Appeal from SUPERIOR COURT SPOKANE COUNTY. Superior Court No: 94-2-02082-4. Date filed in Superior Court: 12/16/94. Superior Court Judge signing: RICHARD SCHROEDER.
Author: Philip J. Thompson, Concurring: Dennis J. Sweeney & John A. Schultheis
THOMPSON, J. --Theresa R. Culp appeals the superior court's summary judgment order, which held Allstate Insurance Company's policy on her parents' vehicle did not cover her injuries from an accidental shooting. We affirm.
On September 25, 1990, Theresa R. Culp was a passenger in a Toyota pickup truck driven by Craig Jurs. Ms. Culp was sitting in the passenger seat; two friends, Charity Sperry and Kraig Brumbaugh, were seated on pillows in the bed of the truck. The four teenagers had just returned to Spokane from the Tri-Cities and were going to Mr. Jurs' parents' home on 18th Street. Ms. Sperry was
seated in the left side of the pickup bed behind the driver; Mr. Brumbaugh was seated on the passenger side.
As the pickup approached the Jurs residence, Mr. Brumbaugh picked up a pillow and threw it out of the truck. He did this to tease Mr. Jurs, because the pillow belonged to Mr. Jurs' mother. Mr. Jurs stopped the pickup in his parents' driveway and told Mr. Brumbaugh to get out of the truck and pick up the pillow. When the truck stopped, Ms. Culp got out and walked to the area of the right rear wheel and stood next to Mr. Brumbaugh.
Mr. Brumbaugh continued to tease Mr. Jurs and refused to pick up the pillow. Mr. Jurs got out of the driver's side, arming himself with a shotgun that he regularly carried behind the driver's seat. He stepped to the passenger side, raised the gun to shoulder level and pointed it at Mr. Brumbaugh in a teasing manner, still demanding that he get out of the truck and pick up the pillow.
Mr. Brumbaugh responded playfully and said something to the effect of "a gun, cool, huh." The gun then discharged. Mr. Brumbaugh was killed, and numerous shotgun pellets struck Ms. Culp's head, face, neck and shoulder.*fn1
According to Ms. Sperry, Mr. Jurs was holding the shotgun in a steady position, aimed at Mr. Brumbaugh, when it discharged. There was no reason to believe the gun discharged while being unloaded from the pickup, or that it discharged due to coming in contact with the pickup.
Ms. Culp made a claim for underinsured motorist (UIM) benefits under her parents' policy with Allstate, pursuant to the following coverage provision:
We will pay damages for bodily injury or property damage which an insured person is legally entitled to recover from the owner or operator of an underinsured motor vehicle. Injury must be caused by accident and arise out of the ...