author: MEIERHENRY, Justice. ZINTER, Justice

text:
    2008 SD 36
    NORTH STAR MUTUAL INSURANCE COMPANY, Plaintiff and Appellee, v. Brad PETERSON, Lenny Peterson, and Danny Peterson, d/b/a Peterson Farms; Jeb Peterson, Mitchell Peterson, Defendants and Appellees, and Milbank Insurance Company, Defendant and Appellant.
    No. 24449.
    Supreme Court of South Dakota.
    Argued Oct. 2, 2007.
    Decided May 7, 2008.

      Michael J. Schaffer of Schaffer Law Office, Prof., LLC, Sioux Falls, South Dakota, for appellee, North Star.
    Rodney Freeman, Jr. of Churchill, Ma-nolis, Freeman, Kludt, Shelton & Burns, Huron, South Dakota, for appellees Peterson.
    Robert B. Anderson of May, Adam, Gerdes & Thompson, LLP, Pierre, South Dakota, for defendant and appellant.
   MEIERHENRY, Justice.

[¶ 1.] This case involves a question of automobile insurance coverage for injuries sustained when a gun discharged while deer hunters were waiting to be transported to the fields. The circuit court found that the automobile liability policy covered the gunshot injuries.

[¶ 2.] Milbank Insurance Co. (Milbank) issued the automobile liability policy in question to Peterson Farms. Brad, Lenny and Danny Peterson were general partners in Peterson Farms. In addition to the Milbank automobile liability policy, Peterson Farms had an umbrella liability policy from North Star Mutual Ins. Co. (North Star). The circuit court found coverage under Milbank’s personal automobile liability policy. Milbank appeals. The court found no coverage under North Star’s umbrella policy because of exclusions specified in the policy. The ruling as to North Star’s coverage has not been appealed.

[¶ 3.] In a trial to the court, the parties stipulated to most of the relevant facts. The day before the accident, Brad Peterson had been deer hunting with his sons Jeb and Shane. Eleven-year-old Jeb was using his father’s Winchester Model 94, .30-.30 lever action rifle to hunt varmints such as coyote or fox. While the hunting party was loading the rifles into the pickup at the conclusion of the hunt, a friend drove up and assisted young Jeb with loading the rifle into the vehicle. The friend ejected the round out of the chamber and opened the lever. The open lever made the rifle safe from discharge; however, its magazine still held ammunition. The friend placed the rifle into the back seat of the Peterson’s vehicle. He propped it near the middle of the backseat of the pickup with the barrel end on the floor and the butt leaning against the back of the seat. The hunting party then returned to Brad’s home driving through fields and over country roads. The rifle remained in the vehicle.

[¶ 4.] The next morning, Brad, Shane and Lenny’s fourteen-year-old son, Mitch again went deer hunting. While hunting, they walked through a slough and got their clothing wet. They removed and threw the wet hunting clothes in the pickup’s backseat on top of the rifle. The hunting party then returned to Brad’s home. Later that afternoon, Brad, Shane, Mitch and Jeb prepared to go hunting again. They got into the pickup: Brad and Shane in the front seat, Mitch and Jeb in the backseat. The rifle was still in the backseat situated between Jeb and Mitch. Jeb noticed that the wet hunting clothes were lying on the rifle and that the barrel had moved sideways and was unsafely pointed at Mitch’s leg. Jeb grasped the rifle in an attempt to reposition it away from Mitch’s leg. As he moved the rifle, it discharged and struck Mitch’s left ankle and grazed his right ankle.

[¶ 5.] The pickup engine was on and idling but the pickup was not moving at the time of the accident. The hunting party assumed that the vehicle’s movement over the two days had jostled the rifle causing the lever to close and that their wet hunting clothing on top of the gun had caught and pulled the trigger. There was no evidence that anyone had handled the gun since its placement in the pickup the day before.

[¶ 6.] Milbank brought a declaratory judgment action asking the circuit court to determine whether its automobile liability policy with Peterson Farms covered Mitch’s bodily injuries arising from this hunting accident. The dispute centers on the language in Milbank’s insurance policy defining coverage. The terms of the policy provide that “[Milbank] will pay damages for ‘bodily injuries’ or ‘property damage’ for which any insured becomes legally responsible because of an auto accident....” The policy further defines an “insured” as “you or any family member for the ownership, maintenance or use of any automobile or trailer.”

[¶ 7.] The circuit court determined that Milbank was liable under the terms of the insurance policy. The court reached that conclusion by finding ambiguity in the term “auto accident,” in part because it was undefined in the policy. The court then applied the rules of construction for insurance contracts and interpreted the ambiguous term in the insured’s favor. Milbank argues that the circuit court erroneously found that the term, “auto accident,” was ambiguous solely because it was undefined in the policy. Milbank claims that the plain meaning of the policy’s term “auto accident” does not cover the accidental shooting. Milbank raises the following issue on appeal:

ISSUE

Whether the circuit court erred in holding that the shooting incident of November 24, 2001, was the result of an “auto accident” as that term is used in the Milbank insurance policy.

[¶ 8.] Our standard of review is de novo. We review a declaratory judgment under SDCL 21-24-13 “as we would any other judgment or order.” Gloe v. Union Ins. Co., 2005 SD 30, ¶7, 694 N.W.2d 252, 256. “When interpreting insurance contracts, we have uniformly held them reviewable as a matter of law under the de novo standard.” Opperman v. Heritage Mut. Ins. Co., 1997 SD 85, ¶ 3, 566 N.W.2d 487, 489 (citing De Smet Ins. Co. v. Gibson, 1996 SD 102, ¶ 5, 552 N.W.2d 98, 99) (other citations omitted).

[¶ 9.] The circuit court determined that since the Milbank policy did not define the term “auto accident,” the term was ambiguous and construed the term broadly in favor of the insured to find coverage. Milbank argues that the absence of a definition in the policy does not render the term ambiguous, and that the plain meaning of the term excludes coverage. Generally, we agree that the mere absence of a definition does not alone create ambiguity.

[¶ 10.] Ambiguity is created when the language in an insurance contract “is fairly susceptible to two constructions.” Nat’l Sun Indus., Inc. v. South Dakota Farm Bureau Ins. Co., 1999 SD 63, ¶ 18, 596 N.W.2d 45, 48 (citing Econ. Aero Club v. Avemco Ins. Co., 540 N.W.2d 644, 645 (S.D.1995) (citations omitted)). Ambiguity is “determined with reference to the policy as a whole and the plain meaning and effect of its words.” Id. By the terms of the policy, Milbank agreed to “pay damages for ‘bodily injuries’ or ‘property damage’ for which any insured becomes legally responsible because of an auto accident.... ” Although the parties disagree on the meaning of the terms, their meaning can be determined without resorting to an ambiguity analysis.

[¶ 11.] Milbank argues that the accidental discharge of the firearm in the backseat of the vehicle cannot be considered an “auto accident” as that term is defined under any common sense analysis. Milbank views the situation as one where an accident took place in an automobile and did not constitute an automobile accident. Milbank claims that the auto was merely the site of the occurrence and that there was no causal connection between the vehicle’s use and the injury-producing event.

[¶ 12.] Nevertheless, Milbank does not dispute that the policy covers accidents arising out of the “ownership, maintenance and use” of the vehicle. Milbank conceded during oral arguments that the statutory language covering “damages arising out of the ownership, maintenance, or use of the vehicle,” must be considered when interpreting the insurance policy and that the language was, in effect, part of the policy. SDCL 32-35-70. Additionally, the policy uses these terms in its definition of insured. The Milbank policy defines “insured” as “you or any family member for the ownership, maintenance or use” of a vehicle. The policy also provides that “[w]hen this policy is certified as future proof of financial responsibility, this policy shall comply with the law to the extent required.” South Dakota law of financial responsibility requires insurance “against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use of the vehicle or vehicles....” SDCL 32-35-70. Thus, a fair interpretation of the term “auto accident” would be an accident arising out of the “ownership, maintenance and use” of the automobile.

[¶ 13.] In Lyndoe v. American Standard Ins. Co., we analyzed insurance coverage of an accidental shooting in an automobile. 90 S.D. 644, 245 N.W.2d 273 (1976). In that case, Loren Lyndoe was riding through downtown Custer in a truck driven by his brother, James. Lyndoes pulled their vehicle over to the side of the road to talk to an acquaintance in another vehicle. Id. at 645, 245 N.W.2d at 273-74. While the vehicles were parked side by side, the acquaintance attempted to hand a .38 caliber pistol through his driver’s side window to Loren. Loren reached for the gun through his window. Before Loren touched the gun, it discharged and struck Loren in the mouth.

[¶ 14.] The policy language in Lyndoe provided as follows:

The company shall pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:
Coverage A — bodily injury caused by accident and arising out of the ownership, maintenance or use of the automobile.
‘(U)se’ of the automobile includes loading and unloading.

