Nationwide Mutual v. Sherman ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NATIONWIDE MUTUAL INSURANCE
COMPANY,
Plaintiff-Appellee,
v.
SARA SHERMAN, as Personal
Representative of the Estate of No. 97-2580
William D. Sherman,
Defendant-Appellant,
and
DEREK GRIGGS,
Defendant.
Appeal from the United States District Court
for the District of South Carolina, at Greenville.
Henry M. Herlong, Jr., District Judge.
(CA-96-1398-6)
Submitted: June 23, 1998
Decided: July 27, 1998
Before WILKINS and HAMILTON, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Fletcher N. Smith, Jr., Greenville, South Carolina, for Appellant. J. R.
Murphy, MURPHY & GRANTLAND, P.A., Columbia, South Caro-
lina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Sara Sherman appeals from the district court judgment in favor of
Nationwide Mutual Insurance Company in Nationwide's declaratory
judgment action seeking a declaration that insured William D. Sher-
man's death did not arise out of the operation or ownership of an
automobile, and therefore, uninsured motorist coverage is unavail-
able. Finding no error, we affirm.
In 1991, Sherman was fatally shot by Derek Griggs. The shooting
occurred in the parking lot outside of a nightclub. Griggs had been
involved in an argument in the nightclub with Marvin Young, which
continued into the parking lot. Sherman was a friend of Young's, and
apparently participated in the argument once in the parking lot.
At the time the shot was fired, Griggs was driving his car at a slow
rate of speed through a large crowd that had gathered in the parking
lot. Griggs pulled his weapon prior to getting in the car. There was
no evidence as to whether Griggs was shooting at Sherman or that
Griggs drove the vehicle to obtain a position from which to shoot
Sherman. Neither Griggs nor the vehicle he drove was covered by
insurance. Sherman was insured by a policy issued by Nationwide,
which contained an uninsured motorist provision providing coverage
for bodily injury caused by an uninsured motorist if the injury arose
out of the operation or ownership of an uninsured motor vehicle.
Griggs was indicted in South Carolina state court for murder, and
he pled guilty to voluntary manslaughter. Sara Sherman, as personal
representative of the estate of William Sherman, filed suit against the
nightclub and Griggs, and asserted a claim against Nationwide under
the uninsured motorist coverage of the policy issued by Nationwide
to Sherman.
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Nationwide filed a declaratory action, seeking a declaration that
Sherman's death did not arise out of the operation or ownership of an
automobile, and therefore, uninsured motorist coverage was unavail-
able. At the bench trial, the parties stipulated to the aforementioned
facts, and the court based its ruling on these facts. Neither party
requested an opportunity to submit additional evidence.
The district court ruled in favor of Nationwide, holding that there
was no causal connection between the vehicle and the shooting, as
required under South Carolina law. Thus, the injury did not arise out
of the ownership or use of the uninsured vehicle, and there was no
uninsured motorist coverage available. Sara Sherman appeals.
Under South Carolina law, an insured is legally entitled to recover
damages "arising out of the ownership, maintenance, or use" of an
uninsured vehicle. See S.C. Code Ann. § 38-77-150 (Law. Co-op.
1985). To determine whether gunshot injuries caused by person trav-
eling in an uninsured vehicle arose out of ownership, maintenance, or
use of the assailant's vehicle, a court should consider whether there
is a causal connection between the vehicle and the injury. See Wausau
Underwriters Ins. Co. v. Howser, 422 S.E.2d 106, 108 (S.C. 1992).
Here, the evidence is insufficient to establish the requisite causal
connection between the uninsured vehicle and Sherman's injuries.
Griggs had ample opportunity to fire at Sherman prior to entering the
vehicle. Thus, the vehicle was not necessary for Griggs to shoot Sher-
man. See Wausau, 422 S.E.2d at 108. The gunshot was also not the
"culmination of an ongoing assault, in which the vehicle played an
essential and integral part." See Wausau, 422 S.E.2d at 108. The alter-
cation between Griggs, Sherman, and others began inside the club and
continued into the parking lot. Griggs had pulled his gun prior to
entering the vehicle and could have shot Sherman then, and Griggs'
vehicle was not involved in the altercation until the very last moment
before Griggs fired the shot. The vehicle was thus only incidental to
the shooting, and not essential. See Carraway v. Smith, 467 S.E.2d
120, 121 (S.C. Ct. App. 1995) (holding that when assailant exited car
prior to shooting, there was no "ongoing use of a vehicle . . . to carry
out the attack"); Wausau, 422 S.E.2d at 108; Home Ins. Co. v. Towe,
441 S.E.2d 825, 827 (S.C. 1994) (holding when use of vehicle placed
assailant in position to throw bottle at sign, which hit passenger in
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passing vehicle, and vehicle's speed contributed to velocity of bottle
thus increasing seriousness of passenger's injuries, vehicle was active
accessory giving rise to injuries). Sara Sherman failed to establish the
requisite causal connection between the vehicle and Sherman's inju-
ries, and thus failed to establish that the injuries arose out of the use
of Greggs' vehicle. See S.C. Code Ann. § 38-77-140.*
We therefore affirm on the reasoning of the district court. We dis-
pense with oral argument because the facts and legal contentions are
adequately set forth in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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*To the extent that Sherman contends the district court erred in not
allowing the record to be fully developed prior to ruling, it was not error
for the district court to rely on the facts presented by the parties through
stipulation. See Richardson v. Director, Office of Workers' Comp.
Programs, 94 F.3d 164, 167 (4th Cir. 1996).
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