. Peterson

#24449-a-JKM
2008 SD 36

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

NORTH STAR MUTUAL INSURANCE
COMPANY, Plaintiff and Appellee,
v.
BRAD PETERSON, LENNY
PETERSON, and DANNY PETERSON,
d/b/a PETERSON FARMS; JEB
PETERSON, MITCHELL PETERSON, Defendants and Appellees,
and
MILBANK INSURANCE COMPANY, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
BEADLE COUNTY, SOUTH DAKOTA

* * * *

HONORABLE JON R. ERICKSON
Judge

* * * *

MICHAEL J. SCHAFFER of
Schaffer Law Office, Prof., LLC Attorneys for appellee
Sioux Falls, South Dakota North Star.

RODNEY FREEMAN, JR. of
Churchill, Manolis, Freeman,
Kludt, Shelton & Burns Attorneys for appellees
Huron, South Dakota Peterson.

ROBERT B. ANDERSON of
May, Adam, Gerdes & Thompson, LLP Attorneys for defendant
Pierre, South Dakota and appellant.
* * * *
ARGUED ON OCTOBER 2, 2007

OPINION FILED 05/07/08
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MEIERHENRY, Justice

[¶1.] This case involves a question of automobile insurance coverage for

injuries sustained when a gun discharged while deer hunters were waiting to be

transported to the fields. The circuit court found that the automobile liability policy

covered the gunshot injuries.

[¶2.] Milbank Insurance Co. (Milbank) issued the automobile liability policy

in question to Peterson Farms. Brad, Lenny and Danny Peterson were general

partners in Peterson Farms. 1 In addition to the Milbank automobile liability policy,

Peterson Farms had an umbrella liability policy from North Star Mutual Ins. Co.

(North Star). The circuit court found coverage under Milbank’s personal automobile

liability policy. Milbank appeals. The court found no coverage under North Star’s

umbrella policy because of exclusions specified in the policy. 2 The ruling as to

North Star’s coverage has not been appealed.

[¶3.] In a trial to the court, the parties stipulated to most of the relevant

facts. The day before the accident, Brad Peterson had been deer hunting with his

sons Jeb and Shane. Eleven-year-old Jeb was using his father’s Winchester Model

94, .30-.30 lever action rifle to hunt varmints such as coyote or fox. While the

1. Brad, Lenny and Danny Peterson were partners in the Peterson Farms
Partnership. Brad Peterson and his immediate family and Lenny Peterson
and his immediate family lived in separate households approximately 1.5
miles from each other.

2. The circuit court found that the North Star policy provided no coverage for
the injuries because it contained language that excluded coverage for bodily
injuries resulting from the ownership, operation, maintenance, use, and
loading or unloading of a vehicle. Peterson Farms did not appeal the circuit
court’s ruling.

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hunting party was loading the rifles into the pickup at the conclusion of the hunt, a

friend drove up and assisted young Jeb with loading the rifle into the vehicle. The

friend ejected the round out of the chamber and opened the lever. The open lever

made the rifle safe from discharge; however, its magazine still held ammunition.

The friend placed the rifle into the back seat of the Peterson’s vehicle. He propped

it near the middle of the backseat of the pickup with the barrel end on the floor and

the butt leaning against the back of the seat. The hunting party then returned to

Brad’s home driving through fields and over country roads. The rifle remained in

the vehicle.

[¶4.] The next morning, Brad, Shane and Lenny’s fourteen-year-old son,

Mitch again went deer hunting. While hunting, they walked through a slough and

got their clothing wet. They removed and threw the wet hunting clothes in the

pickup’s backseat on top of the rifle. The hunting party then returned to Brad’s

home. Later that afternoon, Brad, Shane, Mitch and Jeb prepared to go hunting

again. They got into the pickup: Brad and Shane in the front seat, Mitch and Jeb

in the backseat. The rifle was still in the backseat situated between Jeb and Mitch.

Jeb noticed that the wet hunting clothes were lying on the rifle and that the barrel

had moved sideways and was unsafely pointed at Mitch’s leg. Jeb grasped the rifle

in an attempt to reposition it away from Mitch’s leg. As he moved the rifle, it

discharged and struck Mitch’s left ankle and grazed his right ankle.

[¶5.] The pickup engine was on and idling but the pickup was not moving at

the time of the accident. The hunting party assumed that the vehicle’s movement

over the two days had jostled the rifle causing the lever to close and that their wet

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hunting clothing on top of the gun had caught and pulled the trigger. There was no

evidence that anyone had handled the gun since its placement in the pickup the day

before.

[¶6.] Milbank brought a declaratory judgment action asking the circuit

court to determine whether its automobile liability policy with Peterson Farms

covered Mitch’s bodily injuries arising from this hunting accident. The dispute

centers on the language in Milbank’s insurance policy defining coverage. The terms

of the policy provide that “[Milbank] will pay damages for ‘bodily injuries’ or

‘property damage’ for which any insured becomes legally responsible because of an

auto accident . . . .” The policy further defines an “insured” as “you or any family

member for the ownership, maintenance or use of any automobile or trailer.”

[¶7.] The circuit court determined that Milbank was liable under the terms

of the insurance policy. The court reached that conclusion by finding ambiguity in

the term “auto accident,” in part because it was undefined in the policy. The court

then applied the rules of construction for insurance contracts and interpreted the

ambiguous term in the insured’s favor. Milbank argues that the circuit court

erroneously found that the term, “auto accident,” was ambiguous solely because it

was undefined in the policy. Milbank claims that the plain meaning of the policy’s

term “auto accident” does not cover the accidental shooting. Milbank raises the

following issue on appeal:

ISSUE

Whether the circuit court erred in holding that the shooting incident of
November 24, 2001, was the result of an “auto accident” as that term is
used in the Milbank insurance policy.

