Appellate Court Rejects Insured’s Expansive Definition of “Arising out of the use” Clause

By: Christopher W. Olmsted, Insurance Defense Attorney

An uninsured motorcyclist and an insured driver are involved in a collision. While they are exchanging information as required by the Vehicle Code, the biker becomes enraged and attacks the other driver, killing him. Do the injuries “arise out of the use” of a vehicle such that the driver’s heirs can recover uninsured motorist benefits?

No, according to a recent Second District Court of Appeal decision, California Automobile Ins. Co. v. Hogan (Oct. 29, 2003), ___ Cal.App.4th ___ [No. B161245].

Case Facts

Mr. Hogan was driving his car with his wife when he collided with a motorcycle driven by Mr. Lionetti. Mr. Lionetti, a large muscular man, became belligerent when Mr. Hogan asked to exchange insurance information. He punched Mr. Hogan in the face, knocking him to the ground and causing him to hit his head on the pavement. Mr. Hogan died a few days later from craniocerebral trauma. Mr. Lionetti pled guilty to manslaughter.

Mr. Lionetti was uninsured. Mr. Hogan’s heirs brought an uninsured motorist claim against Mr. Hogan’s insurer, California Automobile Insurance Company (“CAIC”). The policy provided for coverage “for all sums which an insured . . . shall become legally entitled to recover as damages from the owner . . . of an uninsured motor vehicle because of bodily injury . . . arising out of the ownership, maintenance, or use of such uninsured vehicle.” CAIC denied coverage and filed an action for declaratory relief. The heirs cross-complained for breach of contract and bad faith.

Legal Analysis

The legal issue in the case was whether Mr. Hogan’s fatal injury arose out of the use of Mr. Lionetti’s uninsured motorcycle.

The heirs relied on an earlier California Supreme Court case, State Farm Mut. Auto. Ins. Co. v. Partridge (1973) 10 Cal.3d 94, 100-101. In Partridge, a passenger in the insured’s truck was accidentally shot while the insured was driving the truck off-road hunting for jackrabbits. The insured had a hair-trigger gun that went off when he drove over a bump. Finding coverage, the Supreme Court provided a seemingly expansive definition of the relevant policy language. The Court explained that the phrase “arising out of the use,” when used in a coverage or insuring clause of an insurance policy, has “broad and comprehensive application.” “It affords coverage for injuries where the insured vehicle bears ‘almost any causal relation’ to the accident at issue, however minimal.” The Hogan heirs adopted this language and argued that the events that led from the accident to Mr. Hogan’s injuries were part of an unbroken chain of events arising from the accident. The heirs pointed to Cocking v. State Farm Mut. Automobile Ins. Co., (1970), wherein coverage applied to a driver struck by a vehicle as he was standing near his own vehicle preparatory to placing chains on his tires. Further, the heirs argued that since Mr. Hogan was exchanging information as required by Vehicle Code sections 20001 and 20002, there was a sufficient causal connection between the accident and the injuries.

The court rejected the heirs’ arguments. The appellate court reviewed prior California cases rejecting coverage. In one case, the uninsured motorist used his car bumper to break a glass bottle, and the car door as a shield, while he stabbed the claimant with the broken bottle. In another case, a claimant was raped inside an uninsured vehicle. In another case, a dispute broke out regarding the use of high beam headlights, leading to a stabbing. There was no coverage in these cases. Generalizing these cases, the Hogan court concluded that where the uninsured vehicle is used merely to transport the tortfeasor to the site where the injury occurred, or is used merely as “furniture,” there is no coverage because the use of the vehicle is merely incidental to the direct cause of the injuries sustained. The use of a vehicle must be the predominating cause, or a substantial factor causing the injury.

In Mr. Hogan’s case, the use of the motorcycle was merely incidental to the direct cause of the injuries. The only role of the motorcycle was to transport Mr. Lionetti to the site where he committed the crime. The punch to the face was the direct cause of the fatal injuries. Further, the exchange of information after the accident did not qualify as “use” of the vehicle. Therefore, the injury was not covered by Mr. Hogan’s uninsured motorist coverage.

Conclusion

This case serves to add depth the line of cases declining to broaden the required causal connection between the ownership, maintenance, or use of a vehicle and a claimant’s injuries.

Christopher Olmsted is an attorney with Barker Law Group, APLC in San Diego, CA. Mr. Olmsted’s insurance defense experience encompasses insurance bad faith and first and third party insurance coverage and defense. He has represented clients in state and federal jury and bench trials, appeals before California and federal courts of appeal, judicial and contractual arbitrations, and administrative law hearings. Mr. Olmsted can be reached at (619) 682-4820 or via email, cwo@barkerlawgroup.com.

Christopher W. Olmsted, Esq.
Direct: (619) 682-4820
cwo@barkerlawgroup.com

Practice Area:
Civil Litigation

Areas of Emphasis:
Employment Litigation and Labor Law
Insurance Defense
Insurance Bad Faith
Construction Litigation
Business Litigation

Bar Admissions:
California, 1994
California District Court, Central District of California, 1994
U.S. Court of Appeals, Ninth Circuit, 1996

Education:
J.D., Loyola Law School, 1994
B.A., University of California, Berkeley, 1991

Summary:
Mr. Olmsted is an attorney practicing in the areas of employment litigation and compliance, business litigation, insurance defense, and insurance bad faith. His experience in insurance defense includes automobile, commercial, and homeowners claims, and encompasses personal injury, property damage, mold claims, and wrongful death matters. He has litigated bad faith cases including homeowners, mold, automobile, and disability insurance claims. Additionally, he has represented clients in the areas of business and commercial litigation, asbestos litigation, construction collection and construction defects.

Mr. Olmsted's employment litigation experience includes: FEHA claims regarding race, gender, age, religion, national origin, sexual orientation, disability, pregnancy and sexual harassment; California CFRA and federal FMLA; federal ADA and ADEA; False Claim and whistleblowing actions; public policy violations; ERISA; Labor Board and Unemployment Insurance claims. He has represented clients in state and federal jury and bench trials, appeals before California and federal courts of appeal, judicial and contractual arbitrations, and administrative law hearings.

Mr. Olmsted is a member of: San Diego Risk and Insurance Management Society, Association of Business Trial Lawyers, California Bark Employment Law Section and San Diego County Bar Association Insurance Section.

Reported Cases:

• Wittkopf v. County of Los Angeles, 90 Cal.App. 4th 1205; Colmenares v. Braemar Country Club, 89 Cal.App. 4th 778.

• Speaker on “The Nuts & Bolts of Prevailing Wage Law” for the Engineering General Contractor’s Society, San Diego, December 2, 2003.
• Speaker regarding California Leaves of Absences, Lorman Educational Services Seminar, San Diego, CA, October 15, 2003.
• Speaker on “How to Litigate Your First Civil Trial in California,” National Business Institute, San Diego, CA, 2003.
• Firm-sponsored seminar on Employment Law: Avoiding Liability in the Hiring Process, San Diego, CA, March 27, 2003.
• Speaker regarding Employment Issues for the Construction Trade, Lorman Educational Services Seminar, San Diego, CA July 20, 2002.

• San Diego Volunteer Lawyer Program, Domestic Violence Clinic San
• Diego Volunteer Lawyer Program – Disaster Relief Assistance

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