                                  Cite as 2017 Ark. App. 45

                ARKANSAS COURT OF APPEALS
                                      DIVISION III
                                      No. CV-16-512


                                                 Opinion Delivered   January 25, 2017

CARL WILLIAMS AND BONNETTA                       APPEAL FROM THE DESHA
WILLIAMS                                         COUNTY CIRCUIT COURT
                   APPELLANTS                    [NO. 21CV-14-71-1]

V.                                               HONORABLE SAM POPE, JUDGE

ALLSTATE PROPERTY AND
CASUALTY INSURANCE COMPANY                       AFFIRMED
                   APPELLEE



                            WAYMOND M. BROWN, Judge


       Appellants Carl and Bonnetta Williams appeal the April 22, 2016 order of the Desha

County Circuit Court granting summary judgment in favor of appellee Allstate. Appellants

argue that the court erred in granting summary judgment because there were genuine issues

of material fact still remaining. We find no error and affirm.

       The facts necessary to understand the instant case are as follows. Carl Williams was

driving his vehicle in a northerly direction on U.S. Highway 65 in Mitchellville, Arkansas,

on June 28, 2012, when a vehicle owned and driven by Lewis Edward Phoenix pulled beside

Carl, and Laron Marco Gray shot Carl twice in the left side pelvic area. Phoenix and Gray

fled the scene, and Carl drove himself to the hospital. As a result of the shooting, Carl

incurred medical expenses and damages to his vehicle. Appellants filed a complaint against
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Phoenix and Gray on June 20, 2014, seeking compensatory, punitive, and other damages.1

Appellants filed a motion for default judgment against Phoenix and Gray on October 23,

2014.2 Appellants filed an amended complaint on January 7, 2015, naming appellee as a

defendant. In the amended complaint, appellants alleged that they had uninsured motorist

insurance (UM) with appellee at the time of the shooting and that Carl had made a demand

for payment under the UM section of the policy. However, Carl contended that Allstate

failed and refused to pay anything in breach of its contractual obligation as per the policy.

Thus, appellants sought to be awarded judgment against appellee for policy limits of the UM

as well as statutory reasonable attorney’s fee and interest.    Allstate filed an answer to the

complaint on January 26, 2015, essentially denying the material allegations in appellants’

complaint. It put forth several affirmative defenses and asked that appellants’ complaint against

it be dismissed.

       Allstate filed a counterclaim for declaratory judgment on June 3, 2015, asking the court

to declare that the UM coverage did not extend to the incident complained of by appellants.

It included a copy of the policy in question. Appellants filed an answer to Allstate’s

counterclaim on July 29, 2015, denying the material allegations and asking the court to deny

Allstate declaratory judgment and to declare that the policy covered the injuries and damages

complained of. Allstate filed an amended counterclaim on September 8, 2015, asking that the

court declare that the hospital and medical benefits as well as the UM coverage under the

       1
           Bonnetta sought damages for loss of consortium in excess of $75,000.
       2
       A default judgment on liability was entered on January 9, 2015, against Phoenix
and Gray, reserving damages.

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policy did not cover the June 28, 2012 incident. Appellants filed an answer on September

17, 2015, again, denying the material allegations and asking the court to find that the injuries

and damages were covered by the policy.

       Allstate filed a motion for summary judgment and supporting brief on February 10,

2016, alleging that there were no genuine issues of material fact in this case and that it was

entitled to judgment as a matter of law. According to Allstate, appellants’ claimed bodily

injuries and property damage were the result of an intentional shooting of Carl by Gray and

Phoenix, and an intentional shooting did not constitute an “accident” as found in appellants’

policy with Allstate. It also denied that Carl’s damages arose “from the use of a motor vehicle

as a motor vehicle” or “out of the ownership, maintenance or use of an uninsured auto” as

required by the policy. Additionally, Allstate contended that there was no causal relationship

or connection between Carl’s claimed bodily injuries and property damage and the use of a

motor vehicle. Appellants filed a response and accompanying brief on March 7, 2016,3

contending that since Carl was shot while using his vehicle by someone in another vehicle

in use, the injuries and property damages sustained were caused by the respective use of the

autos and were directly related to such uses. Additionally, appellants argued that Carl was

caught by surprise when he was shot, thus, making the shooting an “accident” from Carl’s

perspective. Allstate filed a response on March 18, 2016, arguing that appellants had failed

to meet proof with proof and that Allstate’s summary-judgment motion should be granted.