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[¶8.] Our standard of review is de novo. We review a declaratory judgment

under SDCL 21-24-13 “as we would any other judgment or order.” Gloe v. Union

Ins. Co., 2005 SD 30, ¶7, 694 NW2d 252, 256. “When interpreting insurance

contracts, we have uniformly held them reviewable as a matter of law under the de

novo standard.” Opperman v. Heritage Mut. Ins. Co., 1997 SD 85, ¶3, 566 NW2d

487, 489 (citing De Smet Ins. Co. v. Gibson, 1996 SD 102, ¶5, 552 NW2d 98, 99)

(other citations omitted).

[¶9.] The circuit court determined that since the Milbank policy did not

define the term “auto accident,” the term was ambiguous and construed the term

broadly in favor of the insured to find coverage. Milbank argues that the absence of

a definition in the policy does not render the term ambiguous, and that the plain

meaning of the term excludes coverage. Generally, we agree that the mere absence

of a definition does not alone create ambiguity.

[¶10.] Ambiguity is created when the language in an insurance contract “is

fairly susceptible to two constructions.” Nat’l Sun Indus., Inc. v. South Dakota

Farm Bureau Ins. Co., 1999 SD 63, ¶18, 596 NW2d 45, 48 (citing Econ. Aero Club v.

Avemco Ins. Co., 540 NW2d 644, 645 (SD 1995) (citations omitted)). Ambiguity is

“determined with reference to the policy as a whole and the plain meaning and

effect of its words.” Id. By the terms of the policy, Milbank agreed to “pay damages

for ‘bodily injuries’ or ‘property damage’ for which any insured becomes legally

responsible because of an auto accident . . . .” Although the parties disagree on the

meaning of the terms, their meaning can be determined without resorting to an

ambiguity analysis.

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[¶11.] Milbank argues that the accidental discharge of the firearm in the

backseat of the vehicle cannot be considered an “auto accident” as that term is

defined under any common sense analysis. Milbank views the situation as one

where an accident took place in an automobile and did not constitute an automobile

accident. Milbank claims that the auto was merely the site of the occurrence and

that there was no causal connection between the vehicle’s use and the injury-

producing event.

[¶12.] Nevertheless, Milbank does not dispute that the policy covers accidents

arising out of the “ownership, maintenance and use” of the vehicle. Milbank

conceded during oral arguments that the statutory language covering “damages

arising out of the ownership, maintenance, or use of the vehicle,” must be

considered when interpreting the insurance policy and that the language was, in

effect, part of the policy. SDCL 32-35-70. Additionally, the policy uses these terms

in its definition of insured. The Milbank policy defines “insured” as “you or any

family member for the ownership, maintenance or use” of a vehicle. The policy also

provides that “[w]hen this policy is certified as future proof of financial

responsibility, this policy shall comply with the law to the extent required.” South

Dakota law of financial responsibility requires insurance “against loss from the

liability imposed by law for damages arising out of the ownership, maintenance, or

use of the vehicle or vehicles . . . .” SDCL 32-35-70. Thus, a fair interpretation of

the term “auto accident” would be an accident arising out of the “ownership,

maintenance and use” of the automobile.

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[¶13.] In Lyndoe v. American Standard Ins. Co., we analyzed insurance

coverage of an accidental shooting in an automobile. 90 SD 644, 245 NW2d 273

(1976). In that case, Loren Lyndoe was riding through downtown Custer in a truck

driven by his brother, James. Lyndoes pulled their vehicle over to the side of the

road to talk to an acquaintance in another vehicle. Id. at 645, 245 NW2d at 273-74.

While the vehicles were parked side by side, the acquaintance attempted to hand a

.38 caliber pistol through his driver’s side window to Loren. Loren reached for the

gun through his window. Before Loren touched the gun, it discharged and struck

Loren in the mouth.

[¶14.] The policy language in Lyndoe provided as follows:

The company shall pay on behalf of the insured all sums which
the insured shall become legally obligated to pay as damages
because of:
Coverage A – bodily injury caused by accident and arising out of
the ownership, maintenance or use of the automobile.
‘(U)se’ of the automobile includes loading and unloading.

Id. at 647, 245 NW2d at 275.

[¶15.] Although much of the analysis in Lyndoe centered on whether passing

the gun into the window constituted “loading or unloading” the vehicle, the basic

question was whether the accident arose out of the “use” of the vehicle. Id. We

said, “[s]ome causal connection between the ‘use’ of the vehicle . . . and the accident

must exist.” Id. (citations omitted). We also adopted a broad view of the ‘use’ clause

in automobile coverage policies. Id. at 650, 245 NW2d at 276. We noted as follows:

Some of the cases [from other jurisdictions] involved efforts by a
plaintiff to include his injuries within an automobile policy
providing coverage under a ‘use’ clause, while others involved an
effort by an insurer to exclude injuries from a homeowner’s
policy because of a clause excluding automobile ‘use.’ In the

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latter policy the ‘use’ clause is given a narrow interpretation,
while in the former, courts have adopted a broader
interpretation. Therefore the broader view of the ‘use’
clause must be adopted in this case.

Id. at 649-50, 245 NW2d at 276 (emphasis added).

