Peagler Ex Rel. Estate of Thompson v. USAA Insurance

Justice WALLER,

dissenting.

I respectfully dissent. I would hold the injury here arose out of the “ownership, maintenance, and use” of the pickup truck.

Under the three-prong test set forth by this Court in State Fam Fire & Cas. Co. v. Aytes, 332 S.C. 30, 503 S.E.2d 744 (1998), the party seeking coverage must first establish a causal connection between the vehicle and the injury. Second, there must exist no act of independent significance breaking the causal link. And third, it must be shown that the vehicle was being used for transportation purposes at the time of the accident. State Farm Fire & Cas. Co. v. Aytes, 332 S.C. 30, 503 S.E.2d 744, 745 (1998).

In my opinion, the unloading of the firearms from the vehicle, in preparation for transportation of the children to school, with the motor running, provides a sufficient causal connection to warrant coverage. See Taliaferro v. Progressive Specialty Ins. Co., 821 So.2d 976, 979-80 (Ala.2001) (because the principal use of an automobile is transportation — being dependent upon the operations of loading and unloading — the act of removing a rifle was an inherent use of a pickup truck for purposes of insurance coverage); Kohl v. Union Ins. Co., 731 P.2d 134 (Colo.1986) (where accident occurred as truck owner lifted rifle out of the jeep’s gun rack in preparation to unload rifle and store it for journey home, owner’s actions were intimately related to his use of the vehicle as transportation for himself and his rifle); Allstate Ins. Co. v. Truck Ins. Exchange, 63 Wis.2d 148, 216 N.W.2d 205 (1974) (loading and unloading of guns from van constitutes “use” of the vehicle in spite of the absence of any specific “loading and unloading” clause from the policy).

Other courts have reached similar conclusions in cases of accidental weapon discharges. See Union Mut. Fire Ins. Co. v. Commercial Union Ins. Co., 521 A.2d 308, 310-11 and fn. 1 (Me.1987) (injury which occurred during unloading of shotgun from insured’s automobile was covered under automobile policy’s “ownership, maintenance or use” clause where automobile was being used to transport insured and his companion on hunting trip, a reasonable and foreseeable use of the vehicle; fact that policy did not define “use” in terms of loading or unloading did not affect the analysis); Cameron Mut. Ins. Co. v. Ward, 599 S.W.2d 13, 15-16 (Mo.App.1980) (analyzing distinctions courts have drawn in accidental weapon discharge cases involving vehicles and concluding that courts generally have found insurance coverage to exist when the discharge occurs during loading and unloading of vehicles); Shinabarger v. Citizens Mut. Ins. Co., 90 Mich.App. 307, 282 N.W.2d 301, 306 (1979) (in cases involving accidental discharge of firearms, courts generally have been more liberal in finding a causal connection between use of the vehicle and injury when accident occurs during the loading or unloading process than when accident simply occurs in or near the vehicle, but not during loading).

Further, I would hold that no act of independent significance broke the causal link between the vehicle and the injury. There was no intervening cause wholly disassociated from, independent of, or remote from the use of the truck in this case. On the contrary, the injury here occurred due to the insured’s foreseeable use of unloading his vehicle of the shotguns loaded in the back. Accord Allstate Ins. Co. v. Truck Ins. Exchange, 63 Wis.2d 148, 216 N.W.2d 205 (1974) (coverage provided where a fatal shooting occurred while a loaded weapon was being removed from a truck during a hunting trip).

Lastly, I would find the pickup truck was being used for transportation purposes when the injury occurred. Kathy Thompson and her children were sitting in the car, ready to leave home and go to work and school. They were preparing to drive away, and the engine was running. As the District Court in this case noted, under “USAA’s theory coverage conceivably would not extend to injuries sustained under any factual scenario where a vehicle is parked only momentarily or, far worse, where injuries are sustained while a vehicle is stationary at an intersection during the course of travel.” Peagler v. USAA Ins. Co., 325 F.Supp.2d 620, 627 (D.S.C.2004). Clearly, the vehicle here was being used for transportation.

I would hold that the “ownership, maintenance, or use” of a vehicle includes the loading and unloading of firearms after the vehicle has been used for hunting purposes, a use which is foreseeably identifiable with normal use of the vehicle. Accordingly, I would conclude insurance coverage exists in this case. I respectfully dissent.

PLEICONES, J., concurs.