Shooting Arises out of Use of a Vehicle; UIM Cover Exceedingly Broad in Washington State

A truly stupid person fired a weapon from an automobile – claiming no intent to harm anyone but striking plaintiff Heidi Kroeber and injuring her. She claimed she was entitled to underinsured motorist (UIM) coverage because the shooting arose out of the use of the auto the shooter was in when he shot her. GEICO disagreed.

In Certification from the United States District Court for the Western District of Washington in Heidi Kroeber a/k/a Heidi Lazenby v. GEICO Insurance Company, 2016 WL 166528 (No. 91846–5) (Jan. 14, 2016), the Washington Supreme Court answered questions posed by a US District Court.

FACTS

The Supreme Court was faced with two certified questions from the United States District Court for the Western District of Washington. First, the Supreme Court was asked to determine for the purposes of underinsured motorist (UIM) coverage whether an injury to an insured pedestrian “arose out of” the intentional firing of a gun from an uninsured pickup truck. Second, it was asked whether it is material if the shooter intended to harm anyone when firing the gun.

On February 12, 2012, plaintiff Heidi Kroeber was shot outside the Bad Monkey Bar in Kent, Washington by Matthew Atkinson, who was driving an uninsured truck belonging to a friend at the time he opened fire. Plaintiff and her boyfriend had antagonized Atkinson earlier that evening. After pleading guilty to the crime of “Drive–By Shooting,” Atkinson claimed that he had not intended to injure anyone with his shot and later claimed that he did not know that he was shooting where people were standing.

Plaintiff filed a claim with defendant, GEICO Insurance Company, to recover damages under the UIM coverage provision of her own automobile insurance policy. Under the relevant parts of this policy, GEICO is liable for damages an insured is legally entitled to recover from the owner or operator of an underinsured motor vehicle. GEICO denied plaintiff’s claim, asserting that her injuries did not arise out of the use of Atkinson’s truck.

Plaintiff sued GEICO, claiming that she was entitled to UIM coverage under her automobile insurance policy. The district court found that the shooting constituted an “accident” for the purposes of plaintiff’s policy, that plaintiff’s policy unambiguously requires GEICO’s liability to “arise out of” the shooter’s use of the truck, and that the vehicle was “in use” at the time of the shooting as contemplated by the insurance contract.

ANALYSIS

Question 1

Insurance contracts are considered as a whole and given a fair, reasonable, and sensible construction—the same way an average person would when purchasing insurance. For the purposes of UIM insurance contracts, Washington cases have not provided a clear rule to determine where an injury “arises out of” vehicle use. Washington case law has established, though, that some causal connection must exist between the use of an automobile and the resulting injury. The words “arising out of the use” are unambiguous and require a degree of causality between the injury and the use of the vehicle.

The phrase “arising out of” does not force the interpretation that before coverage can exist it must appear that the injury was the proximate result of the use of the automobile. Such a construction would do violence to the normal meaning of those words.

Washington cases have neither explicitly embraced nor rejected the “but for” analysis plaintiff proposes. It follows that the accident would not have happened as it did but for the use of the vehicle; that Heidi’s injuries originated from, had their origin with, grew out of, or flowed from her use of the truck; that the truck causally contributed in some fashion toward producing the injury; and that the truck was more than a coincidental place at which the injury occurred. What Washington cases have established is that for an injury to “arise out of” vehicle use, the vehicle itself or an attachment to it does not need to be the direct cause of the injury. Rather, the facts must establish that the accident involved some causal relationship between a condition of the vehicle, a permanent attachment thereto, or some aspect of its operation.

Washington insurance statutes are to be liberally construed for the benefit of the public. The purpose of Washington UIM coverage is to protect innocent victims of motorists of underinsured motor vehicles.

The Washington Supreme Court held that no causal connection exists where it is established that the vehicle serves as the “mere situs” of the accident. The fact that a vehicle is the mere situs of an accident, however, is not sufficient to establish the required causal connection. The vehicle must contribute in some fashion toward producing the injury; the vehicle must be more than the coincidental place in which the injury occurred.
Determining whether a vehicle is the mere situs of an accident is a factual determination to be made by the trial court.

To assist in such a determination, the Supreme Court added that an automobile is more than the mere situs of an accident if some causal connection does in fact exist between the use of the vehicle and the injury. In such circumstances, liability attaches to the insurer “under an insurance contract providing for coverage of an accident arising out of use of the vehicle. Thus, the rule is that some causal connection exists when the events leading up to an injury involve vehicle use, unless the vehicle is merely the coincidental location of the accident. Since Atkinson drove the pickup to the location from which he fired his weapon the Supreme Court concluded that there was a causal connection between the pickup and the injury and UIM coverage was required.

Question 2

With regard to question two whether the driver/shooter’s intent to fire the gun is legally significant for triggering UIM coverage. The shooter’s intent informs the “accident” prong of UIM coverage. Here, Kroeber asserts—and GEICO concedes—that the injury was caused by an “accident” as contemplated by both the automobile insurance policy and the statutory definition. As such, the shooter’s intent does not affect whether the injury “arose out of” the use of the automobile.

CONCLUSION

An injury “arises out of” vehicle use if some causal connection exists between a condition of, an attachment to, or some aspect of the vehicle’s use and the resulting injury. Conversely, an injury does not “arise out of” vehicle use when the vehicle is merely the situs of the accident. The Supreme Court answered the second question in the negative because both parties agreed that the injury was caused by “an accident.”

ZALMA OPINION

The test adopted by the Washington Court is very broad. Under this test, “but for” causation is not necessary nor is “proximate causation” to find coverage under a UIM policy. All that is needed is that the trier of fact find “some causal connection.” By applying such a subjective and wide open test, just about any injury that can be connected to the use of an automobile would be covered under a UM/UIM policy in Washington state. UM/UIM insurers in that state should direct their investigations to determine whether some causal connection exists and if it does, the claim must be paid.