State Farm Mutual Automobile Insurance v. Blystra , 86 F.3d 1007 ( 1996 )

PUBLISH
UNITED STATES COURT OF APPEALS
Filed 6/18/96
TENTH CIRCUIT
________________________
STATE FARM MUTUAL AUTOMOBILE INSURANCE )
COMPANY, an Illinois corporation, )
)
Plaintiff-Appellee, )
)
v. ) No. 95-2087
)
EDMOND BLYSTRA; BARBARA BLYSTRA, )
individually and as parent and natural guardian of KEVIN )
BLYSTRA, a minor, )
)
Defendants and Third-Party Plaintiff-Appellants, )
)
v. )
)
FARMERS INSURANCE COMPANY OF ARIZONA, )
)
Third-Party Defendant-Appellee. )
__________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CIV-94-1030-JP/WWD)
_________________________
Thomas L. Grisham of Grisham & Lawless, P.A., Albuquerque, New Mexico, for Appellants.
James E. Lieuwen of Pelton & O'Brien, P.A., Albuquerque, New Mexico, for Farmers Insurance
Company of Arizona, and Rudolph Lucero (Terri L.Sauer with him on the brief) of Miller, Stratvert,
Torgerson & Schlenker, P.A., Albuquerque, New Mexico, for State Farm Mutual Automobile
Insurance Company.
_________________________
Before BRORBY, BARRETT and LIVELY,* Circuit Judges.
*
The Honorable Pierce Lively, United States Circuit Judge for the Sixth Circuit, sitting by
designation.
BRORBY, Circuit Judge.
_________________________
I. Factual & Procedural Background
As Kevin Blystra was walking home from school, either the passenger or driver of a white
pickup truck shot him in the leg with a pellet gun as the truck drove by. Neither the driver nor the
passenger of the truck have been identified. At the time of the incident, Kevin was sixteen years old
and lived with his parents, Edmond and Barbara Blystra. The Blystras have incurred substantial
medical expenses as a result of the shooting.
At the time of the shooting, Edmond Blystra had two automobile insurance policies issued
by State Farm Mutual Automobile Insurance Company ("State Farm") and three automobile
insurance policies issued by Farmers Insurance Company of Arizona ("Farmers"). Kevin qualified
as an insured under the State Farm and Farmers policies. Each of the policies included uninsured
motorist coverage and medical payments coverage. The State Farm policies provided uninsured
motorist coverage pursuant to the following language:
We will pay damages for bodily injury or property damage an insured is legally
entitled to collect from the owner or driver of an uninsured motor vehicle. The
bodily injury or property damage must be caused by accident arising out of the
ownership, maintenance or use of an uninsured motor vehicle.
(Emphasis omitted.)
The uninsured motorist provision of the Farmers policies read as follows:
We will pay all sums which an insured person is legally entitled to recover as
damages from the owner or operator of an uninsured motor vehicle because of:
2
(a) bodily injury sustained by the insured person. The
bodily injury must be caused by accident and arise out
of the ownership, maintenance or use of the uninsured
motor vehicle.
(b) Property damage.
(Emphasis omitted.)
The State Farm policies did not define the term "accident." The Farmers policies defined
"accident" as "a sudden event, including continuous or repeated exposure to the same conditions,
resulting in bodily injury or property damage neither expected nor intended by the insured person."
(Emphasis omitted.) Both the State Farm and Farmers policies included "hit-and-run" incidents
within their uninsured motorist coverage provisions.
With respect to medical payments coverage, both the State Farm and Farmers policies
required that the insured sustain bodily injury "through being struck by[] a motor vehicle or trailer."
Following the shooting, the Blystras filed claims with State Farm seeking coverage under the
uninsured motorist and medical payments provisions of the State Farm policies. At the Blystras'
request, State Farm filed a complaint in the district court seeking declaratory relief with respect to
its liability for uninsured motorist and medicial payments coverage. The Blystras filed an answer
asserting coverage was appropriate and counter-claimed against State Farm, claiming State Farm
denied coverage in bad faith.2 The Blystras also filed a third-party complaint for declaratory relief
2
The district court ultimately dismissed the Blystra ' bad faith claim with prejudice, but that claim is not before
this court on appeal.
