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Willard v. Kelley12/4/1990
CERTIORARI IS GRANTED. THE COURT OF APPEALS' OPINION IS VACATED; THE TRIAL COURT'S SUMMARY JUDGMENT AGAINST THE INSURER IS REVERSED; CAUSE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS PRONOUNCEMENT.
The opinion of the court was delivered by: OPALA, Vice Chief Justice.
On affirmance of summary judgment for the insured, the insurer urges on certiorari that the evidentiary materials in the record support but a single inference that the harm for which recovery is sought did not "arise out of the use of an uninsured automobile." Although we reject the insurer's proposition, we reverse the summary judgment and remand this cause for trial.
I. ANATOMY OF LITIGATION
A. The facts affecting the claim
While on patrol, police officer George Ray Willard spotted a vehicle driven by then-suspected armed robber, Mark Wesley Kelley. As Willard attempted to stop him, a chase ensued. After colliding with two other cars, Kelley's automobile came to a temporary halt. The patrol car stopped behind it. Willard quickly drew his weapon as he stepped out beside his car. He then heard a gunshot and felt his left arm drop from its raised position. Although he immediately ducked behind his car door, more bullets were fired from Kelley's automobile. Several of them, penetrating the car door, struck Willard.
B. The case before the trial court
Willard and his wife, Carol, [collectively called insured] sued both Kelley and their personal automobile insurance carrier, Prudential Property and Casualty Insurance Co. (insurer or Prudential). From the latter they sought to recover the limits of the policy's uninsured motorist (UM) coverage for bodily injuries sustained in the shooting incident. Willard alone pressed for recovery under the medical payments coverage. Without affecting any issue in controversy between Prudential and its insured, default judgment was taken against Kelley, and, since the latter did not appeal, that judgment now stands as final.
The remaining parties in the lawsuit (the insured and insurer) stipulated to these facts: 1) at the time of the shooting Kelley was an uninsured/underinsured motorist within the meaning of the UM statute, 36 O.S. 1981 ยง 3636 , 2) from within an auto mobile, Kelley "shot . . . Willard several times thus inflicting wounds [upon several parts of his body]" while the latter was beside his patrol car and 3) the damages sustained by the insured "equal or exceed" the limits of the insurance policy's UM and medical payments coverages.
Each party sought summary judgment. The insurer argued that coverage is afforded neither by the UM statute nor by the insurance policy, which contains the following provision:
"[Insurer is obligated] o pay all sums which the insured . . . shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury . . . sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile. . . ." (Emphasis added.)
Prudential maintained that, as a matter of law, Kelley's act of shooting from an automobile does not constitute a "use" which gives rise to UM liability within the meaning of the quoted policy language. The insured, on the other hand, urged that the injurious event should be viewed as an "accident" stemming from Kelley's "continuous and uninterrupted" operation and use of an uninsured vehicle. The policy does not define the term "accident."
Prudential's refusal to pay Willard under the medical payments coverage appears to have b
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