### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON VICTORIA INSURANCE COMPANY v. ANNIE HAWKINS, ET AL 

### .

An Appeal from the Circuit Court for Shelby County No. 93890 T.D. The Honorable Robert L. Childers, Judge

No. W1999-01650-COA-R3-CV - Decided April 6, 2000

Plaintiff, Victoria Insura

nce Company, file

d this decla

ratory judgment suit against defe ndants, Annie Hawkins, Arnold Hawkins, individually and as parents or lega l guardians of Terrell

Hawkins, Marlus Taylor and Tammy Terry to determine coverage under the uninsured motorist provision of

a liability insurance policy issued to defend ant, Arnol d Hawkins, and applicable to defendants, Annie Hawkins and Terrell Hawk ins. The Hawkins vehicle collided with a vehicle driven by defendant, Marlus Taylor, and owned by defendant, Tammy Terry, after Marlus Taylor was shot from another motor vehicle by un known assailant. From the order of the trial court denying Victoria’s motion for summary judgment and granting judgment to the defendants, Victoria has appealed. Tenn.R.App.P. 3; Appeal as of right ; Judgment of the C

ircuit Court Reversed and Remanded
C RAWFORD , P.J., W.S., delivered t he opinion of the c

ourt, in which FARMER

, J., and LILLARD, J., joined. Roane Waring III, Memphis, For Appellant Kendall Reeves, Memphis, For Appellees, Annie Hawkins and Arnold Hawkins
OPINION
J UDGE C RAWFORD delivered the opi nion of the court.
This is a declarator

y judgme nt suit brought by the plaintiff, Victoria Insurance Company, seeking a declaration that it is not obligated to prov ide uni nsured motorist coverage to the defendants-insu

reds, Annie Hawkins, Ar

nold Hawkins,

and Terrell Hawkins. Plaintiff appeals the trial court’s order denying its motion for summary judgment and granting judgment for defe ndants.
The facts are undisputed as stipulated by the parties. Victoria issued a motor vehicle liab

ility insurance policy to Arnold Hawkins for a policy period of April 17, 1996 through April 17, 1997, which included uninsured/underinsured motorist coverage. On June 14, 1996, Arnold Hawkins was driving the insured vehicle westbound in the south ern-most traffic lane on the south loop of Interstate 240, near Airwa

ys Boulevard in Mem

phis , Tennessee, and

Annie Hawkins and

Terrell-2-

Hawkins were passenger s. At the same time,

Marlu s Tay lor was driving eastbound in a 1993 Mizubishi Gallant owned by Tammy Terry on the south loop of Interstate 240 near the Airways Boulevard exit. About th e same time, an unknown vehicle was traveling eastbound in the center traffic lane for eastbou

nd traffic in pro

ximity to the Terry vehic

le, when a passen

ger in the unknown vehicle fired gun shots into

the Terry vehic

le striking the driver, Marlus Taylor. As a result of being shot, the Taylor vehicle crossed over the center median area into the westbound traffic lane s where it c ollided with the Hawkins vehicle. Taylor was killed by the gun shot, and the driver of the unknown v ehicle and his passenger have never been identified. There was no policy of mot o r vehicle insurance providing coverage for Taylor or Terry at the time of the motor vehicle accide nt on June 14, 1996. Arnold Hawkins, Annie Hawkins, and Terrell Hawkins filed a complaint in the Circuit Court for the Thirtieth Judic

ial District at Memp

his seeking damages allegedly sustained by the co llis ion. The complaint is styled: “Annie Hawkins, Arnold Hawkins, Individually and as Parents and/or Legal Gua

rdians of Terre

ll Hawkins versus John Doe (1) John Doe (2), Marlus Taylor and Tammy Terry.
Victoria filed the instant su

it against defendants

for a declarat

ion that it was not obl

igated to provide uninsured motorist coverage to Anni e Hawkins, Arnold Hawkins or Terrell Hawkins pursuant to the terms and provisions of the insurance policy. The trial court denied Victoria’s motion for summary judgment and sua sponte granted judgment t

o defendants. At the conclusion of the argument on

the motion for summa

ry judgment, the co

urt stated:
It was caused by the actions of a thirdparty and to me, again, it does not make any difference whether they’re in a vehicl e or standing on the side of the roadway. If they do something to cause a problem to one vehicle that then runs into another vehicle, that’s an automobile accident and I think it is covered under the policy.
Victoria has appealed, and the only issue for review is whether the trial court erred in holding that there is covera

ge pursuant to the u

ninsured motorist p

rovi sions of the subjec

t automobile insurance policy. Questions involving an insurance policy’s coverage and an insurer’s duty to defend require the interpretation of the insurance policy in light of claims asserted against the insured. Standard Fire Ins. Co. v. Chester O’Donley & Assoc. , 972 S.W.2d 1 (Te nn. Ct. Ap p. 1998). The issues rel ating to the scope of co verage presen

