Opinion
Civil Action 4:20-cv-0241-SAL-TER
07-15-2021
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff, v. DELARWN L. MYERS and KENDALL RODREGOUS SMITH, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
I. INTRODUCTION
This is a declaratory judgment action pursuant to 28 U.S.C. § 2201. Plaintiff seeks a declaration of rights with regard to the events, complaints, and damages alleged in a suit styled Delarwn L. Myers v. Kendall Rodregous Smith, Civil Action No. 2019-CP-21-00165, pending in the Court of Common Pleas, Florence County (the underlying action). Presently before the court is Plaintiff's Motion for Summary Judgment (ECF No. 53). Defendant Myers filed a Response (ECF No. 54), and Plaintiff filed a Reply (ECF No. 55). All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. 636(b)(1)(A) and (B) and Local Rule 73.02 (B)(2)(g), DSC. This report and recommendation is entered for review by the district judge.
II. FACTS
During the morning of January 21, 2018, Defendant Kendall Rodregous Smith was driving a 2002 Ford F-150 pickup truck in Florence County, South Carolina. Corey McNeil was a front seat passenger and Defendant Delarwn L. Myers was asleep in the rear passenger seat in the pickup truck driven by Smith. Smith Dep. 6:15-7:7 (ECF No. 53-2); McNeil Dep. 11:23-12:2 (ECF No. 53-3); Def. Myers' Answer ¶ 12 (ECF No. 53-4). At approximately 9:00am, one or more pedestrians fired multiple gunshots into the pickup truck causing gunshot injuries to both defendants. Pl. Compl. ¶ 13 (ECF No. 53-5); Def. Myers' Answer ¶ 13.
Defendant Smith filed a pro se answer (ECF No. 5) in this action. Thus, the undersigned entered an Order (ECF No. 8), directing Defendant Smith the keep the court advised in writing if his address changed for any reason. He was warned that a failure to do so may cause him to miss a deadline, thereby causing serious consequences to his defense of this case. Since October of 2020, all mail sent by the court to Defendant Smith at the address he initially provided to the court has been returned as undeliverable. See ECF Nos. 46, 48, 62.
Earlier in the morning prior to the gunshots, Defendant Smith and another individual, C-Roy, were involved in an altercation in the yard of a house near the intersection of Commander and Booker Streets. McNeil Dep. 12:5-14:1; 14:22-15:1 (ECF No. 53-3). Lacy Williams observed the altercation between Defendant Smith and C-Roy. Williams Dep. 14:24-16:1 (ECF No. 54-4). Defendant Smith and C-Roy were arguing, and C-Roy hit Defendant Smith in the side of his head which knocked him out. Williams Dep. 17:18-22. He was passed out on the ground for ten to fifteen minutes before being helped into his truck. Williams Dep. 17:22-18:2.
“C-Roy” is later identified as Dominique Williams, who was ultimately arrested for the shooting. Incident Report 2018-000715 (ECF No. 53-9).
McNeil testified that after the altercation Defendant Smith was upset and drove around the corner to his grandfather's house. McNeil Dep. 16:12-18. He then returned to the location of the altercation to apologize to the owner of the property and let her know that he did not start the fight in her yard. McNeil Dep. 17:4-18:16. The owner told Defendant Smith to “just go ahead and leave, ” so Defendant Smith returned to his grandfather's house. McNeil Dep. 18:16-17, 19:9. After Defendant Smith left his grandfather's house the second time, he returned to Booker Street and that is when shots were fired into his truck. McNeil Dep. 19:9-23. A witness, India Burgess, observed Defendant Smith's truck go around the block of Commander and Booker Streets twice before the shooting. Burgess Dep. 24:11-24 (ECF No. 54-3).