Id. at 647, 245 N.W.2d at 275.

[¶ 15.] Although much of the analysis in Lyndoe centered on whether passing the gun into the window constituted “loading or unloading” the vehicle, the basic question was whether the accident arose out of the “use” of the vehicle. Id. We said, “[s]ome causal connection between the ‘use’ of the vehicle ... and the accident must exist.” Id. (citations omitted). We also adopted a broad view of the ‘use’ clause in automobile coverage policies. Id. at 650, 245 N.W.2d at 276. We noted as follows:

Some of the cases [from other jurisdictions] involved efforts by a plaintiff to include his injuries within an automobile policy providing coverage under a ‘use’ clause, while others involved an effort by an insurer to exclude injuries from a homeowner’s policy because of a clause excluding automobile ‘use.’ In the latter policy the ‘use’ clause is given a narrow interpretation, while in the former, courts have adopted a broader interpretation. Therefore the broader view of the ‘use’ clause must be adopted in this case.

Id. at 649-50, 245 N.W.2d at 276 (emphasis added).

[¶ 16.] Even under the broader view, we determined that the vehicle in Lyndoe was the mere situs of the accident and the injury did not arise from the ‘use’ of the vehicle. Id. We analyzed it as follows:

Here the parties were within the City of Custer and not on a hunting expedition. They were merely discussing past and possible future hunting. The pistol was not to be delivered for the purpose of hunting nor for any use other than an examination by plaintiff followed by a return to Stender. It has been held that under a “loading and unloading” clause, the efficient and predominating cause of the accident must arise from the “use” of the vehicle, (citations omitted). Sten-der’s actions were a continuation of the conversation between the parties and could well have taken place elsewhere except for the temporary storage of the pistol in the vehicle. His independent act of reaching out the window of the vehicle was the event which discharged the pistol. Only his hand and arm extended outside the vehicle. Plaintiff admitted that he could have reached the pistol from his vehicle which was approximately two feet away. The vehicle was merely the [sjitus from which Sten-der reached in attempting to deliver the pistol to plaintiff. We find this case more analogous to those cases where a gun was passed or moved within a vehicle than to those cases where a person stepped from his vehicle and attempted to remove a gun. We conclude that the policy’s provisions cannot be interpreted so broadly as to allow coverage here.

Id.

[¶ 17.] Milbank argues that Lyndoe supports its analysis and the absence of coverage because Lyndoe distinguishes between cases where firearms discharge while loading and unloading them from vehicles and cases where firearms discharge while being handled inside the automobile. Generally, cases from other jurisdictions that concern coverage of hunting accidents fall into categories. The Supreme Court of New Mexico lists the categories as follows:

1) accidents in which the actual movement of the vehicle caused the firing of the gun, as in transport; 2) accidents in which the discharged gun was being removed from or placed in a gun rack in the vehicle; 3) accidents in which the gun was being loaded into or unloaded from the vehicle; 4) accidents arising from use of the vehicle as a gun rest; and 5) accidents in which the vehicle is described as a “mere situs” for the accident, such as when children play with guns in a standing vehicle.

Sanchez v. Herrera, 109 N.M. 155, 783 P.2d 465, 467 (1989) (citation omitted). See also Cameron Mut Ins. Co. v. Ward, 599 S.W.2d 13, 15-16 (Mo.Ct.App.1980) (the court analyzed and categorized cases from several jurisdictions).

[¶ 18.] Milbank urges us to adopt the nexus test set forth by the South Carolina Supreme Court in Peagler v. USAA Ins. Co., 368 S.C. 153, 628 S.E.2d 475 (2006). The Peagler court used a three-part test previously adopted in State Farm Fire & Cas. Co. v. Aytes, 332 S.C. 30, 503 S.E.2d 744 (1998) to determine whether an injury arose from the “ownership, maintenance, or use” of a vehicle. Peagler, 628 S.E.2d at 477. The court explained the test as follows: “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.” Id. at 478 (citing Aytes, 503 S.E.2d at 745). The Peagler court specifically rejected precedent of other courts that find coverage when accidents occur during the loading and unloading of a vehicle. 628 S.E.2d at 480. The court narrowly limited coverage to instances where the plaintiff could demonstrate that the vehicle “was an active accessory to the injury.” Id. at 481.

[¶ 19.] The three-part test followed in Peagler is unique to South Carolina law dating back to 1975. See Home Ins. Co. v. Towe, 314 S.C. 105, 441 S.E.2d 825, 827 (1994); see also Chapman v. Allstate Ins. Co., 263 S.C. 565, 211 S.E.2d 876 (1975). Most jurisdictions do not use such a restrictive test. We find this restrictive and narrow approach not in sync with Lyndoe, where we clearly adopted a broad view when applying a “use” clause in an automobile liability policy. Nevertheless, even with a broad interpretation, a plaintiff still has to show some causal connection between the injury and the vehicle.

[¶ 20.] Other courts have recognized a causal connection and found coverage when a gun discharges in a vehicle in conjunction with a hunting expedition. We referred to this causal connection by implication in Lyndoe. Our language in Lyn-doe implied that if the parties had been on a hunting expedition, our analysis would have been different. We said:

Here the parties were within the City of Custer and not on a hunting expedition. They were merely discussing past and possible future hunting. The pistol was not to be delivered for the purpose of hunting nor for any use other than an examination by plaintiff followed by a return to Stender.

Lyndoe, 90 S.D. at 650, 245 N.W.2d at 276 (emphasis added).

[¶ 21.] Mitch Peterson’s injury un-disputedly occurred during the “use” of the vehicle on a hunting trip. Whether the vehicle was more than “mere situs,” however, requires additional analysis. For purposes of coverage under the policy, there must be a causal connection between the accident that injured Mitch Peterson and the use of the pickup truck. Other jurisdictions have required “for coverage to apply, ‘[t]he injury must also have a causal connection to the inherent use of the vehicle.’ ” Kemp v. Feltz, 174 Wis.2d 406, 497 N.W.2d 751, 755 (Ct.App.1993) (holding that use of a truck as a “mobile hunting vehicle is consistent with the truck’s inherent use” for transportation of hunters); see, e.g., Sanchez, 783 P.2d at 467 (concluding “that emptying a gun within the cab of a pickup truck is foreseeably incident to use of that vehicle for hunting”); Allstate Ins. Co. v. Powers, 190 Ariz. 432, 949 P.2d 521, 524 (Ct.App.1998); Taliaferro v. Progressive Specialty Ins. Co., 821 So.2d 976, 978 (Ala.2001). We find this causal connection analysis more persuasive than the narrow three-part test used in Peagler, 368 S.C. 153, 628 S.E.2d 475.

[¶ 22.] The Kansas Supreme Court, in a strikingly similar hunting accident ease, applied a causal connection analysis to find coverage. Garrison v. State Farm Mut. Auto. Ins. Co., 258 Kan. 547, 907 P.2d 891 (1995). In Garrison, two men were hunting doves. They stopped the car for one of the hunters to get out. A gun stowed between the front seats of the vehicle discharged while one of the men was getting out of the car. No one knew why the gun discharged. The discharge struck the other passenger in the leg causing serious injury. Id. at 893. The terms of the liability policy were similar to Milbank’s policy. The policy covered damages “which an insured becomes legally liable to pay because of ... bodily injury to others ... caused by accident resulting from the ownership, maintenance or use of your car.” Id. The policy also “promise[d] to pay damages for bodily injury ... for which the law holds you responsible because of a car accident. ...” Id. at 894. The court explained the causal connection as follows:

[F]or insurance coverage to exist for accidental bodily injury, there is no requirement that the vehicle be either the proximate cause of the injury or physically contribute to the discharge of the gun. Coverage exists where the minimal causal connection between the use of the vehicle and injury is provided by the foreseeable and reasonable use of the vehicle for hunting.

Id. at 895.

[¶23.] The court found that the car was more than the mere situs of the injury, and endorsed the statement that “Kansas follows the majority rule that there must be some causal connection between the use of the insured vehicle and the injury.” Id. at 895 (citation omitted). The court held that “under the facts of this case, the injury sustained by Garrison, the driver, when a shotgun inside the car accidentally discharged as it was removed from the car, was a natural and reasonable incident arising out of the use of the car for hunting.” Id. at 896.

