Whitmire v. Mid-Continent Casualty Co.

OPINION

BUETTNER, Judge:

This is an appeal from an order sustaining Defendant Mid-Continent Casualty Company’s (Mid-Continent) second motion for summary judgment. The following facts are undisputed: At 3:45 a.m., August 8,1990, Linda Harris, entered Plaintiff Rita Jo Whitmire’s bedroom and threatened her with a gun. Harris was formerly married to Whitmire’s husband. Harris, wearing a wig, first asked for money. She took $80.00 from Whitmire’s purse and a gold chain from the dresser. Harris threw a roll of tape on the bed and made Whitmire tape her feet together, then Harris taped Whitmire’s hands. Harris used a pair of 'Whitmire’s pantyhose as a gag for Whitmire. •

Harris then took Whitmire out to Whit-mire’s Cadillac and placed her on the floorboard of the back seat. Harris drove Whit-mire’s Cadillac from her Vian home toward Tahlequah. Harris had an accomplice who followed in a Corvette. At a bridge crossing in Cherokee County, Harris stopped the Cadillac on the side of the road and had a discussion with her accomplice. Harris returned to the Cadillac, and standing outside the car, put it in gear, and caused it to roll down an embankment and hit a tree. Whit-mire felt a jolt. Harris then moved Whit-mire into the front seat of the Cadillac behind the steering wheel, and put the seat belt around her. Harris poured gasoline on the car and on Whitmire, struck a match, and set both on fire.

Whitmire managed to free her feet, jumped out of the car and ran. Harris caught Whitmire and attempted to pull her back to the car, but left the scene when she saw two men coming to help Whitmire. Harris left the scene in the Corvette driven by her accomplice. The rescuers called an ambulance and assisted Whitmire, who suffered burns over 90% of her body.

Whitmire sued Harris and recovered a judgment of $87,500,000. She also made demand on Mid-Continent because it provided uninsured motorist coverage on Whitmire’s Cadillac. Mid-Continent denied the claim. Whitmire sued alleging extreme mental anguish and emotional distress as a result of being kidnapped and transported in her car, and bad faith on behalf of Mid-Continent in its refusal to pay under the uninsured motorist coverage.

The trial court sustained Mid-Continent’s second motion for summary judgment.¹ Whitmire appeals pursuant to Rule 1.203 of the Rules of Appellate Procedure in Civil Cases.

Pursuant to 36 O.S.1991 § 3636 liability-insurers in Oklahoma must offer uninsured motorist coverage to their insureds. Section 3636 provides:

(A) No policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be issued ... unless the policy includes the coverage described in subsection (B) of this section.'

(B) The [liability] policy ... shall provide coverage therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles or hit-and-run motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom.

The issue is whether Whitmire is legally entitled to recover damages from Harris as operator of an uninsured motor vehicle.

Both parties cite Safeco Insurance Company v. Sanders, 803 P.2d 688 (Okla.1990), as authority for their arguments. In that decision, the Oklahoma Supreme Court answered four questions of law certified by the United State District Court for the Northern District of Oklahoma. The questions and the answers were:

1. Does the murder of [a man and a woman] when they were murdered by being burned to death in the trunk of the automobile in question “arise out of the ... use of a motor vehicle” as contemplated by 36 O.S.1981 Sec. 3636? Yes.

2. If the deaths arose out of the use of a motor vehicle, was there a causal connection between the use of the vehicle and the murders? Yes.

3. If the causal connection existed, do the acts of [the wrongdoers] after the car was parked, constitute acts of independent significance to sever any causal link? Yes.

4. Were [the wrongdoers] “operators of (an) uninsured motor vehicle” when they set the vehicle on fire and murdered [the man and the woman]? Yes.

803 P.2d at 690.

In Sanders, a man and woman were seated in her car in a parking lot when approached by two miscreants who got in the car and forced the woman to drive. When the miscreants ordered the woman to stop the car, they took the man’s money and keys to his truck. They tied him up and put him and the woman in the trunk of her car. Then the villains drove the car back to the parking lot, where one of them took the man’s truck and followed the other driving the woman’s car to an isolated location. With the man and woman still locked in the trunk of her car, the criminals cut the fuel line of the car, ignited it, and the car burned. The man and woman died as a result of thermal burns and smoke inhalation while in the trunk of the car.