3
against Farmers, claiming Farmers was liable for uninsured motorist and medical payments benefits.
Farmers filed an answer denying the Blystras were entitled to any benefits. The Blystras filed
motions for summary judgment against State Farm and Farmers, and the insurance companies filed
cross-motions for summary judgment against the Blystras.
The district court granted State Farm's and Farmers' motions for summary judgment against
the Blystras. According to the district court:
neither the uninsured motorists nor the medical payments provisions of the State
Farm or Farmers policies cover Kevin Blystra's injuries which resulted from a drive-
by shooting. Kevin Blystra was the victim of a crime, not an accident. A drive-by
shooting was not a risk the parties reasonably contemplated as insurable.
The Blystras filed a motion for reconsideration, which the district court denied. The Blystras
appealed to this court. We exercise jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse
in part, and remand for further proceedings.
II. Standard of Review & Applicable Law
We review de novo the grant or denial of a motion for summary judgment, applying the same
legal standard used by the district court pursuant to Fed. R. Civ. P. 56(c). Reich v. Stangl, 73 F.3d
1027, 1029 (10th Cir. 1996), petition for cert. filed, No. 95-1631, 64 USLW 3709 (Apr. 9, 1996).
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). "'When applying this standard, we examine the factual record and reasonable inferences in
4
the light most favorable to the party opposing summary judgment.' If there is no genuine issue of
material fact in dispute, then we next determine if the substantive law was correctly applied by the
district court." Wolf v. Prudential Ins. Co. of Amer., 50 F.3d 793, 796 (10th Cir. 1995) (quoting
Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990)).
The district court's jurisdiction over this case was based on diversity of citizenship. 28
U.S.C. § 1332. A federal court sitting in diversity applies the substantive laws of the forum state.
Barrett v. Tallon, 30 F.3d 1296, 1300 (10th Cir. 1994). We review de novo the district court's
determinations of state law. Salve Regina College v. Russell, 499 U.S. 225, 231 (1991). Because
New Mexico is the forum state in this dispute, "we must apply the most recent statement of state
law by the" New Mexico Supreme Court. Wood v. Eli Lilly & Co., 38 F.3d 510, 513 (10th Cir.1994).
III. Analysis
We are faced with four issues, each of which derives from the language of the State Farm and
Farmers policies. Though the uninsured motorist coverage language differs slightly between the
State Farm and Farmers policies, both of the companies' policies share three essential elements that
are relevant to this case. First, Kevin Blystra's injuries must have been "caused by" an "accident."
Second, Kevin's injuries must have "aris[en] out of the ownership, maintenance, or use of" the
uninsured motor vehicle. Third, Kevin must have been legally entitled to recover damages for his
injuries from the owner or operator of the uninsured motor vehicle. With respect to the medical
payments coverage, the State Farm and Farmers policies do not provide coverage unless Kevin
sustained his injuries "through being struck by" a "motor vehicle or trailer." We begin our analysis
5
with the three issues implicated by the uninsured motorist coverage provisions.
A. Uninsured Motorist Coverage
1. Caused by an Accident
Because the district court granted State Farm's and Farmers' motions for summary judgment
after concluding Kevin Blystra's injuries were not caused by an "accident," we start with this issue.
In the time since the district court entered its final judgment in this case, the New Mexico Supreme
Court decided Britt v. Phoenix Indem. Ins. Co., 907 P.2d 994 (N.M. 1995). In Britt, a case similar
to the one at bar in several respects, the New Mexico Supreme Court was asked to decide "whether
uninsured motorist coverage extends to a victim of an intentional tort perpetrated by a passenger in
an uninsured motor vehicle." Id. at 995. On the issue of whether the intentional tort was an
"accident," the court adopted the following rule:
[I]n analyzing whether a particular incident is an "accident" for purposes of uninsured
motorist coverage, the courts should view the incident from the injured party's
perspective. Thus if the event causing the injury is unintended and unexpected from
the injured party's viewpoint, the injury is deemed to have occurred as a result of an
accident.