[¶ 24.] Other courts have used a similar inquiry. See Thompson v. State Farm Mut. Auto. Ins. Co., 161 Wis.2d 450, 468 N.W.2d 432, 435 (1991). The Wisconsin Supreme Court found automobile liability insurance coverage for a hunting accident because using a truck “for a hunting trip is reasonably consistent with the inherent use of the truck.” Id. In Allstate Ins. Co. v. Truck Ins. Exchange, the Wisconsin Supreme Court considered whether an accidental shooting on a hunting trip in a van was covered by the “use” provision in the insured’s automobile liability policy. 63 Wis.2d 148, 216 N.W.2d 205 (1974). In that case, the passenger accidentally shot the driver while unloading the rifle from the vehicle for the purposes of shooting an elk. The Wisconsin Supreme Court held that the use of a van for carrying hunters and guns when the van was outfitted for hunting “was reasonable and could be expected.” Id. at 210. The court found coverage “[i]f it can reasonably be expected that this van would be used to go on such a hunting outing, the necessary incidentals for such a hunting trip will be transported in the van, i.e., rifles, ammunition, equipment and supplies.” Id. The court used the following test to determine whether the “use” of the vehicle was the cause of the bodily injuries:

In determining whether the negligent act that caused bodily injury arose out of the ‘use’ of a motor vehicle within the coverage of a motor vehicle liability policy, the court must consider whether it was a natural and reasonable incident or consequence of the use of the vehicle for the purposes shown by the declarations, though not foreseen or expected. Thus, it has been held that one who entered an automobile in order to move it a short distance so as to enable him to park his own automobile was ‘using’ such when, because of defective brakes, the car rolled into a third car and caused injuries thereto. However, it has been held that an injury need not be the direct and proximate result, in a strict legal sense, of the use of an automobile to come within coverage of a policy indemnifying against liability for damages caused by accident and arising out of the ownership, maintenance or use of the automobile. This principle has been applied in cases where the injuries for which recovery was sought did not result from the movement of the vehicle.

Id. at 211 (citation omitted). The court concluded that this accidental shooting fell within the “use” provision of the automobile liability policy. Id. The gun’s accidental discharge was a natural and reasonable consequence of transporting guns on a hunting trip. Id. The New Mexico Supreme Court posed the inquiry as follows: “the proper inquiry in hunting accidents involving automobiles is whether the use made of the vehicle at the time of the accident logically flows from and is consistent with the foreseeable uses of that vehicle.” Sanchez, 788 P.2d at 467.

[¶ 25.] In the circuit court’s memorandum decision it stated: “Having reviewed [the pertinent cases] it is my conclusion that there is coverage for this type of accident under the Milbank policy because it clearly happened on a hunting expedition.” Furthermore, the circuit court concluded: “that the vehicle was not the mere situs of the accident, but that the loading of the rifle into the vehicle, its location in the vehicle and its movement were part of the use of the vehicle in the hunting expedition.” We agree with the circuit court’s logical conclusion that the vehicle was being used in a hunting expedition. The parties stipulated facts provided that at the time of the shooting “[t]he four occupants were all seated in the pickup. They were waiting for Trent Peterson to enter the pickup so they could leave to go hunting.” (Emphasis added). The stipulated facts also indicated that the afternoon hunt was a continuation of the morning hunting expedition. Temporarily stopping the vehicle for a brief snack break did not eliminate the purpose for which the gun was loaded and present in the vehicle. At the time of the accident, the hunters were preparing to continue the hunting expedition: the hunters had entered the vehicle, the guns were still in the vehicle, the vehicle was running and the party intended to continue the morning hunt as soon as the final passenger got into the pickup.

[¶ 26.] Clearly, an inherent use of a pickup truck is for transportation, which may involve driving through fields and over country roads. Here, the vehicle was being used to transport deer hunters to the field along with their equipment, clothing and guns. Transporting hunters and guns is a foreseeable and inherent use of a pickup truck in this State. Thus, it logically follows that when a pickup is being used in a hunting expedition where guns are being transported, the accidental discharge of the firearm can be said to be causally connected to the vehicle’s use. The vehicle need not be the cause of the discharge only that its use is causally connected.

[¶ 27.] The circuit court found that the Milbank policy covered the hunting accident because the accident occurred in connection with the use of a vehicle in conjunction with a hunting expedition, and because the vehicle was more than the mere situs of the accident. Based on the undisputed facts and the language of the policy, we affirm.

[¶ 28.] GILBERTSON, Chief Justice, and SABERS, Justice, concur.

[¶ 29.] KONENKAMP and ZINTER, Justices, dissent.

ZINTER, Justice

(dissenting).

[¶ 30.] Was this shooting an “auto accident”? I agree that the “use” of a pickup for hunting is foreseeable, and that the transportation of firearms may be incident to use of a vehicle if the vehicle is actually being used on a hunting expedition. Under the undisputed and stipulated facts, however, this case involved the accidental discharge of a firearm that was merely being repositioned in a pickup that was still parked in the insured’s driveway before the pickup even left for the hunting expedition. Therefore, under all analogous cases, the shooting was not an “auto accident.”

[¶ 31.] The facts (even those established at trial) are undisputed, but some have not been mentioned by the Court. The day before this occurrence, the Peter-sons went to a “bale blind” they had established for deer hunting on land Brad Peterson owned in a neighboring county. This method of hunting did not involve the use of the vehicle other than a means of transportation to get to the blind. Once they arrived at the location on Friday, various members of the Peterson family hunted by standing in the blind waiting for deer to pass. On Saturday, the morning of this occurrence, some of the Petersons hunted again at the blind. They quit hunting that morning about 10:30 a.m. and returned to Brad Peterson’s home, where they ate, cleaned up, change clothes, and possibly took a nap. Around 2:00 or 3:00 p.m. that afternoon they decided to hunt again.

[¶ 32.] At the time of the occurrence that afternoon, the rifle had been in the pickup for more than a day. Four of the Petersons were sitting in the parked pickup in the driveway of Brad’s home. They were waiting for Trent Peterson so they could go to Mitch Peterson’s home in order to get some dry clothes (Mitch was sitting in the pickup without shoes or socks at the time the gun discharged). After going to Mitch’s home, they intended to return to the bail blind to hunt. Before leaving, however, the gun accidentally discharged. At the time of the discharge, they were not loading or unloading the vehicle, the pickup was not moving, and the rifle was not jostled or moved as any occupant entered the vehicle. As they sat in the pickup waiting for Trent, Jeb Peterson noticed that the barrel of the rifle was pointed “in an unsafe position.” As he attempted to reposition the gun, it discharged. Jeb testified that the only reason he attempted to reposition the gun was because of its position: it was pointing towards Mitch’s legs. Under these circumstances, where the vehicle was not actually on the hunting expedition and was the mere situs of the occurrence, virtually all cases hold that the causal connection between the vehicle’s “use” and the injury-producing event is insufficient for this occurrence to be considered an “auto accident.”

[¶ 33.] Today’s Court engages in causation analysis under the “use” clause, but “stretchjes] far to find the requisite causal connection.” Brenner v. Aetna Ins. Co., 8 Ariz.App. 272, 276, 445 P.2d 474, 478 (1968). As Brenner noted:

From the standpoint of causation, this injury could have occurred in the woods, in a hunting lodge, or in a house. That the situs of the accident was in fact within a motor vehicle and the fact that both the tort-feasor and the injured party were ‘using’ the car at the time does not make the injury one ‘arising out of the ... use’ of the vehicle. Nor did the injury result from any incident of ‘ownership’ of the vehicle.

Id. Simply stated, a reasonable and ordinary person would not consider this occurrence to have been caused by the use of an automobile, and certainly would not consider this an “auto accident.”

[¶ 34.] Although the facts in the cases are varied driving different results, the rule of law governing the accidental discharge of firearms in motor vehicles is remarkably consistent. Virtually all courts apply a causal connection requirement in interpreting automobile insurance “use” clauses: a requirement that the shooting arise out of the ownership, maintenance or use of the automobile. In defining that causal connection requirement, most courts recognize that the use of a vehicle for hunting is foreseeable, and that the transportation of firearms may be incident to use of a vehicle if the vehicle is being used on a hunting expedition. Therefore, the cases require that at the time of the injury there must be a connection to the - “inherent use of the vehicle” and that the act must be “incident to the use of the vehicle.” See supra ¶ 21. A sufficient causal connection exists only when there is “foreseeable and reasonable use of the vehicle for hunting.” See supra ¶ 22 (citing Garrison v. State Farm Mut. Auto. Ins. Co., 258 Kan. 547, 907 P.2d 891, 895 (1995) (emphasis added)).

[¶ 35.] In this case, that causal connection was not established. The undisputed facts, as previously mentioned, reflect that at the time of the occurrence the vehicle was still parked in the driveway of Brad’s home. Moreover, the stipulation of the parties and the record reflect that Peterson family members had been engaged in at least two separate hunts, and were only intending to engage in a third. The parties’ stipulation states:

Various members of the Peterson family had been hunting the previous day on November 23, 2001. Some of those same members of the Peterson family also hunted in the morning of November 24, 2001, prior to the shooting incident involving Mitchell Peterson.

Stipulation of Facts ¶ 21 (emphasis added). The record explains that during the first hunt on Friday, November 23, 2001, Brad took his sons Shane and Jeb. Later, hunting in the afternoon, they met Leland Menske. Leland drove separately, and “he was in the bales stand with us.” Brad, Shane, and Jeb then drove home that night together.

