Nationwide Insurance Company of America v. Jackson

Filing 53

OPINION AND ORDER: Nationwide's motion for summary judgment (ECF No. 34 )is GRANTED. The accident in this case does not "arise out of the ownership, maintenance, or use" of the vehicle. Signed by Honorable Bruce Howe Hendricks on 9/17/2015.Associated Cases: 4:14-cv-00273-BHH, 4:14-cv-00945-BHH(prou, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Nationwide Insurance Company of
America,

) Civil Action No.: 4:14-273-BHH
)
)
Plaintiff, )
)
v.
)
)
)
Graham Keith Jackson,
)
Defendant. )
_________________________________ )
Graham Keith Jackson,
)
) Civil Action No.: 4:14-945-BHH
Plaintiff, )
)
)
v.
)
)
Nationwide Insurance Company of
)
America,
)
Defendant. )
_________________________________ )
OPINION AND ORDER
This matter is before the Court on the Nationwide Insurance Company of America’s
(“Nationwide”) motion for summary judgment. (ECF No. 34.) Graham Keith Jackson
(“Jackson”) has responded. Nationwide filed the 4:14-273 action in this Court and removed
the action in 4:13-945 from state court. Both are declaratory judgment actions related to
underinsurance motorist coverage, which were consolidated on November 10, 2014, and
placed under the 4:14-273-BHH docket number. (ECF No. 31.)
BACKGROUND
On or about October 27, 2012, Jackson and his stepbrother, William C. “Christian”
Burris-Durham went hunting together. (Burris-Durham Dep. at 7-8.) When they returned
home, Burris-Durham parked the car, turned off the ignition, and removed the keys. Id. at

16-17. He remained in the car for a moment texting someone while Jackson got out of the
vehicle and shut the front passenger door. Id. at 18-19. Jackson opened the rear door of
the vehicle and retrieved his items. (Jackson Dep. at 11-13.) Jackson then turned away
from the vehicle and put his bag on his back. Id. at 11. Jackson was walking away from
the passenger side of the vehicle when Burris-Durham exited the vehicle, opened the rear
driver side door, and reached into the vehicle to retrieve his gun. Id.; (Burris-Durham Dep.
at 19-20.) As Burris-Durham grasped the gun, it discharged, and the bullet struck Jackson
in the back of the leg. (Jackson Dep. at 12; Burris-Durham Dep. at 21.)
Jackson asserted a claim for his injuries. Nationwide settled the liability portion of
the claim and brought this declaratory judgment action for a declaration as to coverage
under its underinsured motorist (UIM) coverage. Jackson counterclaimed by means of his
declaratory judgment action, C.A. No. Case No. 4:14-273.
STANDARD
The court shall grant summary judgment “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(a). The movant bears the initial burden of demonstrating that
summary judgment is appropriate; if the movant carries its burden, then the burden shifts
to the non-movant to set forth specific facts showing that there is a genuine issue for trial.
See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact
cannot be disputed, it must support that assertion either by “citing to particular parts of
materials in the record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for purposes of the motion
only), admissions, interrogatory answers, or other materials;” or “showing . . . that an
adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.

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56(c)(1).
Accordingly, to prevail on a motion for summary judgment, the movant must
demonstrate that: (1) there is no genuine issue as to any material fact; and (2) that he is
entitled to judgment as a matter of law. As to the first of these determinations, a fact is
deemed “material” if proof of its existence or non-existence would affect disposition of the
case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An
issue of material fact is “genuine” if the evidence offered is such that a reasonable jury
might return a verdict for the non-movant. Id. at 257. In determining whether a genuine
issue has been raised, the court must construe all inferences and ambiguities against the
movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654,
655 (1962).
Under this standard, the existence of a mere scintilla of evidence in support of the
Jackson’s position is insufficient to withstand the summary judgment motion. Anderson,
477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient
to preclude the granting of the summary judgment motion. Ross v. Communications
Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985). “Only disputes over facts that might
affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or unnecessary will not be
counted.” Anderson, 477 U.S. at 248.
DISCUSSION
This case does not require any certification to the South Carolina Supreme Court,
as Jackson urges. It involves a very typical exercise in applying existing state court
precedent to particular facts. Indeed, seldom does the Court have occasion to apply a
case as directly controlling, as Peagler v. USAA Ins. Co., 628 S.E.2d 475, 478 (S.C. 2006).