Defendant Myers was asleep for a period of time before, during, and after the shooting. Myers testified he was asleep at the time of the shooting and does not have an independent recollection about the morning of the shooting. Myers' Dep., Oct. 26, 2020, 10:10-17 (ECF No. 53-6)). Myers testified he does not remember the shooting, or the events preceding the shooting, including at what time he entered Defendant Smith's pickup truck. Myers' Dep., Sept. 20, 2019, 44:2-25 (ECF No. 53-7). The last thing Myers remembers is going to a club approximately one block from his aunt's house at 2 or 3am with a bottle of vodka - more than 6 hours before the shooting assault on Smith's truck. Myers Dep. Sept. 20, 2019, 45-46. Myers testified “I ain't saw nothing. I was asleep.” Myers Dep. Oct. 26, 2020, 16:19.
Defendant Kendall Smith testified he was driving his truck at the time of the shooting on Booker Street toward North Dargan Street and that Corey McNeil and Delarwn Myers were passengers. Smith Dep. 6:15-18; 9:5-13. Smith testified he stopped at the stop sign at the intersection of Commander Street and Booker Street, proceeded through the intersection, and after he crossed over Commander Street the shooting began. Smith Dep. 21:18-22:10. Smith further testified he was not driving fast at the time of the shooting because he had just stopped at the stop sign. Smith Dep. 14:8-14:16. Smith testified he did not see the person or persons shooting at the truck. Smith Dep. 5:2-6; 15:16-16:1. Smith further testified he kept driving down Booker Street to get away from the shooting and his truck was not being chased by any vehicles. Smith Dep. 16:21-17:7; 17:13-16. Smith further testified he did not have any weapons in his truck at the time of the shooting and that no one inside his truck was shooting out of the truck. Smith Dep. 17:22-24; 18:4-6. Smith further testified that he was not driving around looking for any retaliation in regards to the altercation he was involved in earlier that same morning. Smith Dep. 27:25-28:6.
Passenger Corey McNeil testified the shooting began as Smith was driving down Booker Street. McNeil Dep. 19:19-23. McNeil testified the purpose of the trip, prior to the shooting, was to drop himself and Myers off at their homes, but he and Smith started talking, reminiscing, and just riding around. McNeil Dep. 21:13-24. McNeil testified they were not driving around looking for C-Roy or his friends to start any problems. McNeil Dep. 21:25-22:11.McNeil also testified there was never any discussion with Smith about retaliation against C-Roy with regard to the earlier altercation. McNeil Dep. 29:15-21; 30:16-23. McNeil further testified no one that day, even during the earlier altercation, had made threats of gun violence. McNeil Dep. 24:8-12. McNeil also testified he did not have a weapon on him and he did not see Smith with a weapon. McNeil Dep. 22:22-23:6. McNeil testified the shooting was an “unexpected situation.” McNeil Dep. 23:7-23:13. McNeil further testified the gunshots were fired to the driver's side of the truck by multiple shooters standing on the side of the road. McNeil Dep. 23:18-24:1. McNeil testified that when the shots were fired, Smith drove away from the shots and stopped at a Church for help. McNeil Dep. 24:15-25.
Jesse Jones, a witness, testified he pulled into the driveway of the house he owns on Commander Street, heard gunshots, and saw people running to look at what was going on. Jones' Dep. 8:11-24; 9:21-10:11 (ECF No. 53-8). Mr. Jones further testified he saw a single shooter on foot, standing in the middle of the street, and shooting at the back of a gray-looking truck. Jones Dep. 11:9-11:16; 12:4-19. Mr. Jones testified the truck was stopped on Booker Street, facing North Dargan, and the shooter was standing on Commander Street at the time of the shooting. Jones Dep. 13:14-23; 23:20-23. Mr. Jones testified after the shooting stopped, the shooter ran away on foot, and then Smith drove off in the truck. Jones Dep. 20:10-12; 20:19-21:1. Mr. Jones testified that no one inside the truck was shooting and the windows were rolled up. Jones Dep. 21:9-22:1; 22:5-6.
City of Florence Police Officers responded to the incident location to investigate. Incident Report 2018-000715 (ECF No. 53-9). No. weapons or firearms were found in Smith's truck. Search Warrant Return (ECF No. 53-10). The day after the shooting, Officer Cantey obtained arrest warrants against Dominique Maurice Williams, a/k/a C-Roy, for the offenses of attempted murder (3 counts), possession of a weapon during a violent crime, and discharging a firearm into a vehicle. Arrest Warrants 2018A2120200185, -186, -187, -188, and -189 (ECF No. 53-11). On January 29, 2018, Williams was arrested.