[¶ 36.] Early Saturday morning, Brad left with Shane to pick up Mitch at a separate residence. On this second hunt, Brad, Shane, and Mitch hunted together. Jeb went hunting with Leland in Leland’s vehicle, and the parties later joined together. They quit hunting around 10 or 10:30 in the morning and returned to Brad’s home. Thus, notwithstanding the Court’s contrary appellate findings, these parties stipulated that at the time the rifle discharged, the morning hunt had concluded, the Petersons had retired to their home, the pickup was parked in the driveway of their home and was not moving. Although the Petersons intended to hunt at the bale blind again that afternoon, they had not left to begin hunting. Under these facts, every similar case has concluded that the accident was not causally connected to the use of the vehicle. The courts have uniformly held that such vehicles were the mere situs where an accidental discharge of a firearm occurred.

[¶ 37.] The Missouri Court of Appeals has catalogued the cases involving the discharge of firearms in motor vehicles. See Cameron Mut. Ins. Co. v. Ward, 599 S.W.2d 13 (Mo.Ct.App.1980). The facts of today’s case fall within the first category of cases involving “the accidental discharge of guns inside moving or motionless vehicles while an occupant of the vehicle is handling or toying with the gun.” Cameron, 599 S.W.2d at 15. As Cameron observed, “[w]ithout exception, these cases hold that no coverage exists under the insuring agreements of the respective automobile liability policies involved because there was no causal connection between the discharge of the guns and the use of the vehicles-” Id. Rather, “at best, the vehicles were merely the ‘situs’ or ‘locus’ of any resultant injuries as discharge of the guns was unconnected with the inherent use of the vehicles.” Id.

[¶ 38.] Those cases, involving both hunting and non-hunting handling of firearms inside a vehicle, find no causal relationship under the facts we consider today. See Western Cas. & Sur. Co. v. Branon, 463 F.Supp. 1208, 1211 (E.D.Ill.1979) (holding accidental discharge of firearm in moving motor vehicle did not implicate a sufficient causal connection to fall within the automobile use clause: “[A] fortuitous accidental shooting does not, merely because it takes place in a car, arise out of the use of the automobile.”); Am. Liberty Ins. Co. v. Soules, 288 Ala. 163, 168, 258 So.2d 872, 876 (1972) (holding that injuries sustained when pistol discharged as occupant pushed pistol down the back of the seat, at time automobile was parked, was not causally connected with use of the automobile: “[Ojccupant of an automobile injured by discharge of a firearm by another occupant [does not] constitute an injury arising out of the use of the insured automobile, for the reason that there is no causal relation between the use of the automobile and the injury.”); Hartford Fire Ins. Co. v. State Farm Mut. Auto., 264 Ark. 743, 574 S.W.2d 265 (1978) (holding accidental discharge of firearm inside vehicle does not fall within the use clause); Azar v. Employers Cas. Co., 178 Colo. 58, 61, 495 P.2d 554, 555 (1972) (holding that even while engaged in a hunting enterprise, accidental discharge of firearm inside stopped vehicle does not fall within the causal connection requirement of the use clause: “[I]t cannot reasonably be said that the discharge of the weapon in this case originated from, grew out of or flowed from the use of the vehicle. Rather, the injury originated from, grew out of or flowed from the use of the firearm.”); Mason v. Celina Mut. Ins. Co., 161 Colo. 442, 423 P.2d 24 (1967) (holding that even when returning from pistol target practice, an accidental discharge in vehicle that was parked until one of the occupants returned did not implicate the causal connection required to fall within the use clause) (citing 7 Appleman, InsuRanCe Law and Practioe § 4317, at 144, 146, for the proposition that the accident must have arisen “out of the inherent nature of the automobile ... in order to bring one within the terms of such a policy.”); U.S. Fid. & Guar. Co. v. W. Fire Ins. Co., 450 S.W.2d 491 (Ky.1970) (holding accidental discharge of gun when occupant began to load the gun was not sufficiently connected to the automobile to be considered to have been a use within the contemplation of the parties to the automobile insurance contract); Nat’l Family Ins. Co. v. Boyer, 269 N.W.2d 10, 15 (Minn.1978) (holding no relationship between the use of gun and the use of the parked automobile; the automobile was the mere situs of the injury); Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Bruecks, 179 Neb. 642, 139 N.W.2d 821 (1966) (holding that even broadly construing the use clause, a gun discharge while a hunter was unloading it inside of his vehicle was not covered because the vehicle was merely the situs of the accident; the accident did not arise out of the use of the vehicle); Raines v. St. Paul Fire & Marine Ins. Co., 9 N.C.App. 27, 175 S.E.2d 299 (1970) (holding no coverage under the use clause for accidental discharge of firearm in parked vehicle because there was no causal connection between the discharge of the pistol and the “ownership, maintenance or use” of the parked automobile); and State Farm Mut. Auto. Ins. Co. v. Centennial Ins. Co., 14 Wash.App. 541, 543 P.2d 645 (1975) (holding no coverage under use clause in which occupant unloaded a rifle in the vehicle causing the accidental discharge while returning from a hunting excursion).

[¶ 39.] The Court declines to discuss or distinguish these authorities. Instead, the Court labels and adopts the circuit court’s conclusions of law as “logical conclusion[s],” that this shooting “happened on a hunting expedition,” that the “movement [of the gun was] part of the use of the vehicle in the hunting expedition,” and therefore the pickup “was being used in a hunting expedition.” Supra ¶ 25 (emphasis added). These are appellate findings, and even if they were conclusions of law, they are entitled to no deference. Marschke v. Wratislaw, 2007 SD 125, ¶ 8, 743 N.W.2d 402, 405 (additional citations omitted). No deference is especially appropriate here because none of the historical facts established at trial are in dispute. Under those circumstances, our task is a mixed question of fact and law: i.e., whether the historical facts of this incident constitute an “auto accident,” a question we review de novo. See In re Dorsey & Whit ney Trust Co., LLC, 2001 SD 35, ¶ 6, 623 N.W.2d 468, 471.

[¶40.] More importantly, this Court’s appellate findings are untethered to the use of the vehicle at the time of the shooting, and are in conflict with the parties’ stipulation of facts and the record upon which this case was presented. For example, the Court indicates “the afternoon hunt was a continuation of the morning hunting expedition,” suggesting that the Petersons “[t]emporarily stopp[ed] the vehicle for a brief snack break[.]” Supra ¶ 25. Similarly, the Court finds coverage because this vehicle was actually “being used to transport deer hunters to the field[J.” Supra ¶ 26.

[¶ 41.] Contrary to this Court’s findings, the stipulation specifically reflects that rather than being on the hunting expedition at the time of the occurrence, the shooting happened at a time when: “various members of the Peterson family were preparing to return to their hunting activities,” Stipulation of Facts, No. 22, the pickup “was not moving, was not in gear, but the engine was running,” id. No.19, and the four occupants were all seated in the pickup in the driveway of their home “waiting for Trent so they could leave to go hunting.” Id. No.19 (emphasis added). Considering these stipulated and undisputed facts, the Court mistakenly premises its holding on findings that at the time of the shooting “the vehicle was being used to transport deer hunters to the field,” and the pickup “was being used in a hunting expedition where guns are being transported,[■]” See supra ¶26 (emphasis added).

[¶ 42.] Most importantly, even if the Court were correct that Petersons intended to engage in a “continuation” of the morning hunt, the Court fails to consider two intervening events. First, there is no dispute that Petersons ceased hunting to rest and eat lunch, and that they had not left their home to return to the bale blind when the gun discharged. Second, there is no dispute that at the time of the discharge, they were going to go to Mitch Peterson’s home to get dry clothing before they were going to return to the bale blind to hunt. These types of intervening events must be considered in the causation analysis in such cases. See Norgaard v. Nodak Mut. Ins. Co., 201 N.W.2d 871, 875 (N.D.1972) (concluding that even while on a hunting expedition, use of a vehicle as a “gun rest” to shoot a firearm did not provide a sufficient causal connection between the vehicle in the accident under the use clause). The North Dakota Supreme Court noted, “the causal relationship need not constitute a proximate cause, but on the other hand if an injury is directly caused by some independent or intervening cause it does not arise out of the use of an automobile, notwithstanding there may have been some remote connection between the use of an automobile and the injury complained of.” Id.

[¶ 43.] The Court also fails to apply our own precedent recognizing the difference between being “on a hunting expedition” and “future hunting.” Lyndoe v. Am. Standard Ins. Co. of Wisconsin, 90 S.D. 644, 650, 245 N.W.2d 273, 276 (1976). Thus, “the proper inquiry in hunting accidents involving automobiles [requires an examination of] the use made of the vehicle at the time of the accident!.]” Sanchez v. Herrera, 109 N.M. 155, 157, 783 P.2d 465, 467 (emphasis added). When that timing examination is made, the Court’s own authorities do not support a causally related use of the vehicle in this case.