[¶16.] Even under the broader view, we determined that the vehicle in

Lyndoe was the mere situs of the accident and the injury did not arise from the ‘use’

of the vehicle. Id. We analyzed it as follows:

Here the parties were within the City of Custer and not on a
hunting expedition. They were merely discussing past and
possible future hunting. The pistol was not to be delivered for
the purpose of hunting nor for any use other than an
examination by plaintiff followed by a return to Stender. It has
been held that under a “loading and unloading” clause, the
efficient and predominating cause of the accident must arise
from the “use” of the vehicle. (citations omitted). Stender’s
actions were a continuation of the conversation between the
parties and could well have taken place elsewhere except for the
temporary storage of the pistol in the vehicle. His independent
act of reaching out the window of the vehicle was the event
which discharged the pistol. Only his hand and arm extended
outside the vehicle. Plaintiff admitted that he could have
reached the pistol from his vehicle which was approximately two
feet away. The vehicle was merely the [s]itus from which
Stender reached in attempting to deliver the pistol to plaintiff.
We find this case more analogous to those cases where a gun
was passed or moved within a vehicle than to those cases where
a person stepped from his vehicle and attempted to remove a
gun. We conclude that the policy’s provisions cannot be
interpreted so broadly as to allow coverage here.

Id.

[¶17.] Milbank argues that Lyndoe supports its analysis and the absence of

coverage because Lyndoe distinguishes between cases where firearms discharge

while loading and unloading them from vehicles and cases where firearms discharge

while being handled inside the automobile. Generally, cases from other

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jurisdictions that concern coverage of hunting accidents fall into categories. The

Supreme Court of New Mexico lists the categories as follows:

1) accidents in which the actual movement of the vehicle caused
the firing of the gun, as in transport; 2) accidents in which the
discharged gun was being removed from or placed in a gun rack
in the vehicle; 3) accidents in which the gun was being loaded
into or unloaded from the vehicle; 4) accidents arising from use
of the vehicle as a gun rest; and 5) accidents in which the vehicle
is described as a “mere situs” for the accident, such as when
children play with guns in a standing vehicle.

Sanchez v. Herrera, 783 P2d 465, 467 (NM 1989) (citation omitted). See also

Cameron Mut. Ins. Co. v. Ward, 599 SW2d 13, 15-16 (MoCtApp 1980) (the court

analyzed and categorized cases from several jurisdictions).

[¶18.] Milbank urges us to adopt the nexus test set forth by the South

Carolina Supreme Court in Peagler v. USAA Ins. Co., 628 SE2d 475 (SC 2006). The

Peagler court used a three-part test previously adopted in State Farm Fire & Cas.

Co. v. Aytes, 503 SE2d 744 (SC 1998) to determine whether an injury arose from the

“ownership, maintenance, or use” of a vehicle. Peagler, 628 SE2d at 477. The court

explained the test as follows: “The party seeking coverage must show (1) a causal

connection exists between the vehicle and the injury, (2) no act of independent

significance breaks the causal link between the vehicle and the injury, and (3) the

vehicle was being used for transportation purposes at the time of the injury.” Id. at

478 (citing Aytes, 503 SE2d at 745). The Peagler court specifically rejected

precedent of other courts that find coverage when accidents occur during the

loading and unloading of a vehicle. 628 SE2d at 480. The court narrowly limited

coverage to instances where the plaintiff could demonstrate that the vehicle “was an

active accessory to the injury.” Id. at 481.

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[¶19.] The three-part test followed in Peagler is unique to South Carolina law

dating back to 1975. See Home Ins. Co. v. Towe, 441 SE2d 825, 827 (SC 1994); see

also Chapman v. Allstate Ins. Co., 211 SE2d 876 (SC 1975). Most jurisdictions do

not use such a restrictive test. We find this restrictive and narrow approach not in

sync with Lyndoe, where we clearly adopted a broad view when applying a “use”

clause in an automobile liability policy. Nevertheless, even with a broad

interpretation, a plaintiff still has to show some causal connection between the

injury and the vehicle.

[¶20.] Other courts have recognized a causal connection and found coverage

when a gun discharges in a vehicle in conjunction with a hunting expedition. We

referred to this causal connection by implication in Lyndoe. Our language in

Lyndoe implied that if the parties had been on a hunting expedition, our analysis

would have been different. We said:

Here the parties were within the City of Custer and not on a
hunting expedition. They were merely discussing past and
possible future hunting. The pistol was not to be delivered for
the purpose of hunting nor for any use other than an
examination by plaintiff followed by a return to Stender.

Lyndoe, 90 SD at 650, 245 NW2d at 276 (emphasis added).

[¶21.] Mitch Peterson’s injury undisputedly occurred during the “use” of the

vehicle on a hunting trip. Whether the vehicle was more than “mere situs,”

however, requires additional analysis. For purposes of coverage under the policy,

there must be a causal connection between the accident that injured Mitch Peterson

and the use of the pickup truck. Other jurisdictions have required “for coverage to

apply, ‘[t]he injury must also have a causal connection to the inherent use of the

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vehicle.’” Kemp v Feltz, 497 NW2d 751, 755 (WisCtApp 1993) (holding that use of a

truck as a “mobile hunting vehicle is consistent with the truck’s inherent use” for

transportation of hunters); see, e.g., Sanchez, 783 P2d at 467 (concluding “that

emptying a gun within the cab of a pickup truck is foreseeably incident to use of

that vehicle for hunting”); Allstate Ins. Co. v. Powers, 949 P2d 521, 524 (ArizCtApp

1998); Taliaferro v Progressive Specialty Ins. Co., 821 So2d 976, 978 (Ala 2001). We

find this causal connection analysis more persuasive than the narrow three-part

test used in Peagler. 628 SE2d 475.

[¶22.] The Kansas Supreme Court, in a strikingly similar hunting accident

case, applied a causal connection analysis to find coverage. Garrison v. State Farm

Mut. Auto. Ins. Co., 907 P2d 891 (Kan 1995). In Garrison, two men were hunting

doves. They stopped the car for one of the hunters to get out. A gun stowed

between the front seats of the vehicle discharged while one of the men was getting

out of the car. No one knew why the gun discharged. The discharge struck the

other passenger in the leg causing serious injury. Id. at 893. The terms of the

liability policy were similar to Milbank’s policy. The policy covered damages “which

an insured becomes legally liable to pay because of . . . bodily injury to others . . .

caused by accident resulting from the ownership, maintenance or use of your car.”

