Boyle v. Bristol W. Ins. Co.
| Decision Date | 02 July 2020 |
| Docket Number | Court of Appeals No. 19CA0660 |
| Citation | 480 P.3d 716 |
| Parties | Robert BOYLE, Plaintiff-Appellant, v. BRISTOL WEST INSURANCE COMPANY, Defendant-Appellee. |
| Court | Colorado Court of Appeals |
Killian Davis Richter & Mayle, P.C., Nicholas W. Mayle, Benjamin P. Meade, Joseph H. Azbell, Grand Junction, Colorado, for Plaintiff-Appellant
White and Steele, P.C., Joel N. Varnell, E. Catlynne Shadakofsky, Denver, Colorado, for Defendant-Appellee
Opinion by JUDGE TOW
¶ 1 Plaintiff, Robert Boyle, appeals the district court's summary judgment in favor of defendant, Bristol West Insurance Company (Bristol West). This appeal requires us to decide, apparently for the first time, whether a passenger in a motor vehicle involved in a road rage incident is "using" that vehicle for purposes of underinsured motorist coverage if he is injured after getting out of the vehicle to confront the driver of the other vehicle. Because we conclude that Boyle was not using the vehicle when he was struck by the other vehicle, we affirm.
¶ 2 This case comes to us after the district court resolved competing motions for summary judgment. As a result, we glean the following facts from the undisputed facts set forth in the parties' motions.
¶ 3 Boyle was a passenger in a Toyota insured by Bristol West. The Toyota and another vehicle, a Jeep, were involved in an incident of road rage, during which both vehicles were driven aggressively, cutting each other off and suddenly braking in front of each other. When the Toyota came to a red light, the Jeep stopped behind the Toyota. Boyle got out of the Toyota and approached the Jeep. As the driver of the Jeep made a U-turn, the Jeep struck Boyle and dragged him for some distance, causing Boyle severe injuries.
¶ 4 The Toyota owner's insurance policy included uninsured motorist coverage, and it insured any "person while occupying, maintaining or using [the owner's] covered auto ...." After settling for the respective policy limits with both his own insurer and with the insurer of the Jeep, Boyle sought underinsured motorist benefits from Bristol West.1 Bristol West denied his claim.
¶ 5 Boyle filed a complaint for declaratory judgment in district court. The parties filed cross-motions for summary judgment. The district court granted Bristol West's motion, ruling that, because Boyle was not "using" the Toyota when he was injured, he was not entitled to benefits from Bristol West.2 The district court denied Boyle's motion.
¶ 6 Boyle contends that the district court erred by granting Bristol West's motion for summary judgment because Boyle "used" the Toyota when he was injured.3 We disagree.
¶ 7 We review de novo an order granting a motion for summary judgment. Salas v. Grancare, Inc. , 22 P.3d 568, 571 (Colo. App. 2001). Summary judgment is appropriate only when the pleadings and supporting documents fail to establish a genuine issue of material fact and there is a clear showing that the moving party is entitled to summary judgment as a matter of law. Id.
¶ 8 In Colorado, automobile insurers must include coverage for injuries "arising out of the ownership, maintenance, or use of a motor vehicle" caused by uninsured motorists, unless such coverage is rejected in writing by the named insured. § 10-4-609(1)(a), C.R.S. 2019. As noted, the Bristol West policy on the Toyota included such coverage. Our supreme court has articulated a two-prong test for determining when injuries arise out of the use of a motor vehicle. State Farm Mut. Auto. Ins. Co. v. Kastner , 77 P.3d 1256, 1261-65 (Colo. 2003).
¶ 9 The first prong focuses on the "use" of a motor vehicle. Id. at 1261-63. The vehicle's use at the time the injuries were suffered must have been conceivable to the parties at the time of contracting and not foreign to the vehicle's inherent purpose. Id. at 1262. Some motor vehicles may have conceivable uses beyond mere transportation. Id. at 1262-63 ; see also Aetna Cas. & Sur. Co. v. McMichael , 906 P.2d 92, 94-103 (Colo. 1995) (); Trinity Universal Ins. Co. v. Hall , 690 P.2d 227, 231 n.4 (Colo. 1984) (); Titan Constr. Co. v. Nolf , 183 Colo. 188, 193-94, 515 P.2d 1123, 1125-26 (1973) (). However, with respect to noncommercial passenger vehicles, the only conceivable use that is not foreign to their inherent purpose is use as a means of transportation, unless an insurance policy provides otherwise. Kastner , 77 P.3d at 1262.