[¶ 44.] For example, although the Court relies on Garrison, that ease involved the following disparate facts:

After several stops [the occupants of the vehicle] saw some birds and decided that Pfannenstiel would get out of the car and Garrison would then drive on to the far end of a line of trees and hunt there. Garrison slowed the car; as it approached or came to a stop and Pfan-nenstiel was getting out of the car, Pfan-nenstiel’s shotgun discharged, striking Garrison in the leg and causing a significant injury.

258 Kan. at 549, 907 P.2d at 893. The Kansas Supreme Court thereafter highlighted that different factual scenario in which a causally related use occurs because the vehicle is actually involved in the hunt:

The injury occurred while the car was being used to transport dove hunters during a hunting trip. Garrison was driving. The engine was running. Garrison stopped the car while Pfannenstiel tried to exit with his shotgun to hunt doves. The shotgun discharged while Pfannenstiel was removing it from the car. Garrison had intended to drive further after Pfannenstiel was out of the car. The car was “involved,” in that the injury occurred while Pfannenstiel was removing his shotgun from the car and Garrison was driving the car.

Id. at 554, 907 P.2d at 896. Thus, unlike today’s case, where the Petersons were still sitting in their driveway only intending to engage in hunting at a distant location, the parties in Garrison were actually “transporting] guns during a hunting trip.” Id. at 555, 907 P.2d at 896.

[¶ 45.] Similarly, the Court’s other primary authority, Allstate Ins. Co. v. Truck Ins. Exchange, 63 Wis.2d 148, 216 N.W.2d 205 (1974), concerns two individuals who were actually pursuing an elk in a vehicle specially adapted for hunting purposes. When the elk was located, the driver stopped the vehicle so the passenger could remove his loaded rifle from the vehicle to shoot the elk. In attempting to remove the rifle, it discharged, causing injury. In construing an exclusion under a general liability policy and a use clause providing coverage in an auto policy, the Wisconsin court found coverage under the auto policy because persons “actively engaged in loading and unloading the. automobile in the commonly accepted meaning of those words are considered to be using or operating the automobile and are covered by the loading and unloading provision of the policy.” Id. at 155, 216 N.W.2d at 209 (emphasis added). Peterson’s occurrence is not, however, a “loading and unloading” ease, nor does it involve participants “actively engaged” in the act of hunting.

[¶ 46.] Clearly, the Court’s decision is unsupported and contrary to any authority with remotely similar facts. In light of the stipulated fact that the various members of the Peterson family were only “preparing to return to their hunting activities,” and in light of the undisputed fact that they were still seated motionless in a parked vehicle in the driveway, how can the Court find coverage on contrary findings? Under the stipulated facts, the only connection between this shooting and the pickup was that the parties intended to use the pickup as transportation to go to the bale blind to hunt that afternoon. At the time of the occurrence, however, the Petersons had not started the afternoon hunting enterprise, and their intended use that afternoon cannot reasonably be construed as an “auto accident.”

[¶ 47.] Even giving the language of the policy insuring “auto accidents” the broad interpretation as required by Lyndoe, supra, the Court has stretched that language beyond common sense and reasonable understanding. We should not construe statutes (SDCL 32-35-70) and insurance contracts in such a manner. “We will not resort to a forced construction of the language in [an insurance] contract for the purpose of either limiting or extending coverage.” Gloe v. Union Ins. Co., 2005 SD 30, ¶ 29, 694 N.W.2d 252, 260. “Insurance contracts warrant reasonable interpretation, in the context of the risks insured, without stretching terminology.” Zochert v. Nat’l Farmers Union Prop. & Cas. Co., 1998 SD 34, ¶ 5, 576 N.W.2d 531, 532 (citing Opperman v. Heritage Mut. Ins. Co., 1997 SD 85, ¶ 4, 566 N.W.2d 487, 490) (citing State Farm Mut. Auto. Ins. Co. v. Vostad, 520 N.W.2d 273, 275 (S.D.1994))).

[¶ 48.] Today’s case is similar to an accidental stabbing that occurred in the backseat of a vehicle in Washington. As the Washington Court of Appeals observed, “the average person would not consider the stabbing incident in [the insured’s] parked van as an ‘automobile accident.’ Rather, we believe the average person would ... say only that [the injured party] was stabbed while sitting in his automobile.” Grelis, 43 Wash.App. at 478, 718 P.2d at 813. Similarly, considering the actual use of Brad’s parked pickup at the time of this occurrence, the average person would not conclude that this shooting was an “auto accident.” The average person would say that Mitch was shot while sitting in the backseat of a parked pickup. Because, under the stipulated and undisputed facts, this shooting did not occur incident to the vehicle’s actual use in hunting, I dissent.

[¶ 49.] KONENKAMP, Justice, joins this dissent.

      . Brad, Lenny and Danny Peterson were partners in the Peterson Farms Partnership. Brad Peterson and his immediate family and Lenny Peterson and his immediate family lived in separate households approximately 1.5 miles from each other.

      . The circuit court found that the North Star policy provided no coverage for the injuries because it contained language that excluded coverage for bodily injuries resulting from the ownership, operation, maintenance, use, and loading or unloading of a vehicle. Peterson Farms did not appeal the circuit court's ruling.

      . The policy defined "car accident” as "an unexpected and unintended event that causes injury or property damage and arises out of the ownership maintenance, or use of a car or other motor vehicle.” Garrison, 907 P.2d at 894. "The policy provisions did not expressly define 'use' to include loading or unloading of a vehicle.” Id. at 894.

      . The circuit court also found that the vehicle was the "efficient and predominating cause” of the accident. In Cain v. Fortis Ins. Co., we held this doctrine did not apply to health insurance policies. 2005 SD 39, 694 N.W.2d 709. We stated, "[t]he doctrine of efficient proximate cause has been utilized in cases involving property and casualty insurance policies.” Id. ¶ 25, 694 N.W.2d at 714. It is applied "where two separate or distinct perils could have occurred independently of the other and caused damage.” Id. In dicta in Lyn-doe we cited to this standard. 245 N.W.2d at 276. We decline to discuss whether the "efficient and predominating cause” doctrine applies in this context because it is not properly before the Court.

      . Before they returned home that morning, they also "drove a tree belt” that was located about one mile from the bale blind. No other type of hunting activity was described at trial.

      . I decline to join the Court's incorporation of use clause language into the "auto accident” provision of this policy through the policy's definition of an "insured.” See supra ¶ 12. As a Washington Court of Appeals noted:
      [The injured party] argues ... that the policy definition of "injured person" gives a broader meaning to the term "automobile accident” and, thus, brings him, by implication, within the personal injury protection of the policy. An "injured person” is defined in the policy as "an insured person who is injured by accident while occupying or being struck by an automobile.” This language, however, does not broaden the scope of coverage defined in the policy ... which provides:
      We will provide the benefits described below for injury to each insured person caused by an automobile accident.

        Farmers Ins. Co. of Washington v. Grelis, 43 Wash.Ct.App. 475, 478-79, 718 P.2d 812, 813 (1986). Similarly, the definition of an "insured” under the Milbank policy does not purport to broaden the scope of coverage for "auto accidents.”
      Nevertheless, I agree with the Court’s alternative reason for incorporation of the use clause in this case. Use clause language ("ownership, maintenance or use”) is incorporated in all South Dakota auto policies under SDCL 32-35-70 (requiring insurance "against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use of the vehicle[.]”) See also State Farm Mut. Auto. Ins. Co. v. Centennial Ins. Co., 14 Wash.Ct.App. 541, 542-43, 543 P.2d 645, 646 (1975) (concluding that statute requiring coverage for "all sums which the insured shall become legally obligated to pay as damages because of bodily injury sustained by any person 'arising out of the ownership, maintenance or use, ... ’ including the loading and unloading of any insured vehicle” ... effectively mandates that motor vehicle liability policies contain the quoted phrase).

      . The Minnesota Supreme Court adopted a consistent, but more comprehensive causal connection test:
      In general terms, it has been established that such relationship need not be a proximate cause in the strict legal sense. Rather, it is sufficient to establish that the injury or loss ‘was a natural and reasonable incident or consequence of the use of the (insured) vehicle.' It has been said that the causal connection must be ‘reasonably apparent,’ and that ‘the mere fact that the use of the vehicle preceded the harm which was later sustained is not sufficient to bring such harm within the coverage of the policy.’ It has also been held that the policy term ‘arising out of' means ‘originating from,' or 'having its origin in,’ 'growing out of,’ or ‘flowing from.'

        National Family Ins. Co. v. Boyer, 269 N.W.2d 10, 15 (Minn.1978) (citing Assoc. Ind. Dealers v. Mut. Serv. Ins., 304 Minn. 179, 181, 229 N.W.2d 516, 518 (1975)).


source: Caselaw Access Project

author: CADY, Justice.

license: Public Domain

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Brandon ADAMS, Respondent.
    No. 07-0777.
    Supreme Court of Iowa.
    March 28, 2008.