t questions of law w

hich can be reso

lved by summar y judgmentwhen the relative facts are not in dispute. Id. at 5-6. Summary judgment may be granted only when there are no genuine material factual disputes with regard to the claim or the defenses asserted in the motion, and when the moving party is entitled to a judgment as a matter of law. Tenn. R. Civ. P. 56.03; Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993).
In construing contracts, the words expressing the parties’ intentions should be given the usual, natural and ordinary meaning. Ballard v. North Americ an life & Cas. Co. , 667 S.W.2d 79 (Tenn. Ct. App. 1983). Whe re there is no amb

iguity, it is the duty of

the court to apply to the words used their ordinary meaning and neither party is to be favored i n their constru ction. Id. at 83. In-3-

Ballard , the Court, quoting from Guardian Life Ins. Co. of America v. Richardson , 23 Tenn. App. 194, 129 S.W.2d 1107 (1939), said:

Contracts of insuranc e , like other contracts, are to be construed according to the sense and meaning of the terms which the parties have used, and if

they are clear

and unambiguous,

their terms are to be taken and und erstood in their plain, ordinary, and popular sense. The ruleof

strict construction does not authorize a perversion of language, or th e ex ercise of inventive powers for the purpose of creating an ambiguity where none exists, nor doe s it authorize the court to make a new contract

for the parties or

disregard the evidence (intention) as expressed, or to refi ne away terms of a contract expressed with sufficient clearness to convey the plain meaning of the parties and embodying requirements, . . .
667 S.W.2d at 82. The pertinent parts of Victoria’s insurance policy are:
PART C - UNINSURED MOTORIST COVERAGE INSURING AGREEMENT
A. We will pay compensatory damages which an “insured is legally entitled to recover from the owner or oper ator of a ny “uninsured motor vehicle” because of 1.“Bodily inj ury ” sustained by an “insured” and caused by an acc

ident;
2. “Property damage” caused by an acc ident if the Schedule or Declaration P

age indicates th

at both “bodily injury” and “property damage” Uni n sured Motorists Coverage applies. The owner’s or operator’s liability for these damages must arise

out of the ownership, maintenance or use of the “unins ur ed motor vehicle.”

* * * B. “Insured” as used in this endorsement means 1. You or any “family member.”
2. Any other person “occupying” “y our covered auto.”-4- * * *
D. “Uninsured motor vehicle” means a land motor vehicle or trailer of any type:
1. To which no bodily injury liability bond or policy applies at the time

of the accident.

. . . 3. Which is a hit-and-run vehicle whose operat or o r owner cannot be identified

and which hits, or causes an accident resul ti ng in “bodily injury” or “property damage” without hitting: a. You or any “family member,”
b. A vehicle which y

ou or any “family

member” are “occupying,” or
c. “Your covered auto.”
If there is no physical contact with the hit-an d- run vehicle the facts of

t he accident must be proven by clear and convincing evidence. We will o nly accept competent

evidence other than evidence provided by the occupant of :

a. “Y our covered auto,” if “your covered au to ” is involved in the accident.
Victoria asserts that the a

ccident in questi

on did no t “arise out of the ownership, maintenance, or use of the motor vehicle.” Appellees asser t that the Terry ve

hicle is an uninsured motor vehicle, and

that the accident arose out of the ownership and use of this vehicle. Moreover, the appellees assert that the policy l angu age regarding hit and run vehicles qualifies the unknown vehicle in this case as an u

ninsured motor veh

icle, because it

does not di fferentiate between negligent and inte

ntional actions. Under the su bj ect policy, the company is obligated to pay to the insureds such sum as the “insuredis legally

entitled to recover from the owner or operator of any ‘uninsured motor vehicle’” f or bodil y injury caused by an accident. The policy unambiguously requires that the driver’s and owner’s liability for damages “must arise out of the ownership, maintenance, or use of an insured-5-

motor vehicle.” Therefore, we first consider whether the insureds’ injuries were caused by accident arising out of the operation, maintenance, or use of an uninsured motor vehicle.
In Travelers Ins. Co. v. Aetna Cas. & Sur. Co. , 491 S.W.2d 363 (Tenn. 1973), our Supreme Courtinterpreted the

meaning of the phr

ase “arising out

of the ownership, maintenance, or use” of an automobile as it applies to liability coverage. In Travelers , Raymond Lewis Muehlman, a college st udent, was lo ading a shotgun into the automobile of a fellow student, Rapai, when the shotgun discharged

and injured Rapai . Rapai recover ed a judgment for d

amages against Mu

ehlman, and in a subsequent lawsui

t filed against

Muehlman’s automo

bile liability carr

ier, the chance

llor held that Rapai’s injuries resulted

from the use

of the automobile as defined under the policy. In affirming the trial court’s judgment that coverage was available for Muehlman, the Court said:

