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State Farm Mutual Automobile Insurance Co. v. McMillan9/8/1994
This is a declaratory judgment action to determine the availability of uninsured motorist benefits. Petitioner, State Farm Mutual Automobile Insurance Company, appeals from the trial court's order vacating a summary judgment entered in its favor pursuant to C.R.C.P. 60(b) and the subsequent summary judgment entered in favor of respondents, Stephanie and Tracy D. McMillan. We affirm.
On September 30, 1989, Stephanie McMillan (McMillan) was struck by a bullet while she was driving her car. The bullet was fired by an occupant of another vehicle who had been "tailgating" the McMillans and with whom the McMillans had engaged in verbal exchanges.
The insurer for the assailant's vehicle denied liability coverage. The McMillans' vehicle was insured by State Farm, and McMillan made a claim for benefits for her injuries. State Farm denied both Personal Injury Protection (PIP) benefits and benefits under the uninsured motorist coverage and then filed this declaratory judgment action to determine its liability for McMillan's injuries. The parties subsequently stipulated to the dismissal of any claims relating to PIP coverage and then State Farm filed a motion for summary judgment.
The trial court, on March 28, 1991, reserved ruling on State Farm's motion stating:
It has come to the Court's attention that a case with very similar issues was argued before the Court of Appeals on 2-25-91. Therefore, the Court will wait to rule on this issue to see if the appellate court provides any guidance on how to handle this matter.
The case to which the trial court referred, State Farm Automobile Insurance Co. v. Cung La, 819 P.2d 537 (Colo. App. 1991) (Cung La I), was announced March 28, 1991. In Cung La I, a panel of this court held that the victim of a shooting under very similar facts was not entitled to uninsured motorist benefits from his insurance carrier, State Farm.
Subsequently, on May 15, 1991, the trial court, expressly relying on Cung La I, granted summary judgment in favor of State Farm, stating:
As anticipated, the case of State Farm v. Cung La, 90CA0105, announced March 28, 1991, by the Colorado Court of Appeals, is dispositive. Under Cung La Defendant's injuries did not 'arise out of the use or operation of a motor vehicle.'
On December 2, 1991, the McMillans submitted to the trial court a "Notice to Court" advising that certiorari had been granted by our supreme court in Cung La I. Subsequently, on May 26, 1992, the court announced its decision reversing this court. Cung La v. State Farm Automobile Insurance Co., 830 P.2d 1007 (Colo. 1992) (Cung La II).
On June 29, 1992, relying on Cung La II, the McMillans filed a motion pursuant to C.R.C.P. 60(b)(4) and (5) seeking relief from the summary judgment previously entered.
In granting this motion for relief, the trial court stated:
This Court, relying on State Farm v. Cung La, 90 CA 0105, announced March 28, 1991, by the Colorado Court of Appeals, granted Plaintiff's Motion for Summary Judgment. The Court of Appeals decision was reversed by the Colorado Supreme Court on May 26, 1992. At all times, Respondent had kept this Court informed and advised as to the status of Cung La, which this Court determined was dispositive of the Motion for Summary Judgment.
After the trial court's ruling reopening the case, and based on its reading of Cung La II, State Farm moved to amend its petition for declaratory relief alleging that the injuries incurred by McMillan were not "caused by accident" that arose out of the operation or use of a moto
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