In answering Question # 1 in the affirmative, the Supreme Court held that “injury resulting from a chain of events which starts with the use of a motor vehicle as the dangerous instrumentality arises out of the use of the motor vehicle.” The Court found, as a matter of law, the murder of the man and woman arose out of the use of a motor vehicle pursuant to § 3636.

With respect to Question #2, the Court held that “use of an uninsured motor vehicle, which is related to its transportation nature and which results in injury, is causally connected to the injury.” Whether a use of an uninsured motor vehicle is related to the transportation nature of the vehicle is necessarily a question of fact to be determined in each case. Based on the facts presented there, the Court found the requisite causal connection.

However, in answering Question #3, the Supreme Court held that if the “evidence establishes that acts of an uninsured motorist, which were not related to the transportation nature of the motor vehicle, resulted in the injury to the insured and the transportation use of the vehicle did not contribute to the injury, then any causal connection between the transportation use of a motor vehicle and the injury is interrupted and severed.” 803 P.2d at 695. The Court found the acts of cutting the fuel line and igniting the fuel after the car was parked, which caused the car to burn, were so contrary to the transportation use of the auto that, as a matter of law, those acts severed any causal connection to the injury, and the injury resulting therefrom was not within the UM coverage mandated by § 8636.

In response to the fourth certified question the Court cited Heritage Insurance Company of America v. Phelan, 59 Ill.2d 389, 321 N.E.2d 257 (1974). In that case the Illinois Court held that a driver of an automobile continued to be an operator of the vehicle while stopped at a service station. The Court held that an “operator of an uninsured motor vehicle includes any person who is engaged in activity related to the transportation nature of the vehicle.” 803 P.2d at 695. Sanders’ automobile was uninsured when it was operated by either of the wrongdoers. It then answered the fourth question in the negative finding the wrongdoers were not operators of an uninsured motor vehicle when they set the vehicle on fire.

Applying the Sanders rationale to the instant facts, we note the following:

1. The chain of events relating to Whit-mire’s injuries did not start with the motor vehicle, as required by Sanders. Rather, the chain of events started in Whitmire’s home where she was robbed, then abducted at gunpoint.

2. The vehicle was the situs of Whitmire’s injuries, not the instrumentality, as discussed in Sanders. While Whitmire argues that the ear was an essential part of the abductor’s plan, the alleged plan was not successful to the extent that the wreck did not cause the car to bum. If it had, this case would be closer to Sanders. Here, Whitmire’s injuries were caused by the abductor’s use of gasoline poured on the car and the abductor’s act in igniting the gasoline. See Sanders, 803 P.2d at 696 n. 10.

3. As in Sanders, the acts of the abductor, in kidnapping Whitmire from her home, and setting fire to Whitmire and her car, were so contrary to the transportation nature of the motor vehicle so as to sever any causal connection.

4.The abductor was not an “operator” of the vehicle when she poured gasoline over Whitmire and the car and ignited the gasoline. Harris was not engaged in activity related to the transportation nature of the vehicle; rather she was attempting to incinerate Whitmire.

The facts of this case are similar to those in Sanders. The Sanders Court found that the criminals were not “operators” of the ear when they cut the fuel line and set the car ablaze. In the instant case, the kidnapper was even less of an operator when she poured gasoline from a can, brought for that purpose, over Whitmire and the car. Such activity was not related to the transportation use of the automobile, “and injury resulting therefrom is not within the UM coverage mandated by § 3636.” Sanders, 803 P.2d at 695. The trial court’s decision granting summary judgment to Mid-Continent on Whit-mire’s uninsured motorist claim was appropriate.

Summary judgment was also appropriate on Whitmire’s bad faith claim. As the trial court decision and this opinion bear out, the undisputed facts show that Mid-Continent had a reasonable ground for contesting coverage. Christian v. American Home Assurance Co., 577 P.2d 899 (Okla.1977).

AFFIRMED.

HANSEN, P.J., dissents with separate opinion. JOPLIN, J., concurs.

1 . The trial court overruled Mid-Continent’s original motion for summary judgment. In her Supplemental Brief in Response to Defendant’s Second Motion for Summary Judgment and Defendant’s Letter Brief Dated June 13, 1995, Whitmire argued that the trial court’s order denying Defendant’ original motion for summary judgment was the law of the case. However, she did not raise this issue in her petition in error, and thus, abandoned it. Barber v. Flynn, 628 P.2d 1151 (Okla.1980).