The Need For a Causal Relationship: Arising Out of Use Required

Uninsured and Underinsured motorist coverage protects against injuries arising out of the use of an automobile. Missouri, in Walden v. Smith and American Family Mutual Insurance , Court of Appeals of Missouri Western District, (April 15, 2014) [enhanced version available to lexis.com subscribers], was faced with an issue of first impression whether an injury occurs from a dog poking its head out of a parked truck and biting the plaintiff is an injury arising out of the use of the uninsured automobile.

Cindy Walden (“Walden”) appealed a trial court’s entry of summary judgment in favor of American Family Mutual Insurance Company (“American Family”) who found that Walden’s American Family automobile policies did not afford uninsured motorist coverage for injuries Walden sustained when a dog bit her through an open window of a vehicle because her injuries did not “arise out of the use” of the vehicle.

FACTUAL BACKGROUND

On September 28, 2006, Walden, an employee at a bar and grill in Gladstone, Missouri, was walking to her place of employment. She saw Kenneth Smith’s (“Smith”) pick-up truck in the parking lot. Smith was sitting in the parked vehicle and had two pit bull terriers in the cab of his truck. Walden approached the truck and stood outside the driver’s side door. One of Smith’s dogs lunged through the open driver’s side window and bit Walden on the upper lip. Smith did not have insurance. However, Walden had several automobile liability policies with American Family.

Walden’s petition sought a declaratory judgment that she was entitled to coverage under the uninsured motorist provision in her American Family policies. Walden alleged that Smith was an uninsured motorist and “was engaged in the operation and use of his motor vehicle, was in the process of transporting his dog, and failed to contain said dog” resulting in Walden’s injuries.

THE POLICIES

The American Family policies each provide:

“PART III–UNINSURED MOTORIST COVERAGE

“We will pay compensatory damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle. The bodily injury must be sustained by an insured person and must be caused by accident and arise out of the use of the uninsured motor vehicle.”

The policies do not define the phrase “arise out of.” The policies define “use” as “ownership, maintenance, or use.”

THE MOTIONS FOR SUMMARY JUDGMENT

American Family filed a motion for summary judgment on the declaratory judgment action. American Family argued that the uncontroverted facts established as a matter of law that Walden’s injuries did not “arise out of the use” of Smith’s uninsured vehicle and established only that Smith’s vehicle was the “situs” of the injury.

Walden admitted all of the uncontroverted facts asserted in American Family’s motion for summary judgment, and generally alleged that her injuries arose out of the use of Smith’s vehicle. The parties thus agreed that the uncontroverted facts permitted the entry of judgment as a matter of law on the issue of coverage. They disagreed, however, about the legal effect of the uncontroverted facts.

The trial court entered an order granting American Family’s motion for summary judgment and denying Walden’s motion for summary judgment.

Walden appealed.

ANALYSIS

The sole issue presented is whether the injuries arose out of the use of an uninsured vehicle. No Missouri court has addressed whether injuries caused by a dog when it is being transported in a motor vehicle “arise out of the use” of the vehicle as to support coverage under an automobile liability policy.

“Arising out of” requires a causal relationship but not proximate cause. The omnibus clause in the policy afforded coverage for bodily injuries “caused by accident and arising out of the ownership, maintenance, or use of the automobile.”

The words “arising out of” use of an automobile are very broad, general and comprehensive terms. There is nothing in the policy requiring that the ownership, maintenance, or use of the automobile shall be the direct and efficient cause of the injuries sustained.

Missouri courts consistently define the phrase “arising out of” to require a causal relationship, described as “originating from” or “having its origins in” or “growing out of” or “flowing from” the object or circumstance referenced in the policy or statute. Here, the referenced object or circumstance is the “use” of a vehicle.

Unless “use” is otherwise defined by the policy, “use” refers broadly to the employment of a vehicle for some purpose or object of the user and includes any act that assumes the ability to exercise supervisory control or guidance over the vehicle’s movement.