Id. The policy also “promise[d] to pay damages for bodily injury . . . for which the

law holds you responsible because of a car accident . . . .” 3 Id. at 894. The court

explained the causal connection as follows:

3. The policy defined “car accident” as “an unexpected and unintended event
that causes injury or property damage and arises out of the ownership
(continued . . .)
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[F]or insurance coverage to exist for accidental bodily injury,
there is no requirement that the vehicle be either the proximate
cause of the injury or physically contribute to the discharge of
the gun. Coverage exists where the minimal causal connection
between the use of the vehicle and injury is provided by the
foreseeable and reasonable use of the vehicle for hunting.

Id. at 895.

[¶23.] The court found that the car was more than the mere situs of the

injury, and endorsed the statement that “Kansas follows the majority rule that

there must be some causal connection between the use of the insured vehicle and

the injury.” Id. at 895 (citation omitted). The court held that “under the facts of

this case, the injury sustained by Garrison, the driver, when a shotgun inside the

car accidentally discharged as it was removed from the car, was a natural and

reasonable incident arising out of the use of the car for hunting.” Id. at 896.

[¶24.] Other courts have used a similar inquiry. See Thompson v. State Farm

Mut. Auto. Ins. Co., 468 NW2d 432, 435 (Wisc 1991). The Wisconsin Supreme

Court found automobile liability insurance coverage for a hunting accident because

using a truck “for a hunting trip is reasonably consistent with the inherent use of

the truck.” Id. In Allstate Ins. Co. v. Truck Ins. Exchange, the Wisconsin Supreme

Court considered whether an accidental shooting on a hunting trip in a van was

covered by the “use” provision in the insured’s automobile liability policy. 216

NW2d 205 (Wis 1974). In that case, the passenger accidentally shot the driver

while unloading the rifle from the vehicle for the purposes of shooting an elk. The

________________
(. . . continued)
maintenance, or use of a car or other motor vehicle.” Garrison, 907 P2d at
894. “The policy provisions did not expressly define ‘use’ to include loading or
unloading of a vehicle.” Id. at 894.

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Wisconsin Supreme Court held that the use of a van for carrying hunters and guns

when the van was outfitted for hunting “was reasonable and could be expected.” Id.

at 210. The court found coverage “[i]f it can reasonably be expected that this van

would be used to go on such a hunting outing, the necessary incidentals for such a

hunting trip will be transported in the van, i.e., rifles, ammunition, equipment and

supplies.” Id. The court used the following test to determine whether the “use” of

the vehicle was the cause of the bodily injuries:

In determining whether the negligent act that caused bodily
injury arose out of the ‘use’ of a motor vehicle within the
coverage of a motor vehicle liability policy, the court must
consider whether it was a natural and reasonable incident or
consequence of the use of the vehicle for the purposes shown by
the declarations, though not foreseen or expected. Thus, it has
been held that one who entered an automobile in order to move
it a short distance so as to enable him to park his own
automobile was ‘using’ such when, because of defective brakes,
the car rolled into a third car and caused injuries thereto.
However, it has been held that an injury need not be the direct
and proximate result, in a strict legal sense, of the use of an
automobile to come within coverage of a policy indemnifying
against liability for damages caused by accident and arising out
of the ownership, maintenance or use of the automobile. This
principle has been applied in cases where the injuries for which
recovery was sought did not result from the movement of the
vehicle.

Id. at 211 (citation omitted). The court concluded that this accidental shooting fell

within the “use” provision of the automobile liability policy. Id. The gun’s

accidental discharge was a natural and reasonable consequence of transporting

guns on a hunting trip. Id. The New Mexico Supreme Court posed the inquiry as

follows: “the proper inquiry in hunting accidents involving automobiles is whether

the use made of the vehicle at the time of the accident logically flows from and is

consistent with the foreseeable uses of that vehicle.” Sanchez, 783 P2d at 467.

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[¶25.] In the circuit court’s memorandum decision it stated: “Having

reviewed [the pertinent cases] it is my conclusion that there is coverage for this type

of accident under the Milbank policy because it clearly happened on a hunting

expedition.” Furthermore, the circuit court concluded: “that the vehicle was not the

mere situs of the accident, but that the loading of the rifle into the vehicle, its

location in the vehicle and its movement were part of the use of the vehicle in the

hunting expedition.” We agree with the circuit court’s logical conclusion that the

vehicle was being used in a hunting expedition. The parties stipulated facts

provided that at the time of the shooting “[t]he four occupants were all seated in the

pickup. They were waiting for Trent Peterson to enter the pickup so they could

leave to go hunting.” (Emphasis added). The stipulated facts also indicated that the

afternoon hunt was a continuation of the morning hunting expedition. Temporarily

stopping the vehicle for a brief snack break did not eliminate the purpose for which

the gun was loaded and present in the vehicle. At the time of the accident, the

hunters were preparing to continue the hunting expedition: the hunters had

entered the vehicle, the guns were still in the vehicle, the vehicle was running and

the party intended to continue the morning hunt as soon as the final passenger got

into the pickup.

[¶26.] Clearly, an inherent use of a pickup truck is for transportation, which

may involve driving through fields and over country roads. Here, the vehicle was

being used to transport deer hunters to the field along with their equipment,

clothing and guns. Transporting hunters and guns is a foreseeable and inherent

use of a pickup truck in this State. Thus, it logically follows that when a pickup is

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being used in a hunting expedition where guns are being transported, the accidental

discharge of the firearm can be said to be causally connected to the vehicle’s use.