The term “arising out of the use” in liability pol

icies has genera

lly been held to be a broad, compr ehensive term meaning “origination from,” “havin g its origin in,” “growing out,” or “flowing from.” (Citations omitted). The term “use,” then, has been ageneral catchall term construed by

the courts to inclu

de all proper uses of a vehicle. Appleman, Insurance Law and Practice, Sec. 4316 (1962). (Emphasis added).
Id. at 365.
In Anderson v. Bennett

, 834 S.W.2d 320 (Tenn. Ct. App. 1992), this Court determined that injuries sust ained by an insured when an angry driver discharged a firearm in the direction of a group of children did n ot arise out of t he “use” of the vehicle. In affirming the trial court’s order granting summary ju

dgment to the insure

r, the Court said:
I n consid ering the facts of the case at bar, we find that the defendant Bennett’s use of the vehicle to discharge his w

eapon in the direction of the group of children was not a proper or normal use of t he vehicle as required by Travelers , supra . Because we fi nd as a ma tter o f law that the accident did not result from the proper use of Bennett’s vehicle, we find it unnece ssary to reach the question of whether there existed

a causal relatio

nship between Bennett’s use of the vehicle and the injury to Laura Anderson.
Id. at 323.
This Court most recently addressed the issue of whether the use of a vehicle to fire a

weapon is a “proper

use of a vehicle” in Weil

v. Gaia, et al , 1999 WL 455432 (Tenn. Ct. App.)(Application for Permission to Appeal denied Oct. 25, 1999). Weil, a passenger in an uninsured ve h icle, was injured by a gunshot from the driver of another uninsured vehicle. Plaintiff filed suit aga inst the drive r s of both vehicles. The defendant insurance company was served with process and filed a motion to sever the insuranc e ques tion from the tort action and deny coverage. The motion was-6-

denied by the trial court, and on appeal, this Court reversed, stating:

In this case, Gaia used his vehicle to chase Ware’s car, and to fire a weapon at Ware’s car. In view of Anderson , we must conclude that Gaia’s use of his vehicle to fire a weapon

at Ware’s car was not a proper use un der the uninsured motorist provision of Weil’s insur anc e policy. This holding makes it unnece ssary to reach the issue of wheth erthere was a casual con nection between

Gaia’s use of his vehicle and

the shooting. Therefore, Weil’s injurywas not “caused by accident arisin

g out of the opera

tion, ma i ntenance or use of an uninsured motor vehicle,” w ithinthe meaning of her insurance policy and State Farm is not obligated to provide coverageto her under the uninsured motorist provision.
Id. at *5. The Court did n ot address uninsur

ed motorist cover

age as it might apply

to Weil’s suit against the driver of the automobile in which she was riding. In the instant case, appellees point out that we are dealing with two uninsured motor vehicles, the vehicle from which the gunshot came and the vehicle which collided with the insured. A

ppellees contend

that the policy lan

guage does not dif

ferentiate between negligent and intentional acts for the hit and run vehicle, and that therefore the vehicle meets the

definition of an un

insured motor vehi

cle in the policy. W

e must respectfully disagree. Appellees overlook the fact that the use of the vehicle, whether identified or unidentified, must be a proper use in order for the liability to arise out of the use of the vehicle as required in the policy. Appellees next assert that there should at least be coverage because the Terry vehicle was being used in a proper manner when it collided with the Hawkins vehicle. Conceding that to be

a fact, we must the

n proceed with a s

econd prong of the

test described in Travelers to then determine whether there is a causal connection between the use of the Terry vehicle and the injury. Id. at 365. Concerning causation, the Travelers Court said: Each case turns on its precise individual facts. The question

to be answered is whether the injury “originated from,” had its origin in, “grew out of,” or “flowed from” the use of the vehicle.
Id. at 366.
In the instant cas

e, the parties fil

ed a written stipul

ation of facts whi

ch specifically states: “ As a result

of Taylor being shot, the Terry vehicle left the right . . . traffic lane and crossed on to the north side of the roadway.” (Emphasis added). Thus, it is stipulated that the causation in fact of the injuries to the insureds was the action of the person in the-7-

unidentified vehicle. In the absence of a casual connection between the driver of the Te rry vehicle and the insureds’ injuries, there can be no uninsured motorist coverage. Accordingly, there is no uninsured motorist coverage provided by the subject insurance policy for the injuries sustained by the insureds for which they seek recovery under docket number 88279-8 TTD, Circuit Court, for the Thirtieth Judicial District of Memphis. The order of the trial court is reversed, and the case is remanded to the trial court for further pro

ceedings as may b

e necessary. Cos

ts of the appeal a

re assessed to ap

pellees, Annie Hawkins and

Arnold Hawkins.