Appeal from the Circuit Court of Williamson County; the Hon.
Robert H. Howerton, Judge, presiding.
JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Plaintiff, Bradley Toler, brought the instant declaratory judgment action to determine whether injuries sustained by him while on a hunting trip with the insured, Randy Lingle, came within the terms of a personal vehicle insurance policy issued to Lingle by the defendant, Country Mutual Insurance Company (Country Mutual). Under this policy Country Mutual was obligated to pay damages caused by accidents "arising out of the * * * use, including loading and unloading," of the pickup truck owned by Lingle. The plaintiff was injured as Lingle was unloading ammunition from a rifle before loading it into his truck. The rifle discharged and caused the truck's windshield to shatter, thereby injuring the plaintiff. After a trial upon stipulated facts, the court found that this accident came within the coverage of Lingle's policy and directed Country Mutual to defend Lingle in the personal injury suit filed against him by the plaintiff. We affirm.
The parties' stipulation of facts stated that on December 18, 1976, plaintiff Toler, defendant Lingle and Kelton Greer went coyote hunting in Union County, Illinois, south of Dongola. At sometime between 7 and 8 a.m., the defendant picked up the plaintiff and Greer in his pickup truck and drove to the Charles Brown farm south of Dongola, Illinois. The three men planned to hunt coyotes on the Brown farm and the adjoining farm of Don Fisher. Upon arrival at the Brown farm, the three men got out of the pickup truck of the defendant, took their rifles and began hunting. They later came back to the pickup truck and prepared to leave. Defendant Lingle spotted a coyote, got out of the pickup truck with a Remington rifle owned by Bradley Toler, which he had used on numerous occasions, and went out into the field after the coyote he had spotted. He fired at the coyote and missed it. He then returned to the pickup truck. By the time Lingle got back to the pickup truck, Greer and Toler had unloaded their guns and stored them in the back of the truck. Greer and Toler were in the cab of the pickup truck, with Greer sitting in the passenger seat and Toler sitting in the middle of the seat.
Lingle came back to the truck and opened the door. While standing outside of the truck with the door of the truck open and while in close proximity to the truck, he proceeded to begin unloading the Remington rifle owned by Toler, which had been loaded with .243 caliber shells. These shells were reloads, having been reloaded by Toler. Lingle ejected the empty shell that he had previously fired at the coyote by pulling up on the bolt and pulling it back, causing the shell to be ejected onto the seat of the pickup truck. When he pushed the bolt forward to unload the next shell, the rifle fired. At the time the rifle fired, Lingle was standing outside of the truck holding the rifle in an attempt to unload it. When the rifle fired, the bullet entered the truck through the open driver's door and struck the glass of the windshield. This caused the windshield to shatter and injure the plaintiff.
The plaintiff brought suit against Lingle for his injuries sustained in the accident and subsequently filed the instant declaratory judgment action against Lingle's insurer, Country Mutual. In the complaint against Country Mutual, the plaintiff alleged that Country Mutual had refused to defend Lingle under its insurance policy with him on the basis that the policy did not cover the occurrence in question. The trial court entered judgment against Country Mutual, finding that the policy did apply to the subject occurrence and that Country Mutual had a duty to defend Lingle in the suit against him and to pay any judgment that might be recovered against Lingle by the plaintiff.
On appeal from this judgment Country Mutual contends that the trial court erred in finding that the accident in question came within the coverage of the policy. In pertinent part the policy provided coverage for bodily injury "caused by accident arising out of the ownership, maintenance or use, including loading or unloading" of the insured vehicle. Country Mutual asserts that the accidental discharge of the rifle here did not arise from the use of the truck, or from the loading which is part of its use, because Lingle's act of removing shells from the rifle occurred prior to his loading the rifle into the truck and was not part of the process of loading the truck. Country Mutual contends further that regardless of whether or not the accident occurred during the loading process, the causal relation between the accident and the use of the truck was insufficient to give rise to liability under the policy.
