INTEGON SPECIALTY INSURANCE COMPANY,
Plaintiff,
v
.
JACKIE McCOLLUM AUSTIN, Administratrix of the Estate of AUDREY
SIMONE AUSTIN,
Defendant.
Frazier & Frazier, L.L.P., by Torin L. Fury, for plaintiff-
appellee.
Gray, Newell, Johnson & Blackmon, L.L.P., by Mark V.L. Gray,
for defendant-appellant.
EAGLES, Chief Judge.
On 14 December 1997, Gregory Austin (Gregory) was driving a
1994 Mazda Protégé near the intersection of Randleman Road and
Interstate 85 in Greensboro, North Carolina. Gregory had obtained
possession of the car in return for $25.00 rock cocaine. Audrey
Austin (Audrey) was a passenger in the Mazda and was seated behind
Gregory. As Gregory drove, he exchanged words with the driver of
another car in the next lane. Gregory thought that one or more of
the occupants of the other car had a gun. Acting on this belief,
Gregory held his handgun out the driver's side window of the Mazda
and fired once in the direction of the other car. As Gregory tried
to fire a second time, his gun jammed. Gregory resolved the gun's
jammed condition and then fired a second time. The second bulletricocheted off the other car and then reentered the back portion of
the Mazda Protégé killing Audrey. As a result of the shooting,
Gregory pleaded guilty to second-degree murder.
Jackie McCollum Austin, Audrey's mother, filed a civil action
against Gregory. Ms. Austin also brought an uninsured motorist
claim against her insurer, Integon, for the wrongful death of her
daughter.
Ms. Austin's policy states in relevant part:
We will pay compensatory damages which an
insured is legally entitled to recover from
the owner or operator of an uninsured motor
vehicle because of:
(1) Bodily injury sustained by an insured and
caused by an accident . . . .
The owner's or operator's liability for these
damages must arise out of the ownership,
maintenance or use of the uninsured motor
vehicle.
Integon (plaintiff) filed a declaratory judgment action on 2
March 2000 alleging that coverage was not available to Ms. Austin
under her uninsured motorist policy because the damages sought by
Ms. Austin did not arise out of the operation, maintenance, or use
of an uninsured motor vehicle. Ms. Austin (defendant) answered on
18 April 2000. Plaintiff moved for summary judgment on 19 December
2000. On 29 January 2001, the Honorable A. Moses Massey granted
plaintiff's motion for summary judgment. Defendant appeals.
When determining whether a movant is entitled to summary
judgment, this Court applies a two-part analysis of whether: (1)
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, show that thereis no genuine issue as to any material fact and (2) the moving
party is entitled to judgment as a matter of law. Davis v. Town of
Southern Pines, 116 N.C. App. 663, 665, 449 S.E.2d 240, 242 (1994).
On appeal, this Court must view the record in the light most
favorable to the non-movant and draw all reasonable inferences in
the non-movant's favor. Aetna Cas. & Sur. Co. v. Welch, 92 N.C.
App. 211, 213, 373 S.E.2d 887, 888 (1988).
Here, defendant contends that a genuine issue of material fact
exists relating to whether the discharge of Gregory's gun was
accidental. Defendant argues that Gregory's operation of a vehicle
during which his gun accidentally discharged created a causal
connection between the use of the vehicle and the accidental gun
discharge that in turn spawned a viable claim for uninsured
motorist coverage. We disagree.
In Scales v. State Farm Mut. Auto. Ins. Co., 119 N.C. App.
787, 460 S.E.2d 201 (1995), this Court considered whether an
insured's general automobile liability policy issued by State Farm
covered an intentional shooting from the insured vehicle. The
Scales Court held:
In order for an injury to be compensable,
there must be a causal connection between the
use of the vehicle and the injury. This
connection is shown if the injury is the
natural and reasonable consequence of the
vehicle's use. However, an injury is not a
natural and reasonable consequence of the
use of the vehicle if the injury is the
result of something wholly disassociated
from, independent of, and remote from the
vehicle's normal use. Clearly, an automobile
chase with guns blazing is not a regular and
normal use of a vehicle.
An intentional shooting such as occurred
in this case is not a compensable act arising
out of the ownership, maintenance, or use of
an insured vehicle.
Id. at 790, 460 S.E.2d at 203 (citations omitted). See also Wall
v. Nationwide Mut. Ins. Co., 62 N.C. App. 127, 302 S.E.2d 302,
(1983) (person outside vehicle injured by intentional discharge of
gun by person inside vehicle not covered by vehicle's insurer).
Cf. State Capital Ins. Co. v. Nationwide Mut. Ins. Co., 318 N.C.
534, 350 S.E.2d 66 (1986) (holding that [s]ince the transportation
and unloading of firearms are ordinary and customary uses of a
motor vehicle, and the injury-causing accident here resulted from
the unloading of the transported rifle, such injuries were a
natural and reasonable incident or consequence of the use of the
motor vehicle).
Here, Gregory filed an affidavit wherein he stated that he
held the handgun out the window and it accidentally discharged
after jamming and that he did not intend to harm the passenger,
Audrey Simone Austin. Even accepting as true Gregory's claim that
the discharge of the gun was accidental, summary judgment is still
proper. Intentionally pointing a gun out the window of a moving
automobile towards the occupants of another moving automobile does
not constitute normal or ordinary use of a motor vehicle. The fact
that the gun may have accidentally discharged after it jammed while
Gregory was attempting to fire it is irrelevant. Gregory's
pointing of the gun violated N.C.G.S. § 14-34, which states: If
any person shall point any gun or pistol at any person, either infun or otherwise, whether such gun or pistol be loaded or not
loaded, he shall be guilty of a Class A1 misdemeanor.
In this instance, the automobile was merely the situs of the
assault. See Nationwide Mut. Ins. Co. v. Webb, 132 N.C. App. 524,
526, 512 S.E.2d 764, 765 (1999). The death of Audrey Austin
resulted from something wholly disassociated from, independent of,
and remote from the [Mazda's] normal use. Id. at 526-27, 512
S.E.2d at 766 (citations omitted). Because Audrey Austin's death
was the result of Gregory's intentional pointing of the gun out the
window of the Mazda Protégé and the subsequent discharge of the
gun, we hold that Audrey Austin's death was not the natural and
reasonable consequence of the use of the Mazda Protégé but was the
result of something 'wholly disassociated from, independent of,
and remote from' the vehicle's normal use. Scales, 119 N.C. App.
at 790, 460 S.E.2d at 203 (citation omitted). Accordingly, we hold
that defendant's uninsured motorist policy did not provide coverage
for the wrongful death of defendant's daughter, Audrey Austin. The
trial court's entry of summary judgment in favor of plaintiff is
affirmed.
Affirmed.
Judges McGEE and TYSON concur.
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