American Nat. Property & Cas. Co. v. Julie R.

• Decision Date: 08 November 1999
• Docket Number: No. B125033.,B125033.
• Citation: 90 Cal.Rptr.2d 119,76 Cal.App.4th 134
• Court: California Court of Appeals Court of Appeals
• Parties: AMERICAN NATIONAL PROPERTY AND CASUALTY CO., Plaintiff and Respondent, v. JULIE R., Defendant and Appellant.

90 Cal.Rptr.2d 119

76 Cal.App.4th 134

AMERICAN NATIONAL PROPERTY AND CASUALTY CO., Plaintiff and Respondent, v. JULIE R., Defendant and Appellant.

No. B125033.

Court of Appeal, Second District, Division 4.

November 8, 1999.

Myers & Pollard, Michael D. Myers, Christine Pollard and Matthew L. Taylor, Claremont, for Defendant and Appellant.

Sylvester & Oppenheim, Sherman Oaks, and Richard J. Schlegel, Woodland Hills, for Plaintiff and Respondent.

KUHL, J.^*

Julie R. was raped by the uninsured driver of a car in which she was riding. She filed a claim against her uninsured motorist insurance policy, contending that her injuries from the assault arose out of the use of her assailant's vehicle. The insurance company filed a declaratory relief action, seeking a declaration that the policy did not cover Julie R. injuries. We agree with the trial court that the policy does not provide coverage because there is an insufficient causal link between Julie R. injuries from the assault and the assailant's use of his vehicle.

FACTUAL AND PROCEDURAL BACKGROUND

On July 22, 1995, Julie R. accompanied an acquaintance, Hooman Sebastian Aazami (Aazami), to the beach in Malibu. After about two hours they went to dinner at a restaurant in Hollywood. They departed the restaurant in Aazami's BMW, which he was driving. Aazami stopped the car along the side of the Interstate 5 Freeway near the Los Angeles River. Aazami parked the car against a chain link fence so that the passenger side door of the car could not be opened. Aazami got out of the car, stating that he needed to relieve himself.

When he returned to the car he began to make unwanted sexual advances toward Julie R. Julie R. resisted. She tried to open the door of the car, but it was locked. She tried to roll down the windows, but they were power windows and she could not find the control panel. She tried to kick the windshield, but she was not able to because the seat was pushed all the way back. Julie R. was secured in her seat by a seat belt. During the attack Aazami made the passenger seat recline. Aazami moved to the passenger side of the car and raped Julie R. After the attack, Aazami drove Julie R. home.

Julie R. made a claim for benefits under the uninsured motorist coverage of an automobile insurance policy issued by American National Property and Casualty Co. (ANPAC) to Julie R*.'s father. ANPAC filed a declaratory relief action, seeking a declaration that the uninsured motorist provisions of the policy did not cover the injuries Julie R. sustained in the attack by Aazami. It is conceded that Aazami was an uninsured motorist. The policy language in dispute provides: "We will pay damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an uninsured or an underinsured motor vehicle. The bodily injury must be caused by accident and result from the ownership, maintenance, or use of the vehicle."

At a court trial, Julie R. testified about the circumstances of the attack, and the insurance policy was admitted into evidence. The court held that when injuries are "caused by an act independent of and remote from the insured vehicle use, the requisite causal connection between the use and the injury is not established." The court found that Aazami and his assault "are the actions that are the substantial factors and predominating cause of the injuries at issue." Therefore the trial court found that the insurance policy "does not cover the incident at issue."

DISCUSSION

As the trial court noted in its decision, "[t]he facts involved in this matter are not in dispute." Therefore "we begin from the established rule that since the underlying facts are not in dispute `"it is the duty of the appellate court ... to make its own independent determination of the meaning of the language used in the instrument[] under consideration."'" (State Farm Mut. Auto. Ins. Co. v. Partridge (1973) 10 Cal.3d 94, 100, 109 Cal. Rptr. 811, 514 P.2d 123 (Partridge); see also Interinsurance Exchange v. Flores (1996) 45 Cal.App.4th 661, 668, 53 Cal. Rptr.2d 18.)

The issue of construction here is the meaning of the phrase "[t]he bodily injury must ... result from the ... use of the vehicle." Insurance companies are required by Insurance Code section 11580.2 to include uninsured motorist coverage in all automobile insurance policies absent a statutorily specified waiver. So long as an uninsured motorist policy grants benefits that are equal to or greater than the statutorily required benefits, "`[t]he rights of the parties are to be determined by the terms of their policy.. . .'" (Utah Property & Casualty Ins. etc. Assn. v. United Services Auto. Assn. (1991) 230 Cal.App.3d 1010, 1015, 281 Cal.Rptr. 917, citation omitted.)¹

Numerous California cases discuss the meaning of the phrase "arising out of the use" of a vehicle in the context of interpreting the coverage clause of an automobile insurance policy. Both sides rely on these authorities in their briefs and no party argues that the phrase "result from" should be interpreted any differently from the phrase "arising out of."