The vehicle need not be the cause of the discharge only that its use is causally

connected.

[¶27.] The circuit court found that the Milbank policy covered the hunting

accident because the accident occurred in connection with the use of a vehicle in

conjunction with a hunting expedition, and because the vehicle was more than the

mere situs of the accident. 4 Based on the undisputed facts and the language of the

policy, we affirm.

[¶28.] GILBERTSON, Chief Justice, and SABERS, Justice, concur.

[¶29.] KONENKAMP and ZINTER, Justices, dissent.

ZINTER, Justice (dissenting).

[¶30.] Was this shooting an “auto accident”? I agree that the “use” of a

pickup for hunting is foreseeable, and that the transportation of firearms may be

incident to use of a vehicle if the vehicle is actually being used on a hunting

expedition. Under the undisputed and stipulated facts, however, this case involved

4. The circuit court also found that the vehicle was the “efficient and
predominating cause” of the accident. In Cain v. Fortis Ins. Co., we held this
doctrine did not apply to health insurance policies. 2005 SD 39, 694 NW2d
709. We stated, “[t]he doctrine of efficient proximate cause has been utilized
in cases involving property and casualty insurance policies.” Id. ¶25, 694
NW2d at 714. It is applied “where two separate or distinct perils could have
occurred independently of the other and caused damage.” Id. In dicta in
Lyndoe we cited to this standard. 245 NW2d at 276. We decline to discuss
whether the “efficient and predominating cause” doctrine applies in this
context because it is not properly before the Court.

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the accidental discharge of a firearm that was merely being repositioned in a pickup

that was still parked in the insured’s driveway before the pickup even left for the

hunting expedition. Therefore, under all analogous cases, the shooting was not an

“auto accident.”

[¶31.] The facts (even those established at trial) are undisputed, but some

have not been mentioned by the Court. The day before this occurrence, the

Petersons went to a “bale blind” they had established for deer hunting on land Brad

Peterson owned in a neighboring county. This method of hunting did not involve

the use of the vehicle other than a means of transportation to get to the blind. Once

they arrived at the location on Friday, various members of the Peterson family

hunted by standing in the blind waiting for deer to pass. On Saturday, the morning

of this occurrence, some of the Petersons hunted again at the blind. They quit

hunting that morning about 10:30 a.m. 5 and returned to Brad Peterson’s home,

where they ate, cleaned up, change clothes, and possibly took a nap. Around 2:00 or

3:00 p.m. that afternoon they decided to hunt again.

[¶32.] At the time of the occurrence that afternoon, the rifle had been in the

pickup for more than a day. Four of the Petersons were sitting in the parked pickup

in the driveway of Brad’s home. They were waiting for Trent Peterson so they could

go to Mitch Peterson’s home in order to get some dry clothes (Mitch was sitting in

the pickup without shoes or socks at the time the gun discharged). After going to

Mitch’s home, they intended to return to the bail blind to hunt. Before leaving,

5. Before they returned home that morning, they also “drove a tree belt” that
was located about one mile from the bale blind. No other type of hunting
activity was described at trial.

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however, the gun accidentally discharged. At the time of the discharge, they were

not loading or unloading the vehicle, the pickup was not moving, and the rifle was

not jostled or moved as any occupant entered the vehicle. As they sat in the pickup

waiting for Trent, Jeb Peterson noticed that the barrel of the rifle was pointed “in

an unsafe position.” As he attempted to reposition the gun, it discharged. Jeb

testified that the only reason he attempted to reposition the gun was because of its

position: it was pointing towards Mitch’s legs. Under these circumstances, where

the vehicle was not actually on the hunting expedition and was the mere situs of the

occurrence, virtually all cases hold that the causal connection between the vehicle’s

“use” and the injury-producing event is insufficient for this occurrence to be

considered an “auto accident.”

[¶33.] Today’s Court engages in causation analysis under the “use” clause, 6

but “stretch[es] far to find the requisite causal connection.” Brenner v. Aetna Ins.

Co., 8 ArizCtApp 272, 276, 445 P2d 474, 478 (1968). As Brenner noted:

6. I decline to join the Court’s incorporation of use clause language into the
“auto accident” provision of this policy through the policy’s definition of an
“insured.” See supra ¶12. As a Washington Court of Appeals noted:

[The injured party] argues . . . that the policy definition of
“injured person” gives a broader meaning to the term
“automobile accident” and, thus, brings him, by implication,
within the personal injury protection of the policy. An “injured
person” is defined in the policy as “an insured person who is
injured by accident while occupying or being struck by an
automobile.” This language, however, does not broaden the
scope of coverage defined in the policy . . . which provides:

We will provide the benefits described below for injury to each insured
person caused by an automobile accident.
(continued . . .)
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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.

Id. Simply stated, a reasonable and ordinary person would not consider this

occurrence to have been caused by the use of an automobile, and certainly would not

consider this an “auto accident.”

[¶34.] Although the facts in the cases are varied driving different results, the

rule of law governing the accidental discharge of firearms in motor vehicles is

remarkably consistent. Virtually all courts apply a causal connection requirement

in interpreting automobile insurance “use” clauses: a requirement that the shooting

arise out of the ownership, maintenance or use of the automobile. In defining that

causal connection requirement, most courts recognize that the use of a vehicle for

________________
(. . . continued)

Farmers Ins. Co. of Washington v. Grelis, 43 WashCtApp 475, 478-79, 718
P2d 812, 813 (1986). Similarly, the definition of an “insured” under the
Milbank policy does not purport to broaden the scope of coverage for “auto
accidents.”