The applicability of the "loading and unloading" clause of a motor vehicle insurance policy to a situation such as that here involved has not been ruled upon by the courts> of this State. Courts> of other jurisdictions, however, have construed the pertinent policy language in analogous fact situations to hold that coverage exists for injuries resulting from the accidental discharge of firearms being loaded into or unloaded from a vehicle. (See Laviana v. Shelby Mutual Insurance Co. (D. Vt. 1963), 224 F. Supp. 563; Allstate Insurance Co. v. Valdez (E.D. Mich. 1961), 190 F. Supp. 893; Viani v. Aetna Insurance Co. (1972), 95 Idaho 22, 501 P.2d 706; Travelers Insurance Co. v. Aetna Casualty & Surety Co. (Tenn. 1973), 491 S.W.2d 363; Allstate Insurance Co. v. Truck Insurance Exchange (1974), 63 Wis.2d 148, 216 N.W.2d 205; see also Dorsey v. Fidelity Union Casualty Co. (Tex. Civ. App. 1932), 52 S.W.2d 775.) The facts of the instant case bring it within the rule of these cases, and we adopt the reasoning there employed to find that coverage exists under the policy in question.
As a general rule an accident, in order to come within the coverage of a "loading and unloading" clause, must have occurred during the process of loading and unloading the vehicle in question and must be causally connected with the act of loading or unloading. (7 Am.Jur.2d Automobile Insurance sec. 208 (1980).) To determine what constitutes loading and unloading under the first part of this test, courts> have adopted two basic views: the "coming to rest" doctrine, under which "loading" consists of only the actual lifting and placing of an article into the vehicle, and the "complete operations" doctrine, under which "loading" includes the entire process involved in moving the article. Under the latter doctrine, no distinction is made between loading and acts preparatory to loading. (Allstate Insurance Co. v. Valdez (E.D. Mich. 1961), 190 F. Supp. 893; Travelers Insurance Co. v. Aetna Casualty & Surety Co. (Tenn. 1973), 491 S.W.2d 363.) The "complete operations" doctrine is generally characterized as the modern view and is supported by the weight of authority. 12 Couch on Insurance sec. 45:128 (2d ed. 1981); see Annot., 6 A.L.R.4th 686 (1981).
In arguing that Lingle's act of removing shells from the rifle here was not part of the process of loading it into the truck, Country Mutual urges this court to apply the narrower "coming to rest" doctrine. We note, however, that Illinois courts> have adopted the "complete operations" view in construing "loading and unloading" clauses in a commercial setting. (Estes Co. v. Employers Mutual Casualty Co. (1980), 79 Ill.2d 228, 402 N.E.2d 613; see Liberty Mutual Insurance Co. v. Hartford Accident & Indemnity Co. (7th Cir. 1958), 251 F.2d 761; Coulter v. American Employers' Insurance Co. (1948), 333 Ill. App. 631, 78 N.E.2d 131.) This construction has not been limited to commercial transactions, and there is no distinction in the policy itself regarding commercial and personal vehicles. (See Allstate Insurance Co. v. Valdez (E.D. Mich. 1961), 190 F. Supp. 893; 7 Am.Jur.2d Automobile Insurance sec. 208, at 728-29 (1980).) Moreover, in the instant factual setting, we believe, as did the court in Allstate Insurance Co. v. Valdez, that it is the better view to regard the preparatory act of removing shells from the rifle as an integral part of the loading process.
In Allstate Insurance Co. v. Valdez (E.D. Mich. 1961), 190 F. Supp. 893, the insured (Valdez) was ejecting shells from a shotgun preparatory to placing the gun in the trunk of his car when the gun discharged, killing an occupant of the vehicle. The court followed the "complete operations" doctrine and found that this act was part of the loading process, even though Valdez was 25 feet from the vehicle at the time. Noting that, under Michigan statute, the removal of ammunition from a weapon is required before it is transported in a vehicle, the court continued:
"It would appear that Valdez was fulfilling his legal obligation by ejecting the shells preparatory to placing the weapon in the trunk of his car. * * * [T]he other three hunters had deposited their weapons in the trunk of Valdez' car, the trunk lid was up, and the hunters were waiting for Valdez, who would drive them back to Detroit. Under these circumstances where Valdez was ready to `load' his shotgun into the trunk but, as a preparatory step, was attempting to comply with the safety requirements of the Michigan statute, the ejection of the shells was an integral part of the `loading' process * * *." (190 F. Supp. 893, 896.)