Id. at 997. Based on the adoption of this rule, the court concluded that injuries caused by an
intentional stabbing "arose out of an 'accident' as that term is used in the uninsured motorist
endorsements." Id.State Farm and Farmers conceded in oral argument that the Britt decision requires us to
conclude the district court applied the wrong rule of law when it decided Kevin Blystra's injuries
6
were not caused by an "accident." See Wood, 38 F.3d at 513 (in diversity case we must apply the
most recent statement of state law by the forum state's highest court). As Britt makes clear, an injury
is caused by an "accident" in New Mexico for purposes of uninsured motorist coverage "if the event
causing the injury is unintended and unexpected from the injured party's viewpoint." Britt, 907 P.2d
at 997. Given this standard, the district court erroneously concluded that an intentional criminal act
cannot be an "accident."
In his affidavit filed in support of the Blystras' motion for summary judgment, Kevin Blystra
stated, "I do not know why I was shot, whether or not the shot was intended for me or who fired the
shot. I may have been mistaken for someone else or the shots may have been randomly fired and hit
me by accident." In our view, this statement establishes Kevin neither intended nor expected to be
shot. Given that State Farm and Farmers proffered no affidavits or other documents contemplated
by Fed. R. Civ. P. 56(e) creating a genuine dispute as to whether Kevin intended or expected to be
shot, we conclude Kevin Blystra's injuries were caused by an "accident" within the meaning of the
uninsured motorist provisions of the State Farm and Farmers policies. State Farm and Farmers
contend a genuine issue of fact exists as to whether Kevin Blystra intended or expected to be shot.
In support of this contention, they suggest he may have somehow provoked his assailant. We have
seen no evidence in the record that supports this contention. We take no view on whether someone
who provokes an attacker expects or intends to be shot.
2. Ownership, Maintenance, or Use
As we move to the next issue, Britt again offers us guidance. In Britt, the New Mexico
7
Supreme Court adopted a three-part test, borrowed from Continental W. Ins. Co. v. Klug, 415
N.W.2d 876, 878 (Minn. 1987), for determining whether an insured's injuries arose out of the
ownership, maintenance, or use of an uninsured vehicle. Britt, 907 P.2d at 999. First, we must
consider "whether there [wa]s a sufficient causal nexus between the use of the uninsured vehicle and
the resulting harm." Id. To satisfy this standard, the vehicle must have been "an 'active accessory'
in causing the injury." Id. (quoting Klug, 415 N.W.2d at 878). Second, we must "consider whether
an act of independent significance broke the causal link between the use of the vehicle and the harm
suffered." Id. at 1000 (citing Klug, 415 N.W.2d at 878). Finally, we must "consider whether the 'use'
to which the vehicle was put was a normal use of that vehicle. For example, transportation would
be a normal use, whereas use of a parked car for a gun rest would not be." Id (citing Klug, 415
N.W.2d at 878).
The undisputed facts of the instant case reveal that either the passenger or driver of a pick-up
truck shot Kevin Blystra as the truck drove by him. We begin our analysis with Britt's third prong,
because it is the least disputed aspect of the necessary analysis. In fact, neither State Farm nor
Farmers contend in their briefs that this prong is not satisfied. Under Britt's third prong, we must
determine whether the use of the truck during the shooting was a "normal use" of the vehicle. Id.
At the time of the shooting, the assailant was utilizing the truck as transportation; i.e., he was using
the truck as a means "[t]o convey [himself] from one place to another." Webster's II New Riverside
University Dictionary 1228 (1984) (defining "transport"). Clearly, such use falls within Britt's
"normal use" requirement. Britt, 907 P.2d at 1000 ("transportation would be normal use"); see Klug,
415 N.W.2d at 878-79 (concluding that a motorist who shot another motorist from his moving car
8
"was using his car for motoring purposes" during the assault) (cited with approval in Britt, 907 P.2d
at 1000).
