Being Shot from a Passing Car is Not a Viable UM Claim

A Gun – Whether in a Car of Not – is not Operation of a Motor Vehicle

Insurance is important because it protects the insured against many risks of loss like injury from a hit and run by an uninsured motor vehicle. Insurance does not, however, protect against every potential risk of loss.

In Joan Jones McGuire, et al. v. Motorists Mutual Insurance Company, et al., No. 29165, 2021-Ohio-3945, Court of Appeals of Ohio, Second District, Montgomery (November 5, 2021) Joan Jones McGuire and William McGuire appealed from the trial court’s entry of summary judgment against them on their complaint seeking uninsured-motorist benefits from Motorists Mutual Insurance Company. The appellants contended that their Motorists Mutual automobile insurance policy extended uninsured-motorist coverage to Joan McGuire, who was shot by an occupant of an unidentified motor vehicle. The trial court found that no coverage existed.

Factual and Procedural History

On February 3, 2018, Joan McGuire was a passenger in a vehicle driven by her husband, William McGuire. The vehicle was covered by a Motorists Mutual insurance policy. William was the named insured under the policy, which included uninsured-motorist coverage. As the McGuires were traveling on Third Street in Dayton, Ohio the occupants of two other cars exchanged gunfire. Joan McGuire sustained serious injuries when a stray bullet struck her head. The other vehicles fled the scene, and their occupants were not identified.

Following the shooting, Joan McGuire sought uninsured-motorist benefits under the Motorists Mutual policy. The insurance company denied her claim. The McGuires then sued alleging breach of contract, seeking declaratory judgment and specific performance, and asserting a claim for unjust enrichment. The trial court found no uninsured-motorist coverage for three related reasons:

  1. the shooting was an intervening cause of Joan McGuire’s injury, unrelated to the use of an uninsured vehicle;
  2. the instrumentality that caused her injury was a firearm, not an uninsured motor vehicle; and
  3. her injury did not arise out of the ownership, maintenance, or use of an uninsured motor vehicle,

Analysis

The substantive law of the claim being litigated determines whether a fact is “material. With regard to the Motorists Mutual policy, the interpretation of an automobile liability insurance policy presents a question of law that an appellate court reviews without deference to the trial court. In construing the terms of an insurance policy, the appellate court is guided by rules of contract interpretation.

Where provisions of a contract of insurance are reasonably susceptible of more than one interpretation, they will be construed strictly against the insurer and liberally in favor of the insured. This rule cannot be used, however, to create ambiguity where none exists. The fundamental goal in insurance policy interpretation is to ascertain the intent of the parties from a reading of the contract in its entirety and to settle upon a reasonable interpretation of any disputed terms in a manner calculated to give the agreement its intended effect.

The Motorists Mutual policy required the McGuires to establish that the unknown owner or operator’s liability arose out of the ownership, maintenance, or use of a hit-and-run vehicle which hit or which caused bodily injury without hitting the vehicle Joan McGuire was occupying. There was no evidence that the shooter’s vehicle made contact with the McGuire vehicle.

Although the McGuires cite cases from various jurisdictions, they failed to address the Ohio Supreme Court’s decision in Howell v. Richardson, 45 Ohio St.3d 365, 544 N.E.2d 878 (1989), which we find to be dispositive of the “ownership, maintenance, or use” issue. In Howell, a tortfeasor negligently discharged a firearm from his vehicle into another vehicle, striking one of the occupants. After obtaining a judgment against the tortfeasor, the victim sued the tortfeasor’s insurer. The trial court directed a verdict for the insurer, finding that the act of shooting from a vehicle fell outside of policy language covering bodily injury “caused by accident resulting from the ownership, maintenance or use” of a motor vehicle. The Ohio Supreme Court agreed that reasonable minds could not find the shooting resulted from the “use” of a motor vehicle. It upheld the directed verdict, finding that bodily injury to an insured resulting from the discharge of a firearm by a tortfeasor is not encompassed within the terms of a policy of insurance which limits coverage to injuries ’caused by accident resulting from the ownership, maintenance or use of an automobile.

The appellate court could see no material distinction between Howell and the present case as to whether Joan McGuire’s injury arose out of the “use” of a motor vehicle. On the basis of Howell and the other cases the court concluded that Joan McGuire’s injury did not arise out of the “ownership, maintenance, or use” of an uninsured motor vehicle as a matter of law. Her injury arose out of the use of a firearm. That being so, the trial court properly entered summary judgment in favor of Motorists Mutual on the appellants’ complaint.

As a matter of law there was no causal connection between the ownership, maintenance or use of the uninsured motor vehicle and there was no causal connection between the use of the uninsured motor vehicle and bodily injuries sustained by appellants as a result of the shooting

The trial court properly entered summary judgment against the appellants on all four claims in their complaint. The breach-of-contract claim failed because the appellants were not entitled to uninsured-motorist coverage as a matter of law. The request for declaratory judgment regarding a right to coverage properly was denied because the appellants were not entitled to uninsured-motorist coverage. The request for specific performance under the uninsured-motorist provision properly was denied because no coverage existed. Finally, the fact that an uncovered claim was denied did not establish unjust enrichment.

ZALMA OPINION

Since there was no contact between the vehicles nor did a vehicle cause an injury to Mrs. McGuire there was no potential for coverage under the uninsured motorist policy provision because it required the injury to come as a result of the vehicle not a bullet fired from an auto or any other location. It is sad that Mrs. McGuire was injured by a criminal firing a weapon at someone else and unfortunately – since most criminals are not marksmen – hit and injured her. Regardless, there was no possibility that the UM coverage applied and the court correctly affirmed the trial court.


© 2021 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders.

He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business.

Subscribe to Excellence in Claims Handling at https://barryzalma.substack.com/welcome.

He is available at http://www.zalma.com and zalma@zalma.com. Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award. Over the last 53 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.

Go to training available at https://claimschool.com; articles at https://zalma.substack.com,  the podcast Zalma On Insurance at https://anchor.fm/barry-zalma;  Follow Mr. Zalma on Twitter at https://twitter.com/bzalma; Go to Barry Zalma videos at https://www.rumble.com/zalma ; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – https://zalma.com/blog/insurance-claims-library/  The last two issues of ZIFL are available at https://zalma.com/zalmas-insurance-fraud-letter-2/  podcast now available at https://podcasts.apple.com/us/podcast/zalma-on-insurance/id1509583809?uo=4

 

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