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2004-UP-200 - Krenn v. State Farm

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Peter R. Krenn, Individually and as Personal Representative of the Estate of Erik P. Krenn (deceased),        Appellant,

v.

State Farm Mutual Automobile Insurance Company,        Respondent.


Appeal From York County
John Buford Grier, Master-in-Equity


Unpublished Opinion No. 2004-UP-200
Heard March 11, 2004 – Filed March 24, 2004


AFFIRMED


Larry Dale Dove, of Rock Hill, for Appellant.

Timothy A. Domin and Ronnie F. Craig, both of Charleston, for Respondent.

PER CURIAM:  The personal representative of the Estate of Erik Krenn appeals the grant of summary judgment to State Farm Mutual Automobile Insurance Company.  We affirm.

FACTS

Sixteen-year-old Erik Krenn was driving a BMW owned by his father when he pulled into a driveway to turn around.  Krenn and his friend, Christopher Diaz, were the only occupants of the car.  An uninsured Chevrolet with four occupants pulled up on the street behind the Krenn vehicle, blocking it in the driveway.  At least one of the Chevrolet’s passengers, Antonio Gordon, exited the vehicle and approached the BMW on the driver’s side.  In both his statement and affidavit, Diaz stated Gordon demanded money and asked if Krenn wanted some marijuana. [1]   After Krenn declined the offer, the Chevrolet moved slightly forward, allowing the BMW to back out of the driveway.  Krenn backed the BMW out of the driveway and around the Chevrolet until the two vehicles were roughly parallel in the street.  At that point, Gordon—still standing near the BMW—pointed a gun at Krenn and threatened to shoot him.  Diaz stated Gordon reached into the BMW and briefly grabbed the steering wheel.  After Krenn put the BMW into gear and started to drive away, Gordon shot him.  Krenn ultimately died as a result of this gunshot wound. 

Krenn’s father insured the BMW and six additional vehicles with State Farm.  Each of the seven vehicles had liability limits of $25,000, and it was agreed that if coverage existed, the policies would be stackable and the estate would be able to collect $175,000.  State Farm moved for summary judgment, arguing there was no genuine issue of material fact and it was entitled to judgment as a matter of law.  The trial court granted the motion, finding the estate “failed to establish that the facts in this case meet the requirements under South Carolina law to establish coverage.” 

STANDARD OF REVIEW

Summary judgment is proper when it is clear there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.  West v. Gladney, 341 S.C. 127, 132, 533 S.E.2d 334, 336 (Ct. App. 2000).  “Summary judgment can be granted when plain, palpable, and indisputable facts exist on which reasonable minds cannot differ.”  Byerly v. Connor, 307 S.C. 441, 445, 415 S.E.2d 796, 799 (1992).

“In reviewing the grant of a summary judgment motion, this Court applies the same standard which governs the trial court . . . .”  Osborne v. Adams, 346 S.C. 4, 7, 550 S.E.2d 319, 321 (2001).  “In determining whether any triable issues of fact exist, the evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the non-moving party.”  Id.  “On appeal from an order granting summary judgment, the appellate court will review all ambiguities, conclusions, and inferences arising in and from the evidence in a light most favorable to the non-moving party below.”  Id.

LAW/ANALYSIS

The estate argues the master erred in granting State Farm’s motion for summary judgment.  Specifically, the estate argues the Chevrolet was used as an active accessory to the attempted carjacking and Krenn’s subsequent death.  We do not agree.

An insured is legally entitled to recover damages arising out of the “ownership, maintenance, or use” of an uninsured vehicle.  State Farm Fire & Cas. Co. v. Aytes, 332 S.C. 30, 33, 503 S.E.2d 744, 745 (1998) (quoting S.C. Code Ann. § 38-77-140 (1989)).  In order to determine if an individual’s injuries are covered by an automobile insurance policy, the insured must prove the following:  (1) there exists a causal connection between the vehicle and the injury; (2) no act of independent significance breaks the causal link; and (3) the vehicle was being used for transportation at the time of the assault.  State Farm Mut. Auto. Ins. Co. v. Bookert, 337 S.C. 291, 293, 523 S.E.2d 181, 182 (1999) (citation omitted). 

Furthermore, the “causal connection” aspect of this three-part test means (1) the vehicle was an “active accessory” to the assault; (2) something less than proximate cause but more than mere site of the injury; and (3) that the “injury must be foreseeably identifiable with the normal use of the automobile.”  Id.

The first prong of the Bookert test mandates that, in order to recover damages, the estate must prove there was a causal connection between the Chevrolet and Krenn’s death.  The trial court held there was no causal connection in this case, and we agree.  The Chevrolet was not an active accessory to Krenn’s assault because Gordon had exited the Chevrolet and was standing beside the BMW when he shot Krenn.  Further, while the Chevrolet had originally blocked the BMW in the driveway, at the time of the shooting the Chevrolet had moved in order to allow the BMW to proceed.  Assessing these facts, it is apparent that not only was the uninsured vehicle not an active accessory to the assault, it was not even the actual site of the injury, as the vehicle itself was neither part of the assault nor was the assailant inside the vehicle at the time Krenn was shot.  Additionally, Krenn’s shooting was not “foreseeably identifiable” with the normal use of the uninsured vehicle.  Accordingly, we find the causal connection prong of the Bookert test is not satisfied in this case. 

Assuming the facts before us support the causal connection element, the second element of the Bookert test is not met in this case.  When Gordon exited the Chevrolet before shooting Krenn, this was an “act of independent significance” that served to break the causal link of the Chevrolet’s involvement in Krenn’s assault.  In a similar situation, the supreme court has held that any causal connection is broken when the assailant exits the vehicle.  Aytes, 332 S.C. at 35, 503 S.E.2d at 746. 

Notwithstanding the outcome of the Bookert test, the estate argues that in Unisun Ins. Co. v. Schmidt, 339 S.C. 362, 529 S.E.2d 280 (2000), the supreme court held injuries resulting from a carjacking were covered by the uninsured motorist statute.  However, in Schmidt, the court considered whether coverage was allowed when the vehicle considered uninsured is the carjacked vehicle.  This scenario does not apply in the instant case, as Krenn’s BMW was an insured vehicle and the assailant’s Chevrolet was uninsured.  Even though the evidence indicates that Gordon briefly grabbed the steering wheel of the Krenn vehicle, there is no evidence that he exercised any control over it to such an extent that it would rise to the level of a non-permissive use of the vehicle as was the situation in Schmidt

AFFIRMED.

HUFF and STILWELL, JJ., and CURETON, A.J., concur.


[1]        We note the statements of the four individuals in the Chevrolet, including Antonio Gordon’s statement, are substantially the same as Diaz’s statement and affidavit.