We now focus on the two remaining issues: whether there was a sufficient causal nexus
between the use of the truck for transportation and Kevin Blystra's injuries and, assuming a sufficient
causal nexus did exist, whether an act of independent significance broke the causal link. See Britt,
907 P.2d at 999-1000. For a there to be a "sufficient causal nexus between the use of the uninsured
vehicle and the resulting harm," the vehicle must have been "an active accessory in causing the
injury." Id. at 999 (internal quotation marks and citations omitted). When an automobile is used by
an assailant to undertake a drive-by shooting, the automobile is almost by definition an "active
accessory" to the assault. Through the use of an automobile, a drive-by shooter achieves several
advantages in the commission of his crime that would otherwise be unavailable to him. First, the
assailant can use the vehicle to unsuspiciously and quickly approach his victim, all the while hiding
from public observation that he is armed with a gun. Second, during the commission of the assault,
the assailant can use the vehicle to help hide his identity. Third, the assailant can use the vehicle to
leave the scene quickly and avoid apprehension. In his affidavit in support of the Blystras' motion
for summary judgment, Kevin Blystra stated: "The automobile was used to approach me head on.
The shot was fired from the moving vehicle and the vehicle was then used to escape the scene."
Under these circumstances, we conclude the white truck that transported the assailant who shot
Kevin Blystra was an "active accessory" to Kevin's assault. See Cung La v. State Farm Auto. Ins.
Co., 830 P.2d 1007, 1011 (Colo. 1992) ("it is sufficient that the claimants demonstrate that the injury
originated in, grew out of, or flowed from a use of a vehicle") (internal quotation marks and citations
9
omitted) (cited with approval in Britt, 907 P.2d at 999); Klug, 415 N.W.2d at 877-78 (assailant's car
was "active accessory" to shooting when assailant used the car to pull alongside victim's car as the
two were driving down the highway). Because the truck was an "active accessory," there was a
"sufficient causal nexus" between its use and Kevin Blystra's injuries. Britt, 907 P.2d at 999.
Finally, we ask "whether an act of independent significance broke the causal link between
the use of the" assailant's truck and Kevin Blystra's injuries. Id. State Farm and Farmers contend
the intentional shooting of Kevin broke the causal link between the assailant's use of the car and
Kevin's injuries. In support of this contention, State Farm and Farmers point us to cases relied on
by the New Mexico Supreme Court in Britt for its holding that an act of "independent significance"
can break the necessary causal nexus. To be sure, in Britt the court relied on decisions that recognize
the causal link between the use of the vehicle and the victim's injuries may be broken by an
intervening intentional tort. See id. at 1000 (citing Klug, 415 N.W.2d at 878; Kish v. Central Nat'l
Ins. Group of Omaha, 424 N.E.2d 288, 294 (Ohio 1981); United Servs. Auto. Ass'n v. Ledger, 234
Cal. Rptr. 570, 572 (Cal. Ct. App. 1987)). All of these cases, however, share an additional element
as support for their reasoning--an element we view as crucial to understanding their holdings. Given
that Klug is relied on so heavily by the New Mexico Supreme Court in Britt, see Britt, 907 P.2d at
999-1000, we find it the most instructive.
In Klug, the victim was driving home from work on the highway when his assailant pulled
alongside him and shot Klug in the arm with a shotgun. Klug ultimately escaped his assailant and
received assistance. Klug, 415 N.W.2d at 877. After concluding a sufficient causal nexus existed
10
between Klug's injuries and the assailant's use of his automobile, the court examined whether "an
act of independent significance occurred to break the causal link." Id. at 878. The court concluded
the causal link had not been broken. The court reasoned that the assailant's "actions of driving and
shooting were inextricably linked. Had [the assailant] used his vehicle to drive ahead of Klug, left
his vehicle, and shot Klug from the side of the road, we might have found an intervening act." Id.
