Bredemeier v. Farmers Ins. Exchange, 96CA0977

• Decision Date: 05 June 1997
• Docket Number: No. 96CA0977,96CA0977
• Parties: 21 Colorado Journal 789 Audrey BREDEMEIER, Plaintiff-Appellee, v. FARMERS INSURANCE EXCHANGE, Defendant-Appellant. . III
• Court: Colorado Court of Appeals

Page 616

950 P.2d 616

21 Colorado Journal 789

Audrey BREDEMEIER, Plaintiff-Appellee, v. FARMERS INSURANCE EXCHANGE, Defendant-Appellant.

No. 96CA0977.

Colorado Court of Appeals Div. III.

June 5, 1997.

Rehearing Denied July 10, 1997.

Certiorari Denied Feb. 2, 1998.

Bell & Pollock, P.C., Chad P. Hemmat, Littleton, for Plaintiff-Appellee.

Patterson & Nuss, P.C., Franklin D. Patterson, Englewood, for Defendant-Appellant.

Opinion by Judge JONES.

In this action to recover personal injury protection (PIP) benefits under an automobile insurance policy, defendant, Farmers Insurance Exchange (Farmers), appeals from a judgment in favor of plaintiff, Audrey Bredemeier, following a trial to the court. We reverse and remand the cause with directions.

While walking through a parking lot at night, plaintiff tripped and fell over a speed bump and was injured. She sought PIP benefits under a policy of insurance issued by Farmers for a vehicle owned by Richard and Joyce Larson. Plaintiff claims that her injuries arose out of the operation or use of the Larsons' vehicle because the position in which the car had been parked caused it to block the light from a fixture on a nearby building that otherwise would have illuminated the speed bump. It is undisputed that the specific purpose of the fixture was not simply to cast light on the speed bump but that, under ordinary circumstances, if the light was not blocked it would have incidently illuminated the speed bump.

The trial court made the following factual findings regarding the accident:

The Larson vehicle obstructed the light that otherwise illuminated the speed bump and ... a passenger in the Larson vehicle ... testified that he was very aware of the light illuminating the speed bump and witnessed the light being blocked from illuminating the speed bump after Mrs. Larson parked in the spot that she selected.

Because the trial court did not make any findings regarding whether the Larsons' vehicle was properly or negligently parked, we do not dwell on that issue.

It ultimately found "a sufficient nexus between the use of the motor vehicle being parked in that specific location and the reason that [plaintiff] fell" and awarded plaintiff PIP benefits under the Farmers policy.

The sole issue on appeal is whether, as Farmers contends, the trial court erred by finding as a matter of law that the accident arose out of the operation or use of the Larsons' vehicle. We agree with Farmers that the factual findings by the trial court do not support a conclusion that the accident arose out of the operation or use of the vehicle.

Although the Farmers policy is not included in the record on appeal, Farmers stipulated that it provided at least the minimum coverage required by the Colorado Auto Accident Reparations Act. Section 10-4-707(1)(c), C.R.S. (1996 Cum.Supp.) provides that coverage must be provided for "[a]ccidental bodily injury arising out of accidents occurring within this state ... while a pedestrian if injured in an accident involving the described motor vehicle." (emphasis added)

The parties do not dispute that plaintiff was a pedestrian; they dispute only whether the accident involved the Larsons' vehicle.

The supreme court has concluded that the general phrase "involving [a] motor vehicle" in § 10-4-707(1)(c) has the same meaning as the more specific phrase "arising out of the use or operation of a motor vehicle." Thus, in order for mandatory statutory coverage to apply, the plaintiff's accident must have arisen out of the use or operation of the Larson's vehicle. See Trinity Universal Insurance Co. v. Hall, 690 P.2d 227 (Colo.1984).

Whether an accident is caused by the use of a vehicle must be determined on a case-by-case basis. "An accident occurs 'on account of the use of a motor vehicle' if the injury ... [out of which] the ... claim [arose] is causally related to a conceivable use of the insured vehicle that is not foreign to its inherent purpose." Kohl v. Union Insurance Co., 731 P.2d 134, 135 (Colo.1986). To prove causation under such circumstances, a plaintiff need only show that the injury originated in, grew out of, or flowed from a use of a vehicle, not that the vehicle itself was the source of the injury. Thus, the vehicle need only be integrally related to the claimant's activities and the injury at the time of the accident. Aetna Casualty & Surety Co. v. McMichael, 906 P.2d 92 (Colo.1995).

"An injury arises out of the use of a vehicle within the provisions of an automobile insurance policy when a causal connection is reasonably apparent between the use to which the vehicle is being put and the resulting injury." G. Couch, Cyclopedia of Insurance Law § 45:56 (R. Anderson 2d ed.1981)(emphasis added).

For example, an injury occurring while unloading a truck is covered under the Act because the accident would not have occurred except for the unloading of the truck. Titan Construction Co. v. Nolf, 183 Colo. 188, 515 P.2d 1123 (1973) (injury received while unloading ready-mix concrete truck when hose connected to truck knocked brick off roof arose out of use of vehicle). Other examples include Trinity Universal Insurance Co. v. Hall, supra (coverage extended to plaintiff who was injured by a part of a truck that was being used to sell refreshments) and Aetna Casualty & Surety Co. v. McMichael, supra (truck with flashing warning lights being used as a barricade or warning device was "in use" when a plaintiff was struck by a car while working in front of the truck).

These cases are distinguishable from the case at hand, however, because they involved injuries arising out of activities in which the plaintiffs were engaged that employed vehicles within their inherent purposes, even though parked.

PIP benefits are not triggered simply because an injury takes place in or around a vehicle. The supreme court has stated:

[I]t is generally held that there must be a causal relation or connection between the injury and the use of the vehicle in order for the injury to come within the meaning of the phrase 'arising out of the use' of a vehicle.... Use, as contemplated by the automobile liability policy, means use of a vehicle as such, not a use foreign to its inherent purpose, to which the vehicle might conceivably be put.

Azar v. Employers Casualty Co., 178 Colo. 58, 61, 495 P.2d 554, 555 (1972)(original emphasis)(injury caused to passenger when shotgun discharged as driver pulled weapon back into car after preparing to shoot at rabbit from car window did not arise out of use of auto). See also Mason v. Celina Mutual Insurance Co., 161 Colo. 442, 423 P.2d 24 (1967) (death occurring from discharge of pistol while three youths were toying with the weapon in insured's vehicle did not arise out of a covered use of vehicle).

We find guidance for resolution of this case in State Automobile & Casualty Underwriters v. Beeson, 183 Colo. 284, 516 P.2d 623 (1973). There, a child was injured when keys to a second vehicle were thrown from a third story window, fell through an open window of a parked car, and struck the child who was sitting inside. The supreme court found that causal connection there between the injury and the use of either vehicle to be too weak to trigger insurance coverage for injuries arising out of the use of an automobile.

We find further guidance in certain cases of foreign...