In the underlying action between Defendant Myers and Defendant Smith, Defendant Myers alleges causes of action for negligence, carelessness, recklessness, willfulness, wantonness, and grossly negligent conduct. At the time of the shooting, State Farm issued a personal Car Policy, Policy No. 574 1896-F12-40 (the Policy), to Defendant Smith providing coverage on a 2002 Ford F-150 pickup truck for the policy term(s) 12/12/2017 to 02/28/2018. Defendant Myers alleges that Defendant Smith actively sought out a third-party with whom he had been involved in an altercation that morning, and that the third-party, upon seeing Defendant Smith's truck, fired several shots into the truck. Underlying Action Pltf. Compl. ¶¶ 7-10 (ECF No. 53-12). Defendant Myers later testified that he believes the other passenger, McNeil, was going to expose a scandalous secret about Jeremiah Washington which created the altercation that morning, that Washington was one of the shooters, and the motive behind the shooting was to keep McNeil from disclosing that secret. Myers' Dep., Sept. 20, 2019, 58:20-60:15, 65:19-25.
III. STANDARD OF REVIEW
Under Fed.R.Civ.P. 56, the moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Id. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4thCir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324. Rather, the party must present evidence supporting his or her position 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.” Fed.R.Civ.P. 56(c)(1)(A); see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
IV. DISCUSSION
Automobile liability policies issued in South Carolina must contain “a provision insuring the persons defined as insured against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use of these motor vehicles . . . .” S.C. Code Ann. § 38-77-140. State Farm's policy of insurance provides liability coverage for Smith's “ownership, maintenance or use” of the vehicle described in the policy, and provides uninsured and underinsured motorist coverage for bodily injury that “must be caused by an accident that involves the operation, maintenance or use of an [uninsured or underinsured] motor vehicle. Ins. Policy pp. 6, 22, and 24 (ECF No. 53-13). The Supreme Court of South Carolina has established a three-part test for determining whether injuries inflicted by an assault or shooting, arise out of the “ownership, maintenance, or use” of an automobile so as to trigger automobile insurance coverage. State Farm Fire & Cas. Co. v. Aytes, 332 S.C. 30, 503 S.E.2d 744 (S.C. 1998) and State Farm Mut. Auto. Ins. Co. v. Bookert, 337 S.C. 291, 523 S.E.2d 181 (S.C. 1999). The three-prong test established in Aytes requires:
1. “the party seeking coverage must establish a causal connection between the vehicle and the injury[;]”
2. “there must exist no act of independent significance breaking the causal link[; and]”
3. “it must be shown the vehicle was being used for transportation at the time of the assault.”Aytes, 332 S.C. at 33, 503 S.E.2d at 745 (internal citations omitted).
Under the first prong, a “causal connection is established where it can be shown[:]”
1. “the vehicle was an ‘active accessory' to the assault[;]”
2. “[t]he causation required is something less than proximate cause and something more than the vehicle being the mere site of the injury[;and]”
3. “[t]he injury must be foreseeably identifiable with the normal use of the vehicle.”Id. at 33, 503 S.E.2d at 745-76. A causal connection “does not exist when the only connection between an injury and the insured vehicle's use is the fact that the injured person was an occupant of the vehicle when the shooting occurred.” Id. at 33, 503 S.E.2d at 746. The Aytes test applies “regardless of whether the injury occurred as a result of an intentional assault or an accident.” Peagler v. USAA Ins. Co., 368 S.C. 153, 160, 628 S.E.2d 475, 479 (S.C. 2006). “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, 368 S.C. at 160, 628 S.E.2d at 479.