In Klug, the Supreme Court of Minnesota drew on another of its decisions to explain its approach
to the intervening act of independent significance:
In Holm [v. Mutual Service Casualty Ins. Co., 261 N.W.2d 598, 603 (Minn. 1977)],
we found an act of independent significance where a police officer, after pursuing a
motorcycle, left his vehicle to make an arrest and committed a battery upon the
motorcyclist. We stated, "[the officer] had completely left the vehicle before he
administered the tortious battery. The police car served only to transport him to the
scene of the incident. The battery could as easily have occurred had [the officer]
come upon the stationary motorcycle on foot."
Klug, 415 N.W.2d at 878.
As Klug indicates, an intentional tort alone does not constitute an act of independent
significance sufficient to break the causal link between an assailant's use of his vehicle and the
victim's injuries. It is at least equally important that the assailant do something to disassociate the
intentional tort from his otherwise normal use of the vehicle. As Klug and Holm make clear, this
might occur if the assailant stops his vehicle and commits the tort after leaving the vehicle. In such
a case, the vehicle serves merely to transport the assailant to the scene of the crime and therefore is
not an active accessory to the resulting injuries. See Klug, 415 N.W.2d at 878 (quoting Holm, 261
N.W.2d at 603).
11
Given Britt's heavy reliance on Klug, we are convinced the Supreme Court of New Mexico
intended to adopt Klug's requirement that an intentional tort does not break the causal nexus between
an assailant's use of his vehicle and the victim's injuries unless the assailant does something to
disassociate his use of the vehicle from the commission of the tort. The other decisions cited by the
court in Britt as support for its adoption of the act-of-independent-significance inquiry confirm our
reading of Britt. In Kish, the Supreme Court of Ohio concluded no causal link existed in the case
where the assailant emerged from his stopped vehicle in a traffic dispute and fatally shot the other
driver, who had also gotten out of his vehicle. Kish, 424 N.E.2d at 289, 294. The court explained:
The relevant inquiry is whether the chain of events resulting in the accident was
unbroken by the intervention of any event unrelated to the use of the vehicle. The
application of this standard to the instant facts leads us to conclude that the
intentional, criminal act of the murderer was an intervening cause of injury unrelated
to the use of the vehicle. As the court below stated, "the death resulted from an act
wholly disassociated from the and independent of the use of the vehicle as such."
Id. at 294 (cited in Britt, 907 P.2d at 1000) (emphasis added).
Ledger, the third case cited in Britt as support for its act-of-independent-significance inquiry,
suggests the same analysis as Klug and Kish. In Ledger, two men were involved in a minor traffic
incident. The man whose car was damaged followed the other for several miles. The men eventually
pulled into a parking area, got out of their cars, and began to fight. In the course of the fight, one
combatant fatally stabbed the other. Ledger, 234 Cal. Rptr. at 570. The California Court of Appeal
concluded "there was an insufficient causal connection between the stabbing and the vehicle to
consider that the former 'arose out of the use' of the latter." Id. at 572. According to the court, "[t]he
stabbing itself, however regrettable and unfortunate, was not causally connected with [the assailant's]
12
use of the vehicle .... [T]he vehicle served only to transport [the assailant] to the scene where the
stabbing took place." Id.Our reading of New Mexico law as indicated by Britt leads us to conclude no act of
independent significance broke the causal link between Kevin Blystra's injuries and his assailant's
use of the white truck that made the drive-by shooting possible. As we have already explained, the
vehicle was an "active accessory" to the shooting. The drive-by shooter undertook no intervening
action sufficient to disassociate his use of the truck from the shooting -- the "actions of driving and
shooting were inextricably linked." Klug, 415 N.W.2d at 878.
We note that in Britt the court remanded for further factual determinations on the issue of
whether the causal link was broken and therefore did not decide the issue as a matter of law. Britt,
907 P.2d at 1000. Given the undisputed facts in the instant case, Britt does not require us to do the
same. In Britt, the assailants were passengers who got out of a car involved in an accident and
stabbed a passenger in the other vehicle. As the court noted, there was a factual dispute in Britt as
to whether the driver of the assailants' vehicle "intentionally rammed [the victim's] vehicle in
complicity with the assailants or in order to facilitate the attack." Id. According to the Supreme
Court of New Mexico, if the driver did intentionally aid the assailants
then the assailants' actions probably did not constitute an "independent intervening
cause" sufficient to cut off the nexus between the driver's actions and Britt's injuries.