       3
      Appellants asked for and received an extension of time to respond to the summary-
judgment motion.

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       The court entered a letter opinion on April 22, 2016, which it incorporated into the

order granting summary judgment entered that same day. The court dismissed Allstate from

the proceeding. The court included a Rule 54(b) certification so that appellants could appeal.

This timely appeal followed.

       A trial court grants summary judgment when a party is entitled to judgment as a matter

of law.4 An issue involving a question of law is reviewed de novo and is given no deference

on appeal.5 If the language of an insurance policy is unambiguous, we give effect to the

policy’s plain language without resorting to the rules of construction, but if the language is

ambiguous, we construe the policy liberally in favor of the insured and strictly against the

insurer.6 Policy language is ambiguous if there is doubt or uncertainty as to its meaning and

it is fairly susceptible to more than one reasonable interpretation.7 Whether the language of

the policy is ambiguous is a question of law to be resolved by the court.8

       Allstate’s policy provides medical and hospital benefits coverage VC in Part II as

follows:

       We will pay to or on the behalf of an injured person all reasonable and necessary
       expenses incurred within 24 months after the date of the accident for medical
       treatment, products, and services actually rendered or furnished.


       4
           Humphries v. Nationwide Mut. Ins. Co., 97 Ark. App. 125, 245 S.W.3d 156 (2006).
       5
       Travelers Cas. & Surety Co. of America v. Cummins Mid–South, LLC, 2015 Ark.
App. 229, 460 S.W.3d 308.
       6
           Humphries, supra.
       7
           Id.
       8
           Harasyn v. St. Paul Guardian Ins. Co., 349 Ark. 9, 75 S.W.3d 696 (2002).

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      Ambulance, hospital, medical, dental, surgical, ... are covered. Treatment and services
      rendered in accordance with a recognized religious method of healing are also
      covered. Payments will be made only when bodily injury is caused by an accident
      arising from the use of a motor vehicle as a motor vehicle. Expenses for hospital room
      accommodations are limited to semiprivate room rates.

An injured person is defined under the policy as “you or a resident relative who sustains

bodily injury, sickness, disease, or death arising out of the use of a motor vehicle.” The

policy provides UM coverage SS in Part V as follows:

      If a limit of liability is shown on your Policy Declarations for Coverage SS, we will
      pay those damages that an insured person is legally entitled to recover from the owner
      or operator of an uninsured auto because of:

      1. bodily injury sustained by an insured person, and

      2. property damage. Property Damage is covered only if a separate limit is shown on
      the Policy Declarations for Uninsured Motorist Insurance – Property Damage. The
      first $200 of property damage is not covered. We will not pay for property damage
      cause by an underinsured motor vehicle.

. . . .

      We will not pay any punitive or exemplary damages which are damages which may
      be imposed to punish a wrongdoer and to deter others from similar conduct.

      The bodily injury or property damage must be caused by accident and arise out of the
      ownership, maintenance or use of an uninsured auto.

      Appellants contend that since Carl was using his vehicle at the time he was shot by

someone in an uninsured vehicle in use, the UM portion of the policy with Allstate should

have covered his injuries and property damages and that the trial court erred by granting

Allstate summary judgment. Appellants further argue that since Carl had no way of knowing

that he was going to be shot, it was an accident from his perspective even though he was

intentionally shot. Finally, appellants claim that summary judgment should not have been

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granted since “accident,” “arising from the use of a motor vehicle,” and “arising out of the

use of” are not defined in the policy and are ambiguous and susceptible to more than one

reasonable interpretation. Allstate contends that no error was committed and that the trial

court properly granted it summary judgment.