Here, the facts show that Defendant Myers, a passenger in the insured vehicle, was shot when the driver of the vehicle, Defendant Smith, drove near the scene of an earlier physical altercation between the driver and C-Roy, and C-Roy, who was on foot, shot into the vehicle. The parties dispute whether Defendant Smith drove to the location of the shooting looking for revenge against C-Roy for the previous altercation, or, at the least, looking for another encounter with C-Roy. Nevertheless, Plaintiff argues that even assuming this to be true, it would not be enough to establish causal connection between the injury and the use of the vehicle.
The first prong in determining whether a causal connection exists between an injury and the vehicle is whether the vehicle was an “active accessory” to the assault. In Aytes, the vehicle was used to intentionally transport the victim to the location of the shooting. Aytes, 332 S.C. at 33, 503 S.E.2d at 746. The assailant driver got out of the car, went around to the passenger side where the victim was sitting, and shot her while she was still sitting in the car and the assailant driver was standing outside of the car. Id. The Supreme Court found that vehicle was not an active accessory to the injury because the only connection between the car and the injury was the fact that the victim was sitting in the car when she was shot. Id. at 35, 503 S.E.2d at 746.
In reaching this conclusion, the Aytes court distinguished its facts from those in Howser Underwriters Ins. Co. v. Howser, 309 S.C. 269, 422 S.E.2d 106 (1992). In Howser, “the insured sustained gunshot wounds while traveling on a public highway in an insured vehicle and during a vehicular chase by an unknown assailant in an unidentified vehicle. The Court found the unknown vehicle was an active accessory to this assault.” Aytes, 332 S.C. at 34, 503 S.E.2d 746. The Howser court stated,
Only through use of his vehicle was the assailant able to closely pursue Howser, thereby enabling him to carry out the pistol assault. The gunshot was the culmination of an ongoing assault, in which the vehicle played an essential and integral part. Additionally, only a motor vehicle could have provided the assailant a quick and successful escape. Thus, we find a sufficient causal connection exists between the use of the assailant's vehicle and Howser's injuries.Howser, 309 S.C. at 273, 422 S.E.2d at 108. The Aytes court noted that Howser “was not a case in which the assailant merely used the vehicle to provide transportation to the situs of the shooting.” Aytes, 332 S.C. at 34, 503 S.E.2d at 746. The connection between the insured vehicle and the injury in the present case is even more attenuated than in Aytes because the assailant in the present case did not use a vehicle, much less the insured vehicle, at any time. A third party used the vehicle to provide transportation to the location of the shooting, which, as Aytes found, was not enough to show that the vehicle was an active accessory to the assault.
In addition, the Aytes court found its facts distinguishable from those in Home Ins. Co. v. Towe, 314 S.C. 105, 441 S.E.2d 825 (1994), where injuries were sustained by a victim when he was struck by a bottle thrown by a passenger in a passing car. The Towe court stated that “the use of the automobile placed [assailant] in the position to throw the bottle at the sign and the vehicle's speed contributed to the velocity of the bottle increasing the seriousness of [victim's] injuries.” Towe, 314 S.C. at 108, 441 S.E.2d at 827. Again, in the present case, as in Aytes, the vehicle was used only in the transportation of the victim to the site of the shooting.
The Aytes court found that the facts in that case were more akin to those in Nationwide Mut. Ins. Co. v. Brown, 779 F.2d 984 (4th Cir. 1985). In Brown,
[a] fatal shooting occurred when husband, a passenger in a truck, caused the truck driver to collide with his wife's vehicle and husband jumped out of truck and shot his wife in her vehicle. The court concluded that the use of the truck for transportation to the scene of the shooting was merely incidental, remote from the type of conduct that is reasonably foreseeable with the normal use of a vehicle and not the causative factor in producing wife's death. Instead, the assault in Brown was viewed by the court as an act wholly independent of the use of the truck and the cause of the death. The incidental use of the truck in the shooting was not found to meet the causal relation test of coverage.Aytes, 332 S.C. at 34-35, 503 S.E.2d at 746.
