What is the "Use" of the Vehicle?
Prof. Bill Long 11/13/06
For Purposes of Liabilty and Uninsured Motorist Coverage
People find a number of interesting ways to become hurt and to hurt each other from vehicles. Cars can be the location of tailgate parties where people reach into the cooler and come out with a severed hand. As we saw in Evans, the vehicle is the situs from which an exploding missile was thrown that happened to end up in the beer of one of the persons whom the gathered people were honoring. Backs of pickups are the place where ferocious dogs often bite the hands and faces of those who come too close. Moving cars are also the location of lots of stuff: objects propelled against bike riders, gunshots ringing out against others, and, in general, episodes of road rage that lead to people forcing each other off the road and other forms of deadly activity. Few if any people think of the insurance law implications of the tortious activity they perform from cars; part of the "clean-up" of the physical and economic mess of these activities, however, is often a determination of what kind of automobile insurance, if any, is available to compensate people hurt because of negligence or recklessness of those in vehicles.
This and the next two essays will examine the language of automobile insurance policies and the facts of a few cases to show the difficulties faced by courts in trying to decide whether automobile insurance is implicated by tortious conduct.
Beginning with the Language of the Policies
Two provisions of automobile insurance policies are often invoked to try to compensate victims of those who have done tortious activities against them from vehicles. If the vehicle is uninsured, then the following policy provision enters into play (though the policy may differ in certain minor ways, this ISO-form is typical):
"A. We will pay compensatory damages which an "insured" is legally enttield to recover from the owner or operator of an "uninsured motor vehicle" because of "bodily injury": 1. Sustained by an "insured;" and 2. Caused by an accident. The owner's or operator's liabilty for these damages musst arise out of the ownership, maintenance or use of the "uninsured motor vehicle."
If the vehicle is insured, however, recovery is sought under the liability portion of the policy, the most recent interation of which in the ISO (Insurance Services Office) model policy reads:
"A. We will pay damages for "bodily injury" or "property damages" for which any "insured" becomes legally responsible because of an auto accident."
Though this coverage appears to be much narrower than the language of "ownership, maintenance or use" of a vehicle in the uninsured motorist provision, all states have Financial Responsibility Laws, most of which mandate a liability policy that covers people for the "ownership, maintenance or use" of a vehicle. Thus, even though the policy language attempts to narrow the applicability of the liability insurance to "auto accidents" (which are never routinely defined in a policy), the broader statutory requirement normally makes the liabilty policy coverage as broad as uninsured motorist coverage. The central word in both types of coverage is "use." Insurance companies are on the hook if the insured is "using" the vehicle at the time when the claim arises. What does "use" mean?
We don't really know how to interpret the word "use" in an automobile policy, however, until we study a few cases, discover the "causal nexus" requirement and then try to think about what a court is saying. Let's take three cases from various jurisdictions.
1. Cole v. United Services Auto Ass'n, 68 P3d 513 (Colo App 2002). Let's begin with the briefly told facts of the case.
"Plaintiff was a passenger in an automobile traveling in the right lane of Union Boulevard in Colorado Springs when an uninsured vehicle began to tailgate plaintiff's vehicle. The driver of plaintiff's vehicle slowed so that the uninsured vehicle could pass. The uninsured vehicle then pulled around plaintiff's vehicle on the left and "pulled back in front of [plaintiff's] vehicle and stopped suddenly." Plaintiff's vehicle stopped to avoid a collision. The driver of the uninsured vehicle then backed his vehicle into the front of plaintiff's vehicle. Both drivers left their vehicles, and an altercation ensued. A passenger in the uninsured vehicle went to plaintiff's vehicle, opened the passenger door, and assaulted plaintiff with his fists and a wine bottle."
Cole, insured by United, put in a claim for personal injury protection (medical) coverage, which United paid. United decided that uninsured motorist coverage wasn't available to Cole because his injuries were "not the result of an auto accident but [of an] assault from a person entering [plaintiff's vehicle] as a pedestrian." The trial court, however, held that there was coverage. Citing an earlier CO decision where the firing a bullet from an uninsured vehicle into the victim's car triggered the victim's UM coverage, the court decided that there would be coverage under Cole's UM policy provision with United.
On appeal the defendant insurance company restated its case: plaintiff's injuries didn't arise out of the use or operation of the uninsured vehicle but rather resulted from a physical attack by an assailant who had "severed his connection with the parked uninsured vehicle." In making its decision the Court of Appeals stated the relevant principle of law:
"An injury arises out of the use of an automobile if it is causally related to a conceivable use of the automobile that is not foreign to its inherent purpose. To establish this causal relationship, the claimant must show that the injury would not have occurred but for the vehicle's use," 68 P3d at 515.
The court said that other language which captured the nature of the policy language was an injury that "originated in," "grew out of," or "flowed from" the use of the vehicle. You can see the fairly subjective nature of these tests, but they are what the court has to deal with. After citing a few precedents, where tailgating and other activities led to verbal and physical altercations, the court concluded that the uninsured vehicle was not simply used to transport the assailant to the scene of the assault but was "integrally related to the perpetration of the assault." The court then said: "Plaintiff has established a causal connection between his injuries and the uninsured vehicle sufficient to trigger uninsured motorist coverage under the policy." Hence, Cole was covered under the uninsured motorist section of his policy.
Well, this is good news from CO for those who might be victims of assault by uninsured motorists, but now let's take a trip to North Carolina.
Copyright © 2004-2007 William R. Long