       Our supreme court has held that the term “arising out of,” when used in the context

of an uninsured motorist provision, means “causally connected with”—a phrase much broader

than “proximately caused by,”9 but less than “but-for” causation.10

       In Hartford Fire Insurance Company v. State Farm Mutual Automobile Insurance Company,11

the court applied the “causally connected with” standard in the context of an insured motorist

provision. In that case, two children were playing in a recreational vehicle parked beside a

house. The children began playing with a loaded .22 caliber pistol that was stored in the

vehicle. The gun accidentally discharged, killing one of the children. After Hartford paid out

a settlement under a homeowner’s insurance policy, Hartford sought contribution from State

Farm, the motor-vehicle insurer. The trial court found that Hartford was not entitled to

indemnity from State Farm because the shooting was not “causally connected with” the

operation of the automobile and thus “did not arise out of the ownership, maintenance or

use” of the vehicle as required by State Farm’s policy. Our supreme court affirmed, noting

that the accident could just have easily occurred in a field, in the driveway, or in a hunting


       9
           State Farm Mut. Auto. Ins. Co. v. LaSage, 262 Ark. 631, 559 S.W.2d 702 (1978).
       10
            Hisaw v. State Farm Mut. Auto. Ins. Co, 353 Ark. 668, 122 S.W.3d 1 (2003).
       11
            264 Ark. 743, 574 S.W.2d 265 (1978).

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lodge. The fact that the person discharging the pistol was inside the vehicle at the time of the

accident did not make the injury one “arising out of the ownership, maintenance, or use” of

the camper.

       In Carter v. Grain Dealers Mutual Insurance Company,12 two men were riding home from

a party together in a car. The passenger was highly intoxicated, and at some point, the driver

pulled over to the side of the road to allow the passenger to vomit. After vomiting, the

passenger grabbed a gun from under the car seat and began shooting at the driver. Both

driver and passenger ended up dead from gunshot wounds. After the driver’s family sought

recovery under the driver’s uninsured motorist insurance, we upheld the trial court’s granting

of summary judgment in favor of the insurance company. We noted that there must be a

causal connection between the injury and the operation of the vehicle for there to be

coverage. The only connection between the driver, Carter’s, death and the use of the vehicle

was that Carter and Kight, the passenger, happened to be in the vehicle when the shooting

occurred. We held that they could have just as easily been outside of the vehicle.

       In Hisaw,13 our supreme court examined whether an uninsured motorist provision

covered an injury suffered by a volunteer firefighter who was injured by an inadvertently

slammed van door while at the scene of an automobile accident. The intoxicated driver of

the van had lost control of the vehicle and run off the road into a ditch. Hisaw, a volunteer

firefighter, was called to the accident scene. After the paramedics had removed the driver and


       12
            10 Ark. App. 16, 660 S.W.2d 952 (1983).
       13
            Supra.

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passenger from the van, Hisaw attempted to retrieve the vehicle’s registration information

which was located on the van’s floor. As he was leaning into the van through the middle

back door, the door swung shut due to the force of gravity and hit Hisaw in the back, causing

injuries to his neck and spine. Hisaw sued, arguing that his injury was proximately caused by

Stuthers’ drunken driving and the ensuing car wreck. The trial court granted summary

judgment in favor of the insurance company, noting that too much time had passed between

the accident and the injury to Hisaw for Hisaw’s injury to be causally linked to the use of the

van. Our supreme court reversed, concluding that the “but for” analysis was not appropriate

for determining the meaning of the phrase “arising out of” in the context of an automobile

insurance policy.

       There is no Arkansas case that is squarely on point with the facts of this case.

However, we are guided by Hartford Fire and Carter. Carl’s injuries and property damages did

not arise out of the use of Phoenix’s vehicle. Although both vehicles were in use at the time

of the shooting, the shooting could have just as easily taken place outside of the vehicles.

Thus, there is no causal connection between the vehicles’ use and the shooting. Additionally,

the shooting of Carl was an intentional act, not an accident as contemplated by the policy.

Accordingly, we hold that the trial court properly granted Allstate’s summary-judgment

motion as there were no material issues of fact needing to be resolved.

       Affirmed.

       GRUBER, C.J., and GLADWIN, J., agree.

       Ogles Law Firm, P.A., by: John Ogles, for appellants.

       Barber Law Firm PLLC, by: J. Cotten Cunningham and M. Evan Stallings, for appellee.

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