Nevertheless, I agree with the Court’s alternative reason for incorporation of
the use clause in this case. Use clause language (“ownership, maintenance or
use”) is incorporated in all South Dakota auto policies under SDCL 32-35-70
(requiring insurance “against loss from the liability imposed by law for
damages arising out of the ownership, maintenance, or use of the vehicle[.]”)
See also State Farm Mut. Auto. Ins. Co. v. Centennial Ins. Co., 14
WashCtApp 541, 542-43, 543 P2d 645, 646 (1975) (concluding that statute
requiring coverage for “all sums which the insured shall become legally
obligated to pay as damages because of bodily injury sustained by any person
‘arising out of the ownership, maintenance or use, . . .’ including the loading
and unloading of any insured vehicle” . . . effectively mandates that motor
vehicle liability policies contain the quoted phrase).

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hunting is foreseeable, and that the transportation of firearms may be incident to

use of a vehicle if the vehicle is being used on a hunting expedition. Therefore, the

cases require that at the time of the injury there must be a connection to the

“inherent use of the vehicle” and that the act must be “incident to the use of the

vehicle.” See supra ¶21. A sufficient causal connection exists only when there is

“foreseeable and reasonable use of the vehicle for hunting.” See supra ¶22 (citing

Garrison v. State Farm Mut. Auto Ins. Co., 907 P2d 891, 895 (Kan 1995) (emphasis

added)). 7

[¶35.] In this case, that causal connection was not established. The

undisputed facts, as previously mentioned, reflect that at the time of the occurrence

the vehicle was still parked in the driveway of Brad’s home. Moreover, the

stipulation of the parties and the record reflect that Peterson family members had

7. The Minnesota Supreme Court adopted a consistent, but more comprehensive
causal connection test:

In general terms, it has been established that such relationship
need not be a proximate cause in the strict legal sense. Rather,
it is sufficient to establish that the injury or loss ‘was a natural
and reasonable incident or consequence of the use of the
(insured) vehicle.’ It has been said that the causal connection
must be ‘reasonably apparent,’ and that ‘the mere fact that the
use of the vehicle preceded the harm which was later sustained
is not sufficient to bring such harm within the coverage of the
policy.’ It has also been held that the policy term ‘arising out of’
means ‘originating from,’ or ‘having its origin in,’ ‘growing out
of,’ or ‘flowing from.’

National Family Ins. Co. v. Boyer, 269 NW2d 10, 15 (Minn 1978) (citing
Assoc. Ind. Dealers v. Mut. Serv. Ins., 304 Minn 179, 181, 229 NW2d 516, 518
(1975)).

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#24449

been engaged in at least two separate hunts, and were only intending to engage in a

third. The parties’ stipulation states:

Various members of the Peterson family had been hunting the
previous day on November 23, 2001. Some of those same
members of the Peterson family also hunted in the morning of
November 24, 2001, prior to the shooting incident involving
Mitchell Peterson.

Stipulation of Facts ¶21 (emphasis added). The record explains that during the

first hunt on Friday, November 23, 2001, Brad took his sons Shane and Jeb. Later,

hunting in the afternoon, they met Leland Menske. Leland drove separately, and

“he was in the bales stand with us.” Brad, Shane, and Jeb then drove home that

night together.

[¶36.] Early Saturday morning, Brad left with Shane to pick up Mitch at a

separate residence. On this second hunt, Brad, Shane, and Mitch hunted together.

Jeb went hunting with Leland in Leland’s vehicle, and the parties later joined

together. They quit hunting around 10 or 10:30 in the morning and returned to

Brad’s home. Thus, notwithstanding the Court’s contrary appellate findings, these

parties stipulated that at the time the rifle discharged, the morning hunt had

concluded, the Petersons had retired to their home, the pickup was parked in the

driveway of their home and was not moving. Although the Petersons intended to

hunt at the bale blind again that afternoon, they had not left to begin hunting.

Under these facts, every similar case has concluded that the accident was not

causally connected to the use of the vehicle. The courts have uniformly held that

such vehicles were the mere situs where an accidental discharge of a firearm

occurred.

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[¶37.] The Missouri Court of Appeals has catalogued the cases involving the

discharge of firearms in motor vehicles. See Cameron Mut. Ins. Co. v. Ward, 599

SW2d 13 (MoCtApp 1980). The facts of today’s case fall within the first category of

cases involving “the accidental discharge of guns inside moving or motionless

vehicles while an occupant of the vehicle is handling or toying with the gun.”

Cameron, 599 SW2d at 15. As Cameron observed, “[w]ithout exception, these cases

hold that no coverage exists under the insuring agreements of the respective

automobile liability policies involved because there was no causal connection

between the discharge of the guns and the use of the vehicles . . . .” Id. Rather, “at

best, the vehicles were merely the ‘situs’ or ‘locus’ of any resultant injuries as

discharge of the guns was unconnected with the inherent use of the vehicles.” Id.

[¶38.] Those cases, involving both hunting and non-hunting handling of

firearms inside a vehicle, find no causal relationship under the facts we consider

today. See Western Cas. & Sur. Co. v. Branon, 463 FSupp 1208, 1211 (EDIll 1979)

(holding accidental discharge of firearm in moving motor vehicle did not implicate a

sufficient causal connection to fall within the automobile use clause: “[A] fortuitous

accidental shooting does not, merely because it takes place in a car, arise out of the

use of the automobile.”); Am. Liberty Ins. Co. v. Soules, 288 Ala 163, 168, 258 So2d

872, 876 (1972) (holding that injuries sustained when pistol discharged as occupant

pushed pistol down the back of the seat, at time automobile was parked, was not

causally connected with use of the automobile: “[O]ccupant of an automobile

injured by discharge of a firearm by another occupant [does not] constitute an injury

arising out of the use of the insured automobile, for the reason that there is no

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#24449

causal relation between the use of the automobile and the injury.”); Hartford Fire

Ins. Co. v. State Farm Mut. Auto., 574 SW2d 265 (Ark 1978) (holding accidental

discharge of firearm inside vehicle does not fall within the use clause); Azar v.