      Charles L. Harrington and Elizabeth E. Quinlan, Des Moines, for complainant.
    Brandon Adams, Waterloo, pro se.
   CADY, Justice.

The Iowa Supreme Court Attorney Disciplinary Board charged Brandon Adams with numerous violations of the Iowa Code of Professional Responsibility for Lawyers and the Iowa Rules of Professional Conduct, mainly predicated on his neglect and inattention to client matters in several cases. The Grievance Commission of the Supreme Court of Iowa found Adams violated the Code of Professional Responsibility and the Iowa Rules of Professional Conduct. It recommended Adams be suspended from the practice of law for a period not less than three months. On our review, we find Adams violated the codes of professional conduct, and we impose an indefinite suspension of not less than four months.

I. Background Facts and Proceedings.

Brandon Adams is an Iowa lawyer. He practices law as a sole practitioner in Waterloo. Adams was admitted to the practice of law in Iowa in 2000. He worked for one year after graduation from law school as a public defender in Kansas and was employed by two law firms in Waterloo from 2000 to 2003, before opening his own law office. He is married and supports four children. Adams is thirty-three years old. He has participated in the volunteer lawyer project by providing free legal services to the needy.

The board filed a five-count complaint against Adams on January 10, 2007. The complaint centered on claims of neglect and lack of diligence in representing clients, client misrepresentation, failure to make an accounting, and failure to timely respond to requests for information by the board. The neglect resulted in the dismissal of two appeals for lack of prosecution, and the lack of diligence resulted in the arrest and incarceration of a client for failure to appear at a court hearing in a criminal case.

Adams failed to respond to the complaint and failed to answer requests for admissions submitted by the board. As a result, the commission deemed the allegations of the complaint and the request for admissions to be admitted. It nevertheless permitted Adams to submit exhibits and evidence at the hearing.

At the hearing, Adams offered evidence to both excuse and mitigate his conduct. He testified he was unable to perform legal services at times due to debilitating migraine headaches. He also had other ongoing personal matters that would interfere with his work, including bouts with depression. Additionally, Adams lacked financial resources to purchase legal research tools to help perform legal services. At times, he employed inexperienced legal assistants who hampered communications with clients due to clerical errors. He was unable to locate billing records due to a change in his office computer system.

Adams has a history of prior discipline. He was privately reprimanded by the board in 2003 for inflating a claim for legal services. He received a public reprimand in 2004 for altering a copy of a decision by an administrative law judge before sending it to his client by deleting a sentence stating he failed to file a brief in the case. He was temporarily suspended on two occasions in 2005 for failing to respond to board complaints and for not complying with client security regulations. He was publicly reprimanded in January 2007 for neglect of a client matter by failing to file a posttrial motion in a criminal case.

The commission found the board established the violations as set forth in the five-count complaint. It found Adams’ conduct violated DR 6-101(A)(3) (neglect), DR 7 — 101(B)(3) (prejudice to client), DR 1-102(A)(5) (prejudice to administration of justice), DR 1-102(A)(6) (fitness to practice), DR 9-102(B)(3) (render accounting), DR 1-102(A)(4) (misrepresentation), DR 9-102(B)(4) (deliver client funds), Iowa Rule of Professional Conduct 32:1.3 (act with diligence and promptness in representing a client), and Iowa Rule of Professional Conduct 32:8.1(b) (respond to demand for information from disciplinary authority). It recommended Adams be suspended from the practice of law for a period not less than three months. It also recommended that Adams be ordered to return retainers and fees to three of his former clients involved in the complaints.

Adams appealed the report of the commission. However, the appeal was subsequently dismissed based on his failure to prosecute, and the case proceeded as a review of a commission report under Iowa Court Rule 35.10. See Iowa Ct. R. 35.11(8).

II. Scope of Review.

We review attorney disciplinary proceedings de novo. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Bernard, 653 N.W.2d 373, 375 (Iowa 2002). We are not bound by the commission’s findings, but give them weight. Id.

III. Pretrial Sanction.

An appeal filed by an attorney from a grievance commission report allows the attorney to identify and argue specific claims of error in the commission proceedings. However, when an appeal is dismissed for lack of prosecution, the case proceeds to de novo review on the record before the commission without argument, “as if no appeal had been taken.” Iowa Ct. R. 35.11(3).

Our de novo review of the record before the commission reveals no error in the procedure used at the hearing. The allegations of the complaint and the commission’s request for information were deemed admitted based on Adams’ failure to respond. Iowa Ct. R. 36.7 (stating, if respondent fails to file a timely answer, “the allegations of the complaint shall be considered admitted”); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Moonen, 706 N.W.2d 391, 396 (Iowa 2005) (citing Iowa R. Civ. P. 1.510(2)). While this action relieved the board of its burden to submit evidence and present testimony to establish the allegations in the complaint, Adams was not deprived of an opportunity to present evidence to contest the complaint. Moreover, Adams did not object to the procedure adopted by the commission and testified at length at the hearing about each complaint. He also did not object to the exhibits offered as evidence at the hearing by the board.

IV. Violations.

The violations found by the commission were established by the evidence. Generally, Adams neglected client matters by failing to advance their interests after agreeing to represent them. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Moorman, 683 N.W.2d 549, 551-52 (Iowa 2004). In particular, he neglected two client matters by failing to comply with appellate deadlines. See id. at 552. Adams also failed to diligently represent the interests of a third client by failing to appear at an arraignment on behalf of his client or by failing to file a written plea prior to the arraignment. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Kallsen, 670 N.W.2d 161, 167 (Iowa 2003) (finding neglect based on attorney’s failure to appear). His conduct violated Iowa Rule of Professional Conduct 32:1.3. It also resulted in the arrest and incarceration of the client. The record further reveals Adams misrepresented the status of a case to a client after the case had been dismissed for his failure to comply with deadlines. The record demonstrates an intent to deceive the client. See Moorman, 683 N.W.2d at 553. Adams also failed to render an accounting to a client. See DR 9-102(B)(3). Finally, he failed to respond to board demands for information. See Iowa R. Prof'l Conduct 32:8.1(b).

V. Discipline.

To determine the appropriate level of discipline for violating a rule of professional conduct, we focus primarily on the nature of the violation, the need for deterrence, the need to protect the public, the need to maintain the reputation of the profession as a whole, and the attorney’s fitness to continue-to practice law. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Walters, 646 N.W.2d 111, 113-14 (Iowa 2002). We consider all aggravating and mitigating circumstances. Id. Multiple instances of past disciplinary action are an aggravating circumstance. Id. Harm to a client is also an aggravating circumstance. Id. In the end, the discipline imposed is based on the facts of each case. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Frerichs, 671 N.W.2d 470, 478 (Iowa 2003).

Our review of prior cases reveals that the discipline imposed for neglect typically “ranges from a public reprimand to a six-month suspension.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Hohenadel, 634 N.W.2d 652, 655-56 (Iowa 2001). Misrepresentation to a client can be a frequent companion of client neglect and can support a higher range of discipline. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Adams, 623 N.W.2d 815, 819 (Iowa 2001). The failure to render an accounting is an additional form of neglect by an attorney and compounds the discipline.

Adams suggests his migraine headaches and depression should be considered in mitigation of discipline. We recognize these conditions are mitigating factors in the imposition of discipline. See Frerichs, 671 N.W.2d at 477.

Considering all the relevant facts and circumstances, we conclude Adams should be indefinitely suspended from the practice of law with no possibility of reinstatement for four months. Adams has not only established himself in his relatively short professional career as a lawyer who lacks diligence and professionalism in dealing with client matters, but he has also shown himself to be a lawyer who is willing to misrepresent the truth in an effort to hide his neglect and inattention. His actions and conduct have inflicted harm on his clients and the profession as a whole.

We are sympathetic to the struggles Adams has endured with migraine headaches and depression. Yet, his depression admittedly surfaced after most of his violations occurred, and Adams failed to turn to others for help in his practice to protect the interests of his clients when he was unable to perform needed services due to his migraine headaches. Considering his past conduct and record as a whole, his medical condition has not been the central cause of his problems.

VI. Conclusion.

We suspend Adams’ license to practice law with no possibility of reinstatement for a period not less than four months from the date of the filing of this opinion. The suspension imposed applies to all facets of the practice of law, as provided by Iowa Court Rule 35.12(3). On application for reinstatement, Adams shall have the burden to prove he has not practiced during the period of suspension and that he meets all the requirements of Iowa Court Rule 35.13. As a condition of reinstatement, Adams shall make restitution of fees and retainers, as recommended in the commission report, and shall submit a written medical certification that he is fit to practice law. The costs of this action shall be taxed to Adams pursuant to rule 35.25(1).

LICENSE SUSPENDED.