The South Carolina Supreme Court and this Court have found under other factual scenarios as well that transportation to the place where the ultimate harm was inflicted is insufficient to show that the vehicle used was an active accessory to the assault. See Doe v. S.C. State Budget & Control Bd., 337 S.C. 294, 523 S.E.2d 457 (1999) (holding that transportation to a more secluded place to accomplish a coerced sexual encounter was not a sufficient connection); Nationwide Prop. & Cas. Co. v. Lain, 402 F.Supp.2d 644, 649 (D.S.C. 2005) (holding that forcing the victim into the passenger's seat of her own vehicle, keeping the victim in the vehicle, and transporting her to a more remote area where she was ultimately killed by strangulation was not enough to establish a causal connection). In both Doe and Lain, the vehicle was used by the assailant to transfer the victim to the location of the assault and, still, the vehicle was found not to be an active accessory to the assault.
Two other cases are instructive as well, both of which found no coverage for an assault because the insured vehicle was not an active accessory. Wright v. North Area Taxi, Inc., 337 S.C. 419, 523 S.E.2d 472 (S.C.Ct.1999) involved two assailants who, while riding as passengers in a taxi, attempted to rob the driver. Id. at 473. The driver was shot during the incident, causing her to lose control of the vehicle and crash into a parked car. Id. The driver died from her injuries. Id. The South Carolina Court of Appeals held that there was no causal connection between the driver's injuries and the vehicle because “the vehicle served merely as the situs of shooting[, ]” as opposed to an instrumentality that furthered the cause of the assailants. Id. at 475. The court observed that “the same injuries could have occurred when the vehicle was parked, or otherwise not moving, or when [the driver] and [the assailants] were standing outside the vehicle.” Id. at 476.
In Nationwide Mut. Fire Ins. Co. v. Jeter, No. CA 3:12-1759-MBS, 2013 WL 3109214 (D.S.C. June 18, 2013), a dispute arose between the driver and passenger in a vehicle, and the driver deployed a can of pepper spray into the passenger's face. Id. at *1. When the vehicle reached an intersection, the passenger exited and the driver deployed more pepper spray in the direction of the passenger as she walked away. Id. The driver turned the vehicle around and returned to where the passenger was. The driver exited the vehicle and again deployed pepper spray in the passenger's direction. Id. As to the first assault, which occurred when both the driver and the passenger were inside the vehicle, the court found that the moving vehicle was not essential to accomplishing the assault, as the driver easily could have deployed pepper spray against the passenger when the vehicle was motionless, or while the women were standing outside the vehicle, which is what occurred in the final assault. Id. at *4. In the present case, as in both Wright and Jeter, the vehicle served merely as the situs of the shooting, and the same injuries could have occurred outside the vehicle.
Although Plaintiff cites many of the cases discussed above in its memorandum in support of its motion, Defendant Myers does not address them in his response. Defendant Myers argues, without citation to case law, that Defendant Smith was using his insured vehicle to locate his assailant from a previous altercation and, thus, him driving to a known dangerous area and the subsequent shooting are inextricably linked. However, as discussed above, even when an assailant drives a victim to a location for the purpose of harming the victim, the South Carolina Supreme Court and this court have held that the vehicle is not an active accessory to the assault. Aytes, 332 S.C. at 35, 503 S.E.2d at 746; Brown, 779 F.2d at 989; Doe, 337 S.C. at 297, 523 S.E.2d at 458; Lain, 402 F.Supp.2d at 649. Even when viewing the facts in the light most favorable to Defendants, the fact that Defendant Smith drove his vehicle with Defendant Myers as a passenger to a location he knew to be dangerous because of a previous altercation there earlier in the morning is insufficient to show a causal connection between the vehicle and Defendant Myers' injury to find that the injury arose out of the “ownership, maintenance, or use” of the automobile so as to trigger automobile insurance coverage.
Because the injuries sustained by Defendant Myers did not result from the ownership, maintenance, or use of the insured vehicle, the State Farm policy at issue in the action does not provide coverage for any claims made by Defendant Myers arising out of the incident that is the subject of the underlying action.
V. CONCLUSION
For the reasons discussed above, it is recommended that Plaintiff's Motion for Summary Judgment (ECF No. 53) be granted and judgment be entered on behalf of Plaintiff.