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Insurance Law

California Supreme Court to Address One of My Favorite Issues - “Use of an Auto”

Two Lewis Brisbois Lawyers Superbly Explain What’s At Stake

I’ve always liked “use of an auto” cases – be they in the context of coverage under an auto policy or the auto exclusion in a general liability or homeowners policy. It is usually a make or break issue for coverage and the cases have a way of involving peculiar facts. And there’s a reason for that.

After all, since automobiles are designed with a clear purpose in mind, getting to Point B, what’s “use of an auto” shouldn’t be all that hard to figure out. So, if “use of an auto” is being litigated, then, by definition, it’s probably because the claim involves something more than a person simply sitting behind the wheel, motoring down the road and minding their own business. These “use of an auto” cases are also legion. Again, not surprising, since automobiles are so prevalent, on a daily basis, in so many people’s lives.

These are a few of my favorite things when it comes to “use of an auto” cases:

•  Colon v. Liberty Mutual Ins. Co., New Jersey Superior Court, App. Div., Jan. 20, 2012, [subscribers can access an enhanced version of this opinion: | Lexis Advance], (automobile driver that bit police officer on the arm during a traffic stop did not qualify as use of an auto for purposes of a homeowners policy) (extra tidbit -- upon being stopped driver gave her name to the officer as Beyonce Knowles).
•  Sunshine State Ins. Co. v. Jones, Florida Court of Appeal, Jan. 18, 2012, [subscribers can access an enhanced version of this opinion: | Lexis Advance], (grabbing the steering wheel to annoy your girlfriend, while she is driving, did not qualify as use of an auto for purposes of a homeowners policy).
•  Hays v. Georgia Farm Bureau Mut. Ins. Co., Georgia Court of Appeals, Feb. 14, 2012, [subscribers can access an enhanced version of this opinion: | Lexis Advance], (using a pick-up truck and a pulley system, in attempting to lift a portable toilet onto the top of a deer stand, qualified as use of an auto for purposes of a homeowners policy).

But not all discussion of “use of an auto” cases need focus on the oddball facts (as I enjoy doing). There are serious legal issues at work too. Two lawyers from Lewis Brisbois Bisgaard & Smith recently did a very fine job demonstrating, in a Law360 piece, that a serious discussion of the legal issues can be had as well.

According to Michael R. Velladao and Nicole R. Kardassakis, of LBB&S’s Los Angeles office, the Ninth Circuit, in Gradillas v. Lincoln General Insurance Company, 792 F.3d 1050 (9th Cir. 2015), [subscribers can access an enhanced version of this opinion: | Lexis Advance], recently certified the following question to the California Supreme Court: “When determining whether an injury arises out of the ‘use’ of a vehicle for purposes of determining coverage under an automobile insurance policy and an insurance company’s duty to defend, is the appropriate test whether the vehicle was a ‘predominating cause/substantial factor’ or whether there was a ‘minimal causal connection’ between the vehicle and the injury?”

Mr. Velladao and Ms. Kardassakis see the answer to this question as potentially leading to a significant increase in the extent to which “use of an auto” is satisfied for purposes of an auto policy.

Specifically at issue in Gradillas is whether “use of an auto,” under an auto policy, is satisfied where a bus driver rapes a woman while on a bus, where the driver had moved the bus to a secluded area prior to committing the crime.

As the LBB&S lawyers describe it, California has long applied a stringent “substantial factor” test for determining whether an alleged bodily injury “arose out of” the use of the vehicle. But the authors believe that this could all change on account of the issue certified to the California high court. They describe what could happen, if the less stringent standard is adopted, like this:

“The Ninth Circuit’s question sets the stage for potentially expanding the interpretation of what constitutes the use of a vehicle from what is — the substantial factor test — to what could be — the minimum causal connection test. If the California Supreme Court adopts the more fluid minimum causal connection test, a vehicle would no longer have to serve as the instrumentality in causing the alleged injury or damage. Rather, all that would be required is a simple connection between the alleged injury or damage and use of the vehicle. Hence, so long as the use of the vehicle facilitated the alleged injury or damage, coverage would be afforded under the insuring agreement of an auto policy. This change would not only upset nearly half a century of legal precedent, but would also dramatically expand the coverage afforded under automobile policies. Such an expansion would impose upon insurers the obligation to provide coverage for all injuries having a minimum causal connection to the use of a vehicle — coverage for which the insurers did not bargain.”

[Of course, “use of an auto” is (or should be) a zero sum game. In other words, if it is easier to satisfy “use of an auto” for purposes of an auto policy’s grant of coverage, then it should likewise be easier to satisfy the “use of an auto” exclusion in a general liability or homeowners policy. However, it seems pretty obvious that auto policies play a much bigger role in the context of automobile accidents than CGL and homeowners policies. So the authors are certainly focused on the more important side of the equation.]

Coverage Opinions is a bi-weekly (or more frequently) electronic newsletter reporting or providing commentary on just-issued decisions from courts nationally addressing insurance coverage disputes. Coverage Opinions focuses on decisions that concern numerous issues under commercial general liability and professional liability insurance policies. For more information visit

The views expressed herein are solely those of the author and not necessarily those of his firm or its clients. The information contained herein shall not be considered legal advice. You are advised to consult with an attorney concerning how any of the issues addressed herein may apply to your own situation. Coverage Opinions is gluten free but may contain peanut products.

    Randy Maniloff is Counsel at White and Williams, LLP in Philadelphia. He previously served as a firm Partner for seven years and transitioned to a Counsel position to pursue certain writing projects including Coverage Opinions . Nonetheless he still maintains a full-time practice at the firm. Randy concentrates his practice in the representation of insurers in coverage disputes over primary and excess obligations under a host of policies, including commercial general liability and various professional liability policies, such as public official’s, law enforcement, educator’s, media, computer technology, architects and engineers, lawyers, real estate agents, community associations, environmental contractors, Indian tribes and several others. Randy has significant experience in coverage for environmental damage and toxic torts, liquor liability and construction defect, including additional insured and contractual indemnity issues. Randy is co-author of “General Liability Insurance Coverage - Key Issues In Every State” (Oxford University Press, 2nd Edition, 2012). For the past twelve years Randy has published a year-end article that addresses the ten most significant insurance coverage decisions of the year completed.

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