Thus, the court concluded, Valdez' distance from the vehicle at the time of the accident was "not per se an accurate measuring device of the extent to which `loading' [had] begun. The test [was] whether the activities resulting in the injuries [were] a part of the entire `loading' scheme." 190 F. Supp. 893, 896. Cf. Laviana v. Shelby Mutual Insurance Co. (D. Vt. 1963), 224 F. Supp. 563, 565 (insured who was unloading gun in preparation of entering car when car door struck him causing gun to discharge was in the process of "loading" gun into car within meaning of automobile insurance policy. The court noted that unloading the gun was a "safe and customary practice which should be performed before entering a car" and that the insured was "standing near the open door * * * in anticipation of entering").
The facts of the instant occurrence present an even stronger case for finding liability under the "loading and unloading" clause than did the facts of Valdez. Here it was stipulated that Lingle was standing in close proximity to the truck with the door open as he ejected shells from the rifle onto the seat of the truck. His companions had previously unloaded their guns before storing them in the back of the truck and were waiting in the front seat for Lingle to do the same. It cannot be disputed that the three hunters were preparing to leave and that they were loading their guns into the truck for that purpose. Before physically placing the rifle into the truck, Lingle had to unload the ammunition from it to comply with statutory requirements (see Ill. Rev. Stat. 1975, ch. 38, par. 24-1 (unlawful to carry loaded firearm in vehicle within corporate limits of city, village or town)) and to conform to sound safety practice. Thus, while the term "loading" in the policy must be given its plain and ordinary meaning (see Viani v. Aetna Insurance Co. (1972), 95 Idaho 22, 501 P.2d 706), we believe it can be said that Lingle's act of removing shells from the rifle was an integral part of the process of loading it into the truck so as to come within the coverage of the policy. Cf. State Farm Mutual Automobile Insurance Co. v. Centennial Insurance Co. (1975), 14 Wn. App. 541, 544, 543 P.2d 645, 647 (court observed that "the unloading of one's rifle preparatory to entering a vehicle is the kind of customary behavior contemplated by the parties to a hunting trip. Thus, it is specifically anticipated behavior and coverage is intended by the parties to an insurance contract" (emphasis in original)).
Our judgment in this regard is not altered by Country Mutual's assertion that such an application of the "complete operations" doctrine could lead to absurd results in other hypothetical cases involving the loading of firearms into a vehicle. As with the application of any doctrine or test, each case must turn upon its particular facts. (Travelers Insurance Co. v. Aetna Casualty & Surety Co. (Tenn. 1973), 491 S.W.2d 363.) Despite the hypothetical situations possible, the facts of the instant case control our determination that loading had begun when the accident occurred.
Country Mutual argues additionally that the causal connection between the accident and the insured's use of the vehicle here was insufficient to give rise to liability under the policy. This argument is closely related to the question of whether Lingle's act of removing shells from the rifle came within the loading process, since loading necessarily constitutes a use of the truck (see Western Casualty & Surety Co. v. Branon (E.D. Ill. 1979), 463 F. Supp. 1208; General Accident Fire & Life Assurance Corp. v. Brown (1962), 35 Ill. App.2d 43, 181 N.E.2d 191). Country Mutual contends that even if the accident occurred during the loading process, the discharge resulted not from this use of the truck but from Lingle's use of the rifle. Thus, Country Mutual asserts, the accidental discharge could have occurred anywhere and the truck was merely the situs of the occurrence. Country Mutual points out further that, unlike in Laviana v. ...