“Use” is defined in American Family’s policies (and in many automobile policies) as “ownership, maintenance, or use.” Defining “use” by reference to “use” has required Missouri courts to determine the “uses” of a vehicle other than “ownership” and “maintenance” which will support coverage. “Use” and “operation” are not synonymous. “Use” of an automobile by an individual involves his employment for some purpose or object of the user while its “operation” by him involves his direction and control of its mechanism as its driver for the purpose of propelling it as a vehicle.

“Use” of a vehicle alone does not support coverage, however, under American Family’s policies. Coverage requires that an accident causing injury “arise out of the use” of a vehicle.

First, an accident causing injury does not “arise out of the use of a vehicle” when the vehicle is merely the “situs” or “locus” of an injury. So long as a vehicle’s use bears a causal relationship with the accident causing injury, there will be coverage, even if the “accident” does not involve the vehicle itself or its operation.

“Use” of a vehicle, though broadly defined, nonetheless requires a use consistent with the inherent nature of a vehicle, including, but not limited to, driving, riding in, or operation of a vehicle. The requirement that an injury be related to an “inherent use” of a vehicle is another way of saying that an injury must bear a causal relationship to a vehicle’s nature.

For an accident causing injury to “arise out of the use” of a vehicle, the purpose for which the vehicle is being employed must be consistent with the vehicle’s inherent nature, and must create a condition which contributes to cause the accident. Human conduct wholly independent of the operation or use of the vehicle without causal connection between the use of the automobile and the injury will not support coverage. Not every tortious act occurring inside a vehicle constitutes use of that vehicle for imposing liability under an automobile liability policy.

For an accident causing injury to “arise out of the use” of a vehicle, the use of a vehicle must be consistent with the vehicle’s nature as a vehicle, and must create a condition that contributes to cause the accident. If the uncontroverted facts establish only that an injury occurred while a vehicle was being used, then the injury does not arise out of the use of the vehicle as a matter of law.

Smith’s vehicle was merely the “situs” of Walden’s injuries. The trial court found that the uncontroverted facts could not establish the required causal relationship between the accident causing Walden’s injury and Smith’s use of his vehicle. The uncontroverted facts do not establish that Smith’s use of his vehicle to transport his dogs created a condition that caused the dog to bite Walden. At most, the uncontroverted facts established that Smith’s vehicle was the “situs” of Walden’s injuries. Indeed, the uncontroverted facts established only that human conduct – Smith’s negligence in failing to warn Walden or to restrain his dog – was wholly independent of the operation or use of the vehicle caused the dog to bite Walden.

ZALMA OPINION

There is no question that Mr. Smith was responsible for Ms. Walden’s injury. Unfortunately for her Mr. Smith was uninsured with an automobile or a homeowners’ policy that might have covered his exposure to liability for her injuries. The suit arose because he was basically judgment proof. By attempting to gain coverage from her uninsured motorist coverage she argued, unsuccessfully, to expand case law to allow coverage only if the injury results from the “use” of an automobile but is not causally related to or arising out of the use of the vehicle as a vehicle. Since it was standing still and not in operation and there was no relationship between its operation and Walden’s injury, she recovered nothing.

    By Barry Zalma, Attorney and Consultant

Reprinted with Permission from Zalma on Insurance, (c) 2014, Barry Zalma.

Barry Zalma, Esq., CFE, is a California attorney who limits his practice to consultation regarding insurance coverage, insurance claims handling, insurance bad faith and fraud and acting as a mediator or arbitrator on insurance disputes. Mr. Zalma serves as a consultant and expert almost equally for insurers and policyholders. He founded Zalma Insurance Consultants in 2001 and serves as its only consultant. He recently published the e-books, "Zalma on Rescission in California - 2013"; "Random Thoughts on Insurance" containing posts from this blog; "Zalma on Insurance;" "Murder and Insurance Don't Mix;" “Heads I Win, Tails You Lose — 2011,” “Zalma on Diminution in Value Damages,” “Arson for Profit” and “Zalma on California Claims Regulations,” and others that are available at Zalma Books.

Mr. Zalma can be contacted at Barry Zalma or zalma@zalma.com, and you can access his free "Zalma on Insurance Fraud" newsletter at Zalma’s Insurance Fraud Letter.

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