Employers Cas. Co., 178 Colo 58, 61, 495 P2d 554, 555 (1972) (holding that even

while engaged in a hunting enterprise, accidental discharge of firearm inside

stopped vehicle does not fall within the causal connection requirement of the use

clause: “[I]t cannot reasonably be said that the discharge of the weapon in this case

originated from, grew out of or flowed from the use of the vehicle. Rather, the

injury originated from, grew out of or flowed from the use of the firearm.”); Mason v.

Celina Mut. Ins. Co., 161 Colo 442, 423 P2d 24 (1967) (holding that even when

returning from pistol target practice, an accidental discharge in vehicle that was

parked until one of the occupants returned did not implicate the causal connection

required to fall within the use clause) (citing 7 APPLEMAN, INSURANCE LAW AND

PRACTICE § 4317, at 144, 146, for the proposition that the accident must have arisen

“out of the inherent nature of the automobile . . . in order to bring one within the

terms of such a policy.”); U.S. Fid. & Guar. Co. v. W. Fire Ins. Co., 450 SW2d 491

(KyCtApp 1970) (holding accidental discharge of gun when occupant began to load

the gun was not sufficiently connected to the automobile to be considered to have

been a use within the contemplation of the parties to the automobile insurance

contract); Nat’l Family Ins. Co. v. Boyer, 269 NW2d 10, 15 (Minn 1978) (holding no

relationship between the use of gun and the use of the parked automobile; the

automobile was the mere situs of the injury); Nat’l Union Fire Ins. Co. of

Pittsburgh, Pa. v. Bruecks, 179 Neb 642, 139 NW2d 821 (1966) (holding that even

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broadly construing the use clause, a gun discharge while a hunter was unloading it

inside of his vehicle was not covered because the vehicle was merely the situs of the

accident; the accident did not arise out of the use of the vehicle); Raines v. St. Paul

Fire & Marine Ins. Co., 9 NCApp 27, 175 SE2d 299 (1970) (holding no coverage

under the use clause for accidental discharge of firearm in parked vehicle because

there was no causal connection between the discharge of the pistol and the

“ownership, maintenance or use” of the parked automobile); and State Farm Mut.

Auto Ins. Co. v. Centennial Ins. Co., 14 WashApp 541, 543 P2d 645 (1975) (holding

no coverage under use clause in which occupant unloaded a rifle in the vehicle

causing the accidental discharge while returning from a hunting excursion).

[¶39.] The Court declines to discuss or distinguish these authorities. Instead,

the Court labels and adopts the circuit court’s conclusions of law as “logical

conclusion[s],” that this shooting “happened on a hunting expedition,” that the

“movement [of the gun was] part of the use of the vehicle in the hunting expedition,”

and therefore the pickup “was being used in a hunting expedition.” Supra ¶25

(emphasis added). These are appellate findings, and even if they were conclusions

of law, they are entitled to no deference. Marschke v. Wratislaw, 2007 SD 125, ¶8,

743 NW2d 402, 405 (additional citations omitted). No deference is especially

appropriate here because none of the historical facts established at trial are in

dispute. Under those circumstances, our task is a mixed question of fact and law:

i.e., whether the historical facts of this incident constitute an “auto accident,” a

question we review de novo. See In re Dorsey & Whitney Trust Co., LLC, 2001 SD

35, ¶6, 623 NW2d 468, 471.

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[¶40.] More importantly, this Court’s appellate findings are untethered to the

use of the vehicle at the time of the shooting, and are in conflict with the parties’

stipulation of facts and the record upon which this case was presented. For

example, the Court indicates “the afternoon hunt was a continuation of the morning

hunting expedition,” suggesting that the Petersons “[t]emporarily stopp[ed] the

vehicle for a brief snack break[.]” Supra ¶25. Similarly, the Court finds coverage

because this vehicle was actually “being used to transport deer hunters to the

field[.].” Supra ¶26.

[¶41.] Contrary to this Court’s findings, the stipulation specifically reflects

that rather than being on the hunting expedition at the time of the occurrence, the

shooting happened at a time when: “various members of the Peterson family were

preparing to return to their hunting activities,” Stipulation of Facts, No. 22, the

pickup “was not moving, was not in gear, but the engine was running,” id. No.19,

and the four occupants were all seated in the pickup in the driveway of their home

“waiting for Trent so they could leave to go hunting.” Id. No.19 (emphasis added).

Considering these stipulated and undisputed facts, the Court mistakenly premises

its holding on findings that at the time of the shooting “the vehicle was being used

to transport deer hunters to the field,” and the pickup “was being used in a hunting

expedition where guns are being transported[.]” See supra ¶26 (emphasis added).

[¶42.] Most importantly, even if the Court were correct that Petersons

intended to engage in a “continuation” of the morning hunt, the Court fails to

consider two intervening events. First, there is no dispute that Petersons ceased

hunting to rest and eat lunch, and that they had not left their home to return to the

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bale blind when the gun discharged. Second, there is no dispute that at the time of

the discharge, they were going to go to Mitch Peterson’s home to get dry clothing

before they were going to return to the bale blind to hunt. These types of

intervening events must be considered in the causation analysis in such cases. See

Norgaard v. Nodak Mut. Ins. Co., 201 NW2d 871, 875 (ND 1972) (concluding that

even while on a hunting expedition, use of a vehicle as a “gun rest” to shoot a

firearm did not provide a sufficient causal connection between the vehicle in the

accident under the use clause). The North Dakota Supreme Court noted, “the

causal relationship need not constitute a proximate cause, but on the other hand if

an injury is directly caused by some independent or intervening cause it does not

arise out of the use of an automobile, notwithstanding there may have been some

remote connection between the use of an automobile and the injury complained of.”