      . The violations that occurred after July 1, 2005, are subject to the Iowa Rules of Professional Conduct, chapter 32.


author: STREIT, Justice.

text:
    Barry C. SIMPSON and Stacy Simpson, Husband and Wife, David Gerber and Kathy Gerber, Husband and Wife, Jeremy Walker and Kayla Walker, Husband and Wife, Jeff Weber and Tracy Weber, Husband and Wife, Leroy F. Weber and Audrey H. Weber, Husband and Wife, Ken Witham and Cindy L. Witham, Husband and Wife, Terry W. Warmbier and Carol Warm-bier, Husband and Wife, Howard P. Swanson and H. Aileen Swanson, Husband and Wife, Eugene K. Lemkee and Sharon Lemkee, Husband and Wife, Duane Heinen and Sharon K. Heinen, Husband and Wife, Earl Loss and Juanita Loss, Husband and Wife, Thomas M. Altman and Marlene Altman, Husband and Wife, J.W. Gardner and Karen Gardner, Husband and Wife, Ronald Frankl and Pamela Frankl, Husband and Wife, Bob Casey and Trish Casey, Husband and Wife, Richard N. Kohlhaas and Richard G. Thompson, Appellants, v. Luke KOLLASCH, Charlie Kollasch, Kollasch Land and Livestock, Inc., General Development, L.L.C., a/k/a General Development Corp., Donald R. Tietz, John Mertz, Nicholas Berte, Dean Berte, Kevin Berte and Craig Berte, Appellees.
    No. 05-1410.
    Supreme Court of Iowa.
    March 28, 2008.

      David J. Stein, Jr. and David J. Stein, Sr. of Stein Law Office L.L.P., Milford, for appellants.
    Sean P. Moore and Michael R. Blaser of Brown, Winnick, Graves, Gross, Basker-ville & Schoenebaum, P.L.C., Des Moines, for appellees.
   STREIT, Justice.

No one wants to live near a hog confinement operation. Neighbors of two proposed hog confinement facilities filed an anticipatory nuisance claim against the developers of the confinement facilities and the owners of the land where manure from the operations was to be spread. While the neighbors raised legitimate concerns, our role in this case is not akin to a zoning board. An injunction based on an anticipatory nuisance is an extraordinary remedy and requires proof a nuisance will necessarily result from the developers’ proposal. Because the neighbors have not met this high burden, we affirm the district court’s denial of an injunction.

I. Facts and Prior Proceedings.

In early 2003, General Development L.L.C. filed two separate applications with the Iowa Department of Natural Resources (DNR) for permits to construct confined animal feeding operations (CA-FOs) in Sherman Township, Kossuth County. General Development referred to the operations, which were to be located approximately two miles apart, as “Sow 1” and “Sow 2.” The facilities were designed to store all manure in concrete pits under the buildings. According to a manure management plan for each facility, the manure would be spread once a year on nearby farmland.

In May 2003, General Development published notices in the Algona Upper Des Moines newspaper stating its intent to build the two CAFOs. A public meeting was held. The Kossuth County Board of Supervisors submitted a list of concerns to the DNR. In August 2003, the DNR issued permits for the construction of Sow 1 and Sow 2. In its “Notice of Issuance of Construction Permits” to the Board, the DNR addressed the concerns raised by the Board and rejected them.

Prior to the issuance of the permits, the plaintiffs, who are all neighbors of the proposed facilities (hereafter “neighbors”), filed this case alleging nuisance and anticipatory nuisance. General Development filed counterclaims, which were eventually dismissed without prejudice. The district court granted partial summary judgment in favor of General Development and dismissed the neighbors’ nuisance claim.

At the bench trial for the anticipatory nuisance claim, General Development presented evidence the permit for Sow 2 had expired. Luke Kollasch testified he had no current plans to build Sow 2 although he acknowledged he may later reapply for a permit for Sow 2. Luke testified his plans for Sow 1 were unchanged.. Sow 1 would house 10,900 pigs (5400 sows, 2500 gilts, and 3000 suckling pigs). General Development would compost approximately 2500 dead pigs a year and store and spread approximately five million gallons of manure. Several neighbors testified regarding their concerns about the proposed CAFOs. Both parties provided expert and lay testimony with respect to potential odors, water contamination, health effects, and reduction in property values. Additionally, several individuals testified concerning their negative experiences living near General Development’s existing CA-FOs. The district court found the neighbors failed to prove an anticipatory nuisance and dismissed their petition. On appeal, the neighbors allege the district court erred (1) by only considering the Sow 1 facility; (2) by considering DNR standards and regulations; and (3) by concluding Sow 1 would not necessarily constitute a nuisance. General Development claims the district court properly found the neighbors failed to meet their burden of proof. It notes the neighbors are free to bring a nuisance claim if their concerns are realized once Sow 1 is in operation.

II. Scope of Review.

Cases tried in equity are reviewed de novo. Iowa R.App. P. 6.4. “[W]e give weight to the findings of fact made by the trial court in this case, especially with respect to the credibility of witnesses, but are not bound by those findings.” Owens v. Brownlie, 610 N.W.2d 860, 865 (Iowa 2000).

III. Merits.

A. Whether the District Court Erred by Only Considering the Sow 1 Facility. The district court’s ruling did not make any findings of fact or conclusions of law with respect to Sow 2, other than the permit had expired. The neighbors filed a motion requesting the court to enlarge and amend its ruling to address Sow 2. The neighbors noted “nothing is preventing the Defendants from reapplying for and being granted the permit for Sow 2.... ” In its ruling on the motion to enlarge, the district court stated because “Sow Two is not presently threatening the Plaintiffs,” “there is no anticipated nuisance to be enjoined with respect to Sow Two.” On appeal, the neighbors contend the district court erred by not considering Sow 2. We disagree.

It would be entirely speculative to rule on Sow 2. At this juncture, General Development has no plans to construct Sow 2. When or if it decides to develop that CAFO, General Development must obtain a new construction permit from the DNR. We have no way of predicting future circumstances if that were to occur. For example, General Development may submit a revised plan, the law with respect to CAFOs may change, or some of the neighbors may move in the meantime. Since General Development applied for its original permits, the Kossuth County Board of Supervisors adopted the “master matrix” which requires anyone seeking a permit today to comply with the master matrix statute. See Iowa Code § 459.305. This statute also allows the Board to file a formal appeal with the DNR regarding the issuance of any new permits. See id. § 459.304. Thus, the issue with respect to Sow 2 is moot and the district court appropriately limited its ruling to Sow 1. See Rhiner v. State, 703 N.W.2d 174, 176 (Iowa 2005) (“[Cjourts do not decide cases when the underlying controversy is moot.”).

B. Whether the District Court Erred by Considering DNR Standards and Regulations. The district court allowed General Development to admit evidence of its compliance with DNR standards and regulations. The neighbors argue the district court should not have considered evidence of compliánce because “‘a lawful business, properly conducted, may still constitute a nuisance if the business interferes with another’s use of his own property.’ ” Weinhold v. Wolff, 555 N.W.2d 454, 461 (Iowa 1996) (quoting Valasek v. Baer, 401 N.W.2d 33, 35 (Iowa 1987)). While compliance with regulations is not a defense to a nuisance claim, we agree with the district court this evidence was relevant. See Iowa R. Evid. 5.401 (defining relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence”). But see Andrews v. Western Asphalt Paving Corp., 193 Iowa 1047, 1052, 188 N.W. 900, 902 (1922) (holding it was not error to refuse to permit defendants to show the plant, which caused the nuisance, was operated and constructed in a usual manner). As the district court stated, “compliance with standards designed to avoid nuisances might in fact be some evidence that a nuisance would not necessarily result from the operation.”

C. Whether the District Court Erred by Holding the Neighbors Failed to Prove an Anticipatory Nuisance. The neighbors claim the proposed CAFO, if brought into operation, will constitute a nuisance and should be enjoined in advance. A nuisance is “[wjhatever is injurious to health, indecent, or unreasonably offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere unreasonably with the comfortable enjoyment of life or property.” Iowa Code § 657.1; see id. § 657.2(1) (explaining nuisances include “[t]he erecting, continuing, or using any building or other place for the exercise of any trade, ... which, by occasioning noxious exhalations, unreasonably offensive smells, or other annoyances, becomes injurious and dangerous to the health, comfort, or property of individuals or the public”). “An ‘anticipated’ nuisance would be whatever threatens to fulfill the statutory definition, if it were to come to fruition.” Rutter v. Carroll’s Foods of the Midwest, Inc., 50 F.Supp.2d 876, 884 (N.D.Iowa 1999). We have previously said,

An anticipated nuisance will not be enjoined unless it clearly appears a nuisance will necessarily result from the act ... it is sought to enjoin. Relief will usually be denied until a nuisance has been committed where the thing sought to be enjoined may or may not become such, depending on its use or other circumstances.