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The Supreme Court of South Carolina has expressly held that accidental gunshot
injuries, during loading and unloading of an insured vehicle, do not “arise out of the
ownership, maintenance, or use” of the vehicle at issue. Peagler v. USAA Ins. Co., 628
S.E.2d 475, 478 (S.C. 2006). In Peagler, a family was preparing to depart from home to
go to work and school. Id. at 476. At the time of the accident, the decedent was in the
vehicle with the door closed, her seatbelt buckled, and the engine running. Id. The insured
was attempting to remove the shotgun from the vehicle so one of the children could get into
the vehicle when the shotgun discharged. Id. The supreme court held that the vehicle was
not an active accessory to the injury; it was merely the site of the injury. Id. at 481.
The Court agrees fairly readily that Peagler is controlling in this case.
The UIM portion of the policy at issue covers damages resulting from an accident
“arising out of the ownership, maintenance, or use of the ‘underinsured motor vehicle.’”
(Complaint, Ex. A at U1.) This language tracks the language of South Carolina’s financial
responsibility statutes. See Peagler, 628 S.E.2d at 478 (quoting S.C. Code §§ 38-77-140,
-30(10.5), -141, and -142). The policy language in this case is essentially identical to the
language at issue in Peagler. Id.
As the parties recognize, South Carolina courts have developed a three-part test to
determine whether an injury “arises out of the ownership, maintenance, or use” of the
insured motor vehicle. Id. The party seeking coverage must show:
(1) A causal connection exists between the vehicle and the
injury;
(2) No act of independent significance breaks the causal link
between the vehicle and the injury; and
(3) The vehicle was being used for transportation purposes at
the time of the injury.
Peagler, 628 S.E.2d at 478. There is a separate three-part test for the determination
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whether a causal connection exists to satisfy the first element. A causal connection exists
when:
(a) The vehicle was an “active accessory” to the injury;
(b) The vehicle was something less than the proximate cause
but more than the mere site of the injury; and
(c) The injury was foreseeably identifiable with the normal use
of the vehicle.
Id. at 479.
Jackson cannot satisfy the first element that a causal connection exists between the
vehicle and the injury. Namely, there is no evidence that the car was any accessory to the
injury, passive or active. It is undisputed that the vehicle had been parked and the motor
shut off when the accident occurred. (Burris-Durham Dep. at 16-17.) Jackson and
Burris-Durham had both exited the vehicle.

Id. at 19-21; (Jackson Dep. at 11-13).

Burris-Durham was merely reaching into the back seat to remove his hunting rifle when the
accident occurred. Id.
Jackson tries to satisfy these causation elements by citation to Burris-Durham’s
deposition testimony with only a sentence explanation. (Jackson Resp., ECF No. 38, at
3.) Specifically, Jackson offers that it is reasonable to “infer” that “the friction between the
rifle and the back seat” caused the gun to accidentally fire. Id. In fact, Burris-Durham
posited that “some kind of static electricity or something like that” caused the gun to fire.
(Burris-Durham Dep. at 23-24.) His full testimony is as follows:
Q:

Was there anything about the vehicle itself that caused
the weapon to discharged [sic]?

A:

It did have cloth seats, if that has anything to do with it.
It might have caused some kind of static electricity or
something like that, because I mean, it was – I was kind
of careless. I should have picked it up, not thinking,
because I mean, static electricity probably did have
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something to do with it.
(Burris-Durham Dep. at 23-24; see also Burris-Durham Dep. at 31-32.)
This is a guess. It is not appropriate evidence of any kind – of any thing. It would
not matter to the undersigned, but Burris-Durham did not even offer testimony that he
heard, saw, or felt any static electricity. It is not based on personal knowledge or even
some anecdotal experience that such static electricity could make a gun to fire
inadvertently. The fact that Burris-Durham is generally aware of the phenomenon of static
electricity is literally of no moment. (Burris-Durham Dep. at 31-32.) It is a hunch and
almost certainly an erroneous one. But, besides being entirely speculative on the actual
facts of this case, the opinion is not an opinion suitable for lay testimony. The Court would
need some expert evidence that static electricity could fire a weapon. The defendant
spends some energy debunking this theory as a matter of obvious physics and engineering.
The Court need not go anywhere near so far. There is simply no evidence in the record
that it either happened as alleged or that it could ever happen as alleged.
“The focus is on the extent of the role, if any, the vehicle played in causing the
injuries or damage, or whether a particular activity is a covered use as required by statute
or a policy provision.” Peagler, 628 S.E.2d at 479. As in Peagler, Jackson “has not
demonstrated the truck was an active accessory to the injury. The truck was not actively
used or involved in causing the injury; it was merely the site of the injury.” Id. at 481.
Jackson attempts to distinguish Peagler from the present case based on differences
in the two cases with respect to the temporal proximity of the gun accident to the usage of
the vehicle for gun-related activity. Namely, Jackson says that in Peagler the guns were
removed the day after the hunting trip and, therefore, more remote in time from the hunting
purposes for which the vehicle was used than the removal of the gun, in this case, which

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came mere moments after they had returned from hunting.
But, Peagler did not turn on any such detail. In fact, it readily concluded, in spite of
the elapsed time, that the car, as in this present case, was foresseably used for hunting
purposes:
The injury was foreseeably identifiable with the normal use of
the pickup truck. Many vehicles in South Carolina, and
certainly many pickup trucks, are used for hunting purposes.
Using a vehicle to transport firearms to and from hunting
grounds is not an abnormal or unanticipated use of a vehicle.
Id. The supreme court did not make any distinction about “use” because the hunting trip
was more remote in time, indeed, the opposite.
There is no evidence that the vehicle was any accessory to the accident or otherwise
caused it, in the way Peagler requires.
Having concluded that no causal connection exists, the Court need not consider the
whether an act of independent significance broke the causal link between the vehicle and
the injury, and whether the vehicle was being used for transportation purposes at the time
of the injury. Id.
CONCLUSION
Based on the foregoing, Nationwide’s motion for summary judgment (ECF No. 34)
is GRANTED. The accident in this case does not “arise out of the ownership, maintenance,
or use” of the vehicle.
IT IS SO ORDERED.
s/Bruce Howe Hendricks
United States District Judge
September 17, 2015
Greenville, South Carolina

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