Id.

[¶43.] The Court also fails to apply our own precedent recognizing the

difference between being “on a hunting expedition” and “future hunting.” Lyndoe v.

Am. Standard Ins. Co. of Wisconsin, 90 SD 644, 650, 245 NW2d 273, 276 (1976).

Thus, “the proper inquiry in hunting accidents involving automobiles [requires an

examination of] the use made of the vehicle at the time of the accident[.]” Sanchez v.

Herrera, 109 NM 155, 157, 783 P2d 465, 467 (emphasis added). When that timing

examination is made, the Court’s own authorities do not support a causally related

use of the vehicle in this case.

[¶44.] For example, although the Court relies on Garrison, that case involved

the following disparate facts:

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After several stops [the occupants of the vehicle] saw some birds
and decided that Pfannenstiel would get out of the car and
Garrison would then drive on to the far end of a line of trees and
hunt there. Garrison slowed the car; as it approached or came
to a stop and Pfannenstiel was getting out of the car,
Pfannenstiel’s shotgun discharged, striking Garrison in the leg
and causing a significant injury.

258 Kan at 549, 907 P2d at 893. The Kansas Supreme Court thereafter highlighted

that different factual scenario in which a causally related use occurs because the

vehicle is actually involved in the hunt:

The injury occurred while the car was being used to transport
dove hunters during a hunting trip. Garrison was driving. The
engine was running. Garrison stopped the car while
Pfannenstiel tried to exit with his shotgun to hunt doves. The
shotgun discharged while Pfannenstiel was removing it from the
car. Garrison had intended to drive further after Pfannenstiel
was out of the car. The car was “involved,” in that the injury
occurred while Pfannenstiel was removing his shotgun from the
car and Garrison was driving the car.

Id. at 554, 907 P2d at 896. Thus, unlike today’s case, where the Petersons were still

sitting in their driveway only intending to engage in hunting at a distant location,

the parties in Garrison were actually “transport[ing] guns during a hunting trip.”

Id. at 555, 907 P2d at 896.

[¶45.] Similarly, the Court’s other primary authority, Allstate Ins. Co. v.

Truck Ins. Exchange, 63 Wis2d 148, 216 NW2d 205 (1974), concerns two individuals

who were actually pursuing an elk in a vehicle specially adapted for hunting

purposes. When the elk was located, the driver stopped the vehicle so the passenger

could remove his loaded rifle from the vehicle to shoot the elk. In attempting to

remove the rifle, it discharged, causing injury. In construing an exclusion under a

general liability policy and a use clause providing coverage in an auto policy, the

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Wisconsin court found coverage under the auto policy because persons “actively

engaged in loading and unloading the automobile in the commonly accepted

meaning of those words are considered to be using or operating the automobile and

are covered by the loading and unloading provision of the policy.” Id. at 155, 216

NW2d at 209 (emphasis added). Peterson’s occurrence is not, however, a “loading

and unloading” case, nor does it involve participants “actively engaged” in the act of

hunting.

[¶46.] Clearly, the Court’s decision is unsupported and contrary to any

authority with remotely similar facts. In light of the stipulated fact that the various

members of the Peterson family were only “preparing to return to their hunting

activities,” and in light of the undisputed fact that they were still seated motionless

in a parked vehicle in the driveway, how can the Court find coverage on contrary

findings? Under the stipulated facts, the only connection between this shooting and

the pickup was that the parties intended to use the pickup as transportation to go to

the bale blind to hunt that afternoon. At the time of the occurrence, however, the

Petersons had not started the afternoon hunting enterprise, and their intended use

that afternoon cannot reasonably be construed as an “auto accident.”

[¶47.] Even giving the language of the policy insuring “auto accidents” the

broad interpretation as required by Lyndoe, supra, the Court has stretched that

language beyond common sense and reasonable understanding. We should not

construe statutes (SDCL 32-35-70) and insurance contracts in such a manner. “We

will not resort to a forced construction of the language in [an insurance] contract for

the purpose of either limiting or extending coverage.” Gloe v. Union Ins. Co., 2005

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SD 30, ¶29, 694 NW2d 252, 260. “Insurance contracts warrant reasonable

interpretation, in the context of the risks insured, without stretching terminology.”

Zochert v. Nat’l Farmers Union Prop. & Cas. Co., 1998 SD 34, ¶5, 576 NW2d 531,

532 (citing Opperman v. Heritage Mut. Ins. Co., 1997 SD 85, ¶4, 566 NW2d 487,

490) (citing State Farm Mut. Auto. Ins. Co. v. Vostad, 520 NW2d 273, 275 (SD

1994))).

[¶48.] Today’s case is similar to an accidental stabbing that occurred in the

backseat of a vehicle in Washington. As the Washington Court of Appeals observed,

“the average person would not consider the stabbing incident in [the insured’s]

parked van as an ‘automobile accident.’ Rather, we believe the average person

would . . . say only that [the injured party] was stabbed while sitting in his

automobile.” Grelis, 43 WashApp at 478, 718 P2d at 813. Similarly, considering the

actual use of Brad’s parked pickup at the time of this occurrence, the average

person would not conclude that this shooting was an “auto accident.” The average

person would say that Mitch was shot while sitting in the backseat of a parked

pickup. Because, under the stipulated and undisputed facts, this shooting did not

occur incident to the vehicle’s actual use in hunting, I dissent.

[¶49.] KONENKAMP, Justice, joins this dissent.

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