Livingston v. Davis, 243 Iowa 21, 31, 50 N.W.2d 592, 599 (1951) (citing Amdor v. Cooney, 241 Iowa 777, 784, 43 N.W.2d 136, 141 (1950)). This standard is akin to our “clear and convincing evidence” standard. See King v. King, 291 N.W.2d 22, 24 (Iowa 1980) (“Clear and convincing evidence is a standard that lies somewhere between a preponderance of evidence and evidence beyond a reasonable doubt.”).

In its ruling, the district court stated “[t]he evidence in the record convinces the Court that with careful and diligent operation, this facility need not necessarily constitute a nuisance even to the closest neighbors, the Caseys, at one mile away.” We agree. While the neighbors’ concerns are understandable, they have failed to meet their burden of proof for an anticipated nuisance.

The neighbors are all long-time residents of the area where Sow 1 is proposed to be located. Robert and Patricia Casey live one mile northwest of Sow 1. Ken and Cynthia Witham live about 1.1 mile north/northwest of Sow 1. Jeff Weber lives a little over two miles northwest of Sow 1. Except for the Caseys and Withams, none of the neighbors live within two miles of the proposed location for Sow 1. All of the neighbors who testified either in person or by deposition expressed concerns about health issues, water quality issues, odor issues, and a perception property values would decline. We address each of these issues in turn.

1. Health issues. Some of the neighbors testified they had health concerns if General Development was allowed to go forward with this facility. None of them claimed present adverse effects from other CAFOs presently in the vicinity. Some of the neighbors have existing health conditions they fear will worsen with the presence of Sow 1. Jeff Weber has had a kidney transplant and is required to take immunosuppressant drugs. He is concerned biologic agents from the proposed facility may cause him infection in light of his compromised immune system. Eugene Lemke lives three miles east/northeast of the proposed facility and suffers from emphysema and asthma. Pam Klein has had a liver transplant and Marlene Altman suffers from a lung problem. However, when determining whether a nuisance exists, the fact finder uses a “normal person standard” to determine whether a nuisance involving personal discomfort or annoyance is significant enough to constitute a nuisance. Weinhold, 555 N.W.2d at 459.

We agree with the district court the evidence concerning health issues is speculative due to the distance the neighbors live from the site of the proposed facility. Dr. Stephanie Seemuth, an osteopathic physician, testified on behalf of the neighbors. She testified Sow 1 will cause “negative health risk to people around it.” On cross-examination, Dr. Seemuth conceded these effects will not “necessarily result” from the location and operation of the proposed facility. The studies upon which she relied dealt with children living on farms with CAFOs and workers exposed daily to the fumes and dusts of CAFOs. The neighbors presented no credible evidence a serious health threat is posed to normal individuals living one or more miles from a CAFO.

2. Water quality issues. The neighbors expressed concerns about the potential for groundwater contamination. The neighbors obtain their drinking water from wells, some of which are shallow. For example, the Caseys rely on a forty-foot well. The site of Sow 1 is low and in wet years has standing water. Mel Berryhill, who was the operator of the Milford, Iowa, water plant for eighteen years, testified on behalf of the neighbors. He explained the water table in the vicinity is three to six feet underground and the proposed facility will be ten to eleven feet deep. He testified there is an alluvial aquifer in the area. According to Berryhill, there is a “high to moderate” potential for well and aquifer contamination. He noted there is an agricultural drainage well located a mile to a mile-and-a-half away from the proposed facility.

Dennis Johnson, an engineer from Windom, Minnesota, who often works for developers of hog confinement facilities, testified for General Development. According to Johnson, all of the concerns expressed by the neighbors have been addressed. The manure pit will be made of heavily reinforced concrete cement. The ground elevation has been raised so the top of the pit will be four-and-a-half feet above the 100-year flood level. The agricultural drainage well is scheduled to be closed. An intermittent stream near the proposed facility will be relocated. Tile will be installed around the footing of the concrete pits to artificially lower the ground water. Moreover, the DNR concluded the engineer had adequately addressed concerns about groundwater contamination. We agree with the district court the neighbors failed to prove groundwater contamination will necessarily result from Sow 1.

3. Odor issues. It is undisputed hog manure stinks. Dr. James Moore, a retired professor from Oregon State University with a Ph.D. in livestock waste systems, testified on behalf of the neighbors. He opined the neighbors will be “negatively influenced,” the use of their property will be “impacted,” and they will regard the proposed facility as a nuisance. He said a deep pit system is one of the most odor-producing systems that can be used to raise hogs because it stores the waste in pits for up to twelve months and gives the waste an opportunity to anaerobically break down. However, he conceded deep pit storage such as the one planned for Sow 1 is by far the most predominant type of manure storage used in Iowa and the upper Midwest. Dr. Moore noted fans will withdraw the gases generated by the manure and place them in the atmosphere, which can impact the neighbors. He acknowledged with “very attentive” operators, the process of “knifing” or “injecting” manure into the soil will “significantly” reduce odor. He also acknowledged tree lines have been shown to reduce odor.

In response, General Development called Dr. Dwaine Bundy. Dr. Bundy is retired from Iowa State University and currently is a consultant for hog confinement operators. He testified management practices have a significant impact on odor, such as including additives in the deep pit, cleaning, and type of feed. He testified one advantage of the deep pit system is that less surface area of the manure is exposed, which causes a reduction in odor. Dr. Bundy stated he would not expect a nuisance to occur at a half to one mile away or more. He claimed spreading manure by injection can cause a thirty to ninety percent reduction in odor at the time of application and no appreciable odor should remain after twenty-four hours. Eric Wiklund from the DNR testified most complaints about odor come from people living less than a mile from a CAFO.

We agree with the district court it is “debatable” whether the odors produced by Sow 1 will rise to the level of an actionable nuisance. Dr. Moore and Dr. Bundy agree the level of odor will depend on the type of manure management system (here a deep pit system), distance between the facility and the neighbors, direction of the prevailing winds, the method and means of handling manure, location of trees, and the skills of the operators applying the manure to the fields. Until the facility is in operation, we cannot say it inevitably will produce odors which qualify as a nuisance.

4. Property value concerns. Finally, the neighbors also expressed concerns their property values will decrease as a result of Sow 1. James Kesterson, an appraiser and realtor from Fort Dodge, Iowa, testified on behalf of the neighbors. He opined some properties in the vicinity would suffer a loss in value because people do not want to live near a hog confinement facility. Kesterson did not specify which properties would decrease in value nor did he quantify the expected loss in value. On cross-examination, he was asked, given the number of existing CAFOs already in the area, whether one more would cause a reduction in value. Kesterson said it would “depend.”

Two experts testified for General Development with respect to Sow l’s impact on property values. Dr. Bruce Babcock, an economics professor at Iowa State University, testified about a study he conducted on behalf of the Center for Agriculture and Rural Development. The study found a new CAFO within a quarter of a mile of a residence may reduce the value of the property by ten percent. The perceived loss in value falls steeply when the new facility is a half mile away and at one-and-a-half miles away, the impact is negligible. Fred Greder, an independent fee appraiser, also testified. He acknowledged a reduction in property values may occur, but it was not probable. In his opinion, there are several factors bearing on whether a decline in the value of any particular property will occur: (1) the highest and best use of the property; (2) distance; (3) direction from unit to account for prevailing wind; (4) whether the CAFO is within view of the property in question; (5) the size of the CAFO; (6) whether manure is stored indoors or outdoors; (7) whether the property in question is modest or expensive; and (8) whether the pigs are locally owned or non-locally owned. The district court found all of the experts credible. We agree with the district court that we cannot conclude based on the conflicting evidence that property values will necessarily or certainly decline should the CAFO be built.

IV. Conclusion.

The neighbors’ experts raised legitimate concerns regarding the operation of Sow 1. However, those experts conceded they could not be certain a nuisance will necessarily result if General Development is allowed to develop and operate Sow 1. Moreover, while the neighbors’ attorney argued the defense experts were biased toward the hog industry, the district court found those experts credible, at least to the extent their testimony cast doubt on whether Sow 1 would cause a nuisance.

In recent years, hog confinement operations have become more controversial as they grow in number and size. Our task here is a narrow one — we are asked to determine whether the neighbors have proven an anticipatory nuisance.. We agree with the district court they have not.

AFFIRMED.

All justices concur except LARSON, J., who takes no part.

      . There are numerous defendants in this action: General Development L.L.C. a/k/a General Development Corp. and Kollasch Land and Livestock, Inc. are companies owned by Luke Kollasch and Charlie Kollasch. John Mertz owns the property where the proposed facilities are to be located. Donald R. Tietz, Kevin Berte, Dean Berte, Craig Berte, and Nicholas Berte entered into manure easement agreements with Kollasch Land and Livestock, Inc. which allow manure from the proposed facilities to be spread on their respective lands. Throughout our opinion, we will simply refer to the defendants as "General Development.”

      . These proposed facilities were identical in size.

      . Based on the record, it appears Sow 1 was expected to compost 260 sows and the rest would be gilts and preweaned pigs.