In the leading case interpreting the "arising out of language of an automobile insurance policy, the California Supreme Court observed that "California cases uniformly hold that the `use' of an automobile need not amount to a `proximate cause' of the accident for coverage to follow. [Citations.] Some minimal causal connection between the vehicle and an accident is, however, required. `Although the vehicle need not be, in the legal sense, a proximate cause of the injury, the events giving rise to the claim must arise out of, and be related to, its use.' [Citation.]" (Partridge, supra, 10 Cal.3d at p. 100, fn. 7, 109 Cal.Rptr. 811, 514 P.2d 123.)

Applying these principles, subsequent cases have found coverage where a vehicle is being used in a manner that reasonably could be contemplated by the insurer and injury occurs in the course of such use. (See United Services Automobile Assn. v. United States Fire Ins. Co. (1973) 36 Cal. App.3d 765, 770-771, 111 Cal.Rptr. 595.) For example, coverage has been found where the injury arises in the course of unloading or exiting from a vehicle (see, e.g., Cabral v. Los Angeles County Metropolitan Transportation Authority (1998) 66 Cal.App.4th 907, 78 Cal.Rptr.2d 385 [driver of vehicle injured exiting into path of bus]; National Indemnity Co. v. Farmers Home Mutual Ins. Co. (1979) 95 Cal. App.3d 102, 157 Cal.Rptr. 98 [child injured exiting vehicle into traffic]), and where a vehicle is being driven in such a way as to cause an item being transported in the vehicle to cause injury. (See, e.g., Partridge, supra, 10 Cal.3d at pp. 99, 101, 109 Cal.Rptr. 811, 514 P.2d 123 [driver was negligent in driving off the paved road and a gun in the car discharged; the driver's negligence was "a substantial, and indeed, a proximate cause of the accident"].)

However, where the role of the vehicle in the injury is merely as a situs for the act causing injury, courts have found that the injury does not arise from the use of the vehicle and that the injury is not covered. For example, coverage was denied for an injury caused when a gun inside a car at rest discharged because the bolt of the gun was pulled back. (Aetna Casualty & Surety Co. v. Safeco Ins. Co. (1980) 103 Cal.App.3d 694, 163 Cal.Rptr. 219 (Aetna).) Coverage also was denied for injury caused by the transmission of herpes during consensual sex on an insured boat on the ground that the use of the boat was merely incidental to the sexual activity. (Peters v. Firemen's Ins. Co. (1998) 67 Cal.App.4th 808, 79 Cal.Rptr.2d 326.)

In this case, the vehicle was at rest and served as the situs of the assault causing injury to Julie R. Julie R. argues, however, that the assailant "used" certain physical aspects of the vehicle to trap her and to consummate the assault.

Mere use of a vehicle in some way connected to the events giving rise to the injury is insufficient to establish coverage. If use alone established coverage, then coverage should have been found in cases where the vehicle merely was the situs of the injury. There must be a causal connection between the use of the vehicle and the injury.

The exact nature of the required causal connection expressly was left open in Partridge, supra. In Partridge, the California Supreme Court contrasted the decisions of Universal Underwriters Ins. Co. v. Aetna Ins. Co. (1967) 249 Cal.App.2d 144, 151, 57 Cal.Rptr. 240 and Truck Ins Exch. v. Webb (1967) 256 Cal.App.2d 140, 148, 63 Cal.Rptr. 791. (Partridge, supra, 10 Cal.3d at pp. 100-101, fn. 7, 109 Cal.Rptr. 811, 514 P.2d 123.) The Universal Underwriters decision interpreted "arising out of to "include any cause in fact rather than only legal or proximate cause." (Universal Underwriters Ins. Co. v. Aetna Ins. Co., supra, 249 Cal.App.2d at p. 151, 57 Cal.Rptr. 240, italics added.) Truck Ins. Exch., by contrast, required that use of the vehicle be a "`predominating cause' or a `substantial factor' in causing the injury." (Truck Ins. Exch. v. Webb, supra, 256 Cal.App.2d at p. 148, 63 Cal.Rptr. 791.)

Subsequent to Partridge, the predominating cause/substantial factor test was expressly adopted in Rowe v. Farmers Ins. Exchange (1992) 7 Cal.App.4th 964, 970-972, 9 Cal.Rptr.2d 314), and in Farmers Ins. Exchange v. Reed (1988) 200 Cal. App.3d 1230, 1233, 248 Cal.Rptr. 11. Aetna also relies on the analysis of Truck Ins. Exch. v. Webb. (Aetna, supra, 103 Cal. App.3d at p. 698, 163 Cal.Rptr. 219.) We adopt the predominating cause/substantial factor test as well. If "any cause in fact" connection between injury and use of a vehicle were sufficient, then the mere fact that a vehicle is the situs of acts causing injury, or that a vehicle is used for transportation to the scene of a crime, would establish coverage. Prior cases do not support this approach. As the court stated in Truck Ins. Exch. v. Webb: "The...