If, on the other hand, the collision was accidental and the assailants developed the
intent to attack Britt after the collision, perhaps due to hot tempers resulting from the
collision, then their actions broke the causal link between the use of the vehicle and
Britt's injury.
13
Id.
The instant case suffers from no such factual dispute. Though the parties disagree over
whether the driver or passenger of the white truck shot Kevin Blystra, the dispute is immaterial to
the question of whether Kevin's injuries arose out of the assailant's use of the vehicle. Whether it
was passenger or driver who shot Kevin cannot change the fact that the vehicle was an integral
element of the drive-by shooting. The Britt court's decision to remand only reaffirms our view that
the assailant must disassociate his assault from the vehicle's use to create a break in the causal chain.
In remanding, the court merely recognized that, given the right facts, the causal chain might not be
broken even though the assailant commits his assault after exiting the stopped vehicle.
Having concluded that each element of Britt's three-part test is satisfied, we conclude Kevin
Blystra's injuries arose out of the ownership, maintenance, or use of the uninsured vehicle. See Britt,
907 P.2d at 999-1000.
3. Entitled to Recover Damages from the Owner or Operator
We now address the final issue implicated by the uninsured motorist provisions of the State
Farm and Farmers policies. Even though Kevin Blystra's injuries were caused by an "accident" and
arose out of the ownership, maintenance, or use of the uninsured vehicle, the policies confer
uninsured motorist benefits only if he would be legally entitled to recover damages for his injuries
from the owner or operator of the uninsured motor vehicle. Whether Kevin Blystra could recover
damages from the owner or operator of the white truck must be answered by reference to the
14
substantive tort law of New Mexico. See Britt, 907 P.2d at 998 (citing State Farm Auto. Ins. Co. v.
Ovitz, 873 P.2d 979, 981 (N.M. 1994)). As the Britt court noted, "fault principles have long been
a fundamental tenet of the substantive tort law of New Mexico." Id. Thus, Kevin could not recover
from the owner or operator of the white truck unless such person shares some actionable fault for
Kevin's injuries.
A factual dispute exists as to whether the driver or passenger of the white truck shot Kevin
Blystra. In two affidavits submitted in the summary judgment stage of this litigation, Kevin insists
the driver shot him. The police report and the investigating officer assert the passenger shot Kevin.
Obviously, if the driver shot him, Kevin would be entitled to recover damages from the driver. If
the passenger shot him, Kevin still might be able to recover from the driver if the driver's role in the
shooting amounted to a tort under New Mexico law. Because of this factual dispute, we have no
choice but to remand the case to the district court for further factual determinations on the issue of
whether Kevin Blystra could recover damages from the owner or operator of the white truck.
B. Medical Payments Coverage
The provisions governing medical payments coverage under the State Farm and Farmers
policies do not provide benefits unless Kevin sustained his injuries "through being struck by" a
"motor vehicle or trailer." We must therefore decide whether being shot with a bullet fired from a
passing vehicle amounts to be being struck by that vehicle. Observing that the Supreme Court of
New Mexico has determined that the phrase "struck by a motor vehicle" is vague and should be
construed in favor of the insured, see Foundation Reserve Ins. Co. v. McCarthy, 419 P.2d 963, 964
15
(N.M. 1966), the Blystras urge us to conclude that Kevin was "struck by" the white truck. Simply
because vague insurance language must be read in the insured's favor, does not mandate that we find
for the insured. The Blystras have brought forward no New Mexico law that convinces us to read
"struck by a motor vehicle" so liberally as to include being struck by a bullet fired from gun held by
a passenger in the motor vehicle. The undisputed facts show that Kevin Blystra was not struck by
the white truck. He is not entitled to medical payments coverage under the State Farm or Farmers
policies.
The judgment of the district court is AFFIRMED as to medical payments coverage,
REVERSED as to uninsured motorist coverage, and REMANDED for proceedings consistent with
this opinion.
16