¶ 10 The second prong, which has two parts, concerns the "arising out of" component — i.e., the causal connection between the motor vehicle's use and the injuries suffered. Id. at 1263-65. First, the claimant must show that but for the use of the motor vehicle, the injuries would not have occurred. Id. at 1264. Second, the claimant must show that there was an unbroken causal chain between the use of the vehicle and the claimed injuries. Id. Thus, the use of the vehicle and the injuries must be directly related or inextricably linked such that no independent significant act or nonuse of the vehicle interrupted the "but for" causal chain between the vehicle's use and the injuries suffered. Id.
¶ 11 Relying on Cung La v. State Farm Automobile Insurance Co. , 830 P.2d 1007 (Colo. 1992), Boyle first contends that he was using the Toyota because he was targeted for the assault as a result of his connection with the vehicle. But Boyle misreads Cung La .
¶ 12 In Cung La , the victim was driving the insured vehicle when he was shot by a passenger in another car. Id. at 1008.4 The victim had been identified by his assailants because his vehicle, a white Mustang, had driven away from a recent altercation. Id. But our supreme court did not determine that the victim in Cung La was using his car because of his association with it. Rather, the court held that the victim was using the car because "the [victim] was driving and operating the vehicle in a manner not foreign to its inherent purpose."5 Id. at 1012. Our supreme court has since stated that the Cung La court "assumed that the assailants and the insured were ‘using’ their cars as contemplated by the insured's policy since the cars were moving at the time of the shooting." Kastner , 77 P.3d at 1265. Here, in contrast, the Toyota was not moving, nor was Boyle in the Toyota when he was injured. Therefore, Boyle's position was not analogous to that of the victim in Cung La .
¶ 13 Nor, as Boyle argues, was his situation similar situation to that of the assailants in Cung La. The assailants in Cung La used three vehicles to block the victim's car from driving away, thus facilitating the assault. Cung La , 830 P.2d at 1008. But here, there is no evidence to suggest that the Toyota was intentionally blocking the other vehicle from leaving the scene. Rather, the Toyota was stopped at a stop light. The fact that the other vehicle executed a U-turn to leave the area, injuring Boyle in the process, suggests that Boyle, not the Toyota, was blocking the other vehicle from leaving.
¶ 14 In any event, the fact that Cung La discussed whether the victim's shooting involved the use of the assailants' uninsured vehicle is inapposite to this case. There, the policy covered any injury "arising out of the operation, maintenance or use of an uninsured motor vehicle ." Id. (emphasis added). In contrast, under the terms of the Bristol West policy, Boyle (who did not own the vehicle) was only insured for injuries he suffered arising out of the use of "the covered auto." Thus, even if Boyle could be said to have been "using" the Jeep, he could not recover from Bristol West.
¶ 15 Boyle also argues that because he only stepped out of the Toyota briefly and remained within a few feet of it, he was still using the vehicle. But the key inquiry is not how long he was outside of the car or how far he strayed from it. Rather, the question is whether the activity he was engaged in was a cognizable use of the vehicle.
¶ 16 Boyle relies on cases that involve commercial vehicles to support his argument. See Mays v. Travelers Prop. Cas. Co. of Am. , No. Civ. A 04-D-486 CBS, 2005 WL 2406108 (D. Colo. Sept. 28, 2005) ; McMichael , 906 P.2d 92. But as previously stated, cognizable commercial vehicle "uses" are more expansive than those for noncommercial vehicles. Kastner , 77 P.3d at 1262-63. Nevertheless, even in determining whether a commercial vehicle was in "use" by the victim, "[t]hese cases did not turn on the proximity of the claimant to the vehicle at the time of the accident but, rather, the particular activity in which the claimant was engaged." McMichael , 906 P.2d at 102.
¶ 17 Nor do the cases cited by Boyle that involve noncommercial vehicles turn on proximity to the vehicle. In Government Employees Insurance Co. v. MFA Mutual Insurance Co. , 802 P.2d 1122 (Colo. App. 1990), the victim was injured after stepping out of the car to change a flat tire. Id. at 1124. A division of this court held that "the storage of a spare tire is a use within the inherent purpose of...
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