Opinion · Supreme Court of Colorado
Mason v. Celina Mutual Insurance Company
Mason v. Celina Mut. Ins. Co., 161 Colo. 442 (Colo. 1967)
- Type
- Opinion
- Court
- Supreme Court of Colorado
- Jurisdiction
- Colorado
- Date
- 1967-01-23
- Topic
- general
holding that gunshot injury did not arise out of the use of a vehicle when youth toying with gun in a parked car accidentally shot his friend | holding that gunshot injury did not arise out of the use of a vehicle when youth toying with gun in a parked car accidentally shot his friend | holding that even when returning from pistol target practice, an accidental discharge in vehicle that was parked until one of the occupants returned did not implicate the causal connection required to fall within the use clause | holding that even when returning from pistol target practice, an accidental discharge in vehicle that was parked until one of the occupants returned did not implicate the causal connection required to fall within the use clause | liability did not arise out of the use of parked vehicle when passenger accidentally discharged pistol, killing fellow passenger | death occurring from discharge of pistol while three youths were toying with the weapon in insured's vehicle did not arise out of a covered use of vehicle | death occurring from discharge of pistol while three youths were toying with the weapon in insured’s vehicle did not arise out of a covered use of vehicle | one passenger accidentally discharges pistol killing another; held, injury did not arise out of operation, maintenance, or use of a motor vehicle | one passenger accidentally discharges pistol killing another; held, injury did not arise out of operation, maintenance, or use of a motor vehicle | no coverage where, after target practice, gun discharged when passenger sitting in parked car played with gun | although insured was sitting in his car when pistol accidentally discharged, injury did not originate from “use of the vehicle as such” | death occurring from discharge of pistol while three youths were toying with it in insured's car did not arise out of use of car | no coverage where, after target practice, gun discharged when passenger sitting in parked car played with gun | in which no coverage was found when, after target practice, a passenger in the insured vehicle was injured while playing with the gun inside the vehicle | death occurring from discharge of pistol while three youths were toying with the weapon in insured’s vehicle did not arise out of a covered use of vehicle | death occurring from discharge of pistol while three youths were toying with the weapon in insured's vehicle did not arise out of a covered use of vehicle | “The vehicle was parked at the time, the engine was not in operation and no part of [shooter’s] body struck the vehicle to occasion the discharge of the firearm.” | injuries sustained from discharge of pistol did not “arise out of the use” of automobile pistol was in for purposes of automobile liability insurance policy since vehicle was parked, engine was off, and vehicle did not occasion pistol’s discharge | injuries sustained from discharge of pistol did not "arise out of the use" of automobile pistol was in for purposes of automobile liability insurance policy since vehicle was parked, engine was off, and vehicle did not occasion pistol's discharge
Citator
- Cited by
- 37 opinions
delivered the opinion of the Court.
This is a third party action against Celina, an insurance company, on its liability policy which had insured the automobile of one Weathers.
It appears that Weathers’ son Ricky, who was also a named insured, had driven Donald R. Mason, Francis Zimmerman and two other youths from the Greeley High School to target practice with some firearms. On returning to the school, Weathers parked the vehicle and went back to class with one of the boys. The other three youths remained in the automobile with Ricky’s consent. Francis moved into the driver’s seat with Donald on his right and the third person in the rear seat. While Donald was toying with a pistol, it accidentally discharged killing Francis. The vehicle was parked at the time, the engine was not in operation and no part of Donald’s body struck the vehicle to occasion the discharge of the firearm. Fred J. Zimmerman, father of Francis, thereafter sued Donald Mason for the alleged wrongful death of his son. Mason then brought in Celina as a third party defendant contending that he was protected by Weathers’ car insurance policy.
The sole question on this writ of error is whether an insurance policy provision that reads in pertinent part that it will pay on behalf of the insured sums he is legally obligated to pay as damages because of death sustained by any person “caused by accident and arising out of the * * * use of the automobile” affords coverage to the guest of a named insured under the facts presented. The trial court held it did not, and we agree.
*444 Assuming, arguendo, that Mason comes within the definition of an insured and also that he was permissively “using” the insured vehicle at the time of the tragedy, nevertheless, in our view the accident did not arise out of a covered use of the automobile. Here no causal connection between the discharge of the pistol and the stopped vehicle was shown, as is required to afford coverage under such a policy. See Annot., 89 A.L.R.2d 150. Even though in a technical sense it might be argued that Donald was using the vehicle at the time the shot was fired, for he was sitting in it, such a use, however, is not the type of use contemplated by the policy-in question where the injury would have to be one originating . from the use of the vehicle as such. 7 Appleman, Insurance Law and Practice § 4317, at 144. In Appleman at page 146, it is stated that: “1. The accident must have arisen out of the inherent nature of the automobile, as such” in order to bring one within the terms of such a policy.
The judgment is affirmed.