Roque v. Allstate Ins. Co.

• Decision Date: 19 January 2012
• Docket Number: No. 10CA2591.,10CA2591.
• Citation: 318 P.3d 1
• Parties: Chanson ROQUE and Shannon Isenhour, Plaintiffs–Appellants, v. ALLSTATE INSURANCE COMPANY, Defendant–Appellee.
• Court: Colorado Court of Appeals

318 P.3d 1

Chanson ROQUE and Shannon Isenhour, Plaintiffs–Appellants,

v.ALLSTATE INSURANCE COMPANY, Defendant–Appellee.

No. 10CA2591.

Colorado Court of Appeals, Div. III.

Jan. 19, 2012.

James J. Peters, Denver, Colorado, for Plaintiffs–Appellants.

Harris, Karstaedt, Jamison & Powers, P.C., A. Peter Gregory, Englewood, Colorado, for Defendant–Appellee.

Opinion by Judge WEBB.

¶ 1 This case addresses whether, in the context of a “road rage” incident, using a car to block a second car, before the driver exits the first car and assaults persons from the second car, constitutes use of a motor vehicle for the purposes of uninsured motorist (UM) insurance coverage. We conclude that exiting the car and then engaging in intentional misconduct breaks the requisite causal chain between use of the vehicle and the injuries. Therefore, we affirm the trial court's summary judgment for defendant, Allstate Insurance Company, and against plaintiffs, Chanson Roque and Shannon Isenhour.

I. Background

¶ 2 Plaintiffs, in Isenhour's car, and Richard Terlingen, in his car, exchanged verbal hostilities while driving next to each other. When plaintiffs turned into a McDonald's parking lot, Terlingen followed. He parked directly behind the plaintiffs' car, preventing their use of the car to leave. After all three of them exited their vehicles, Terlingen pulled a golf club from the trunk of his car and struck plaintiffs with it, causing injuries.

¶ 3 Terlingen held home, umbrella, and automobile insurance policies with American Family Mutual Insurance Company. American Family obtained a declaratory judgment in federal court that it was not required to cover Terlingen for the injuries that he had caused. The court ruled that the homeowners and umbrella policies expressly excluded coverage for injuries resulting from intentional or criminal acts, and that while the automobile policy covered Terlingen for third-party claims “due to the use of a car,” plaintiffs' injuries did not result from such use. Am. Family Mut. Ins. Co. v. Terlingen, 2008 WL 5156425 (D.Colo. No. CIV.08–CV–01273–REB, Dec. 9, 2008) (unpublished order).

¶ 4 Because this judgment rendered Terlingen an uninsured motorist, plaintiffs sought recovery for their injuries through the UM coverage in the Allstate policy covering Isenhour's vehicle. When Allstate denied coverage, plaintiffs brought this declaratory judgment action. The trial court granted Allstate's motion for summary judgment, holding that plaintiffs' injuries did not arise from the use of an automobile.

II. Standard of Review

¶ 5 We review de novo the trial court's summary judgment ruling. Brodeur v. Am. Home Assurance Co., 169 P.3d 139, 146 (Colo.2007). Summary judgment is appropriate only where the pleadings and supporting documents reveal no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. In re Tonko, 154 P.3d 397, 402 (Colo.2007). The nonmoving party is entitled to all favorable inferences reasonably drawn from the undisputed facts, and all doubts must be resolved against the moving party. Martini v. Smith, 42 P.3d 629, 632 (Colo.2002).

III. Analysis

¶ 6 Allstate's policy covers damages caused by the owner or operator of an uninsured vehicle “aris[ing] out of the ownership, maintenance, or use of an uninsured auto.” Plaintiffs argue that their injuries arose out of Terlingen's use of his vehicle because but for the road rage incident, the altercation would not have occurred, and by parking closely behind them to prevent them driving out of the parking lot, Terlingen used his vehicle to facilitate the assault. They do not assert that this clause is ambiguous.

A. Issue Preclusion

¶ 7 Preliminarily, we reject Allstate's contention that because the declaratory judgment in federal court determined that plaintiffs' injuries had not resulted from Terlingen's use of his vehicle, issue preclusion bars plaintiffs' claim. Although the trial court did not rule on this issue, Allstate raised it in the motion for summary judgment. We can affirm for any reason supported by the record, even reasons not decided by the trial court. Newflower Market, Inc. v. Cook, 229 P.3d 1058, 1061 (Colo.App.2010).

¶ 8 A decision precludes relitigation of a factual or legal issue in a subsequent proceeding when:

(1) the issue is identical to an issue actually litigated and necessarily adjudicated in the prior proceeding; (2) the party against whom [preclusion] was sought was a party to or was in privity with a party to the prior proceeding; (3) there was a final judgment on the merits in the prior proceeding; and (4) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issues in the prior proceeding.

Stanton v. Schultz, 222 P.3d 303, 307 (Colo.2010).

¶ 9 Here, the issue litigated in federal court was not identical to the issue before us. This case involves a policy providing first-party coverage mandated by Colorado's UM statute, section 10–4–609, C.R.S.2011. The federal court addressed a different insurer's policy providing third-party coverage. Such coverage does not fall under the UM statute.

B. Use of an Automobile

¶ 10 The supreme court most recently defined “use of an automobile” for purposes of UM coverage in State Farm Mutual Automobile Insurance Co. v. Kastner, 77 P.3d 1256 (Colo.2003). There, an assailant kidnapped the insured, drove her in her own car to a remote location, and sexually assaulted her in the vehicle. Id. at 1258. Her automobile insurer sought a declaratory judgment that its policy did not provide coverage for the injuries arising from the assault. Id. In ruling against the insured, the Kastner court articulated a two-prong test for determining when injuries arise from the use of a vehicle, applicable to both Personal Injury Protection and UM claims.

¶ 11 The first prong involves the use of the vehicle:

As a threshold matter ... the claimant must show that at the time of the “accident,” the vehicle was being “used” in a manner contemplated by the policy in question .... and inherent in the nature of the automobile [ ] as such.

.... [U]nless articulated otherwise in the policy, the only use of a non-commercial passenger vehicle that is foreseeable or conceivable at the time of contracting for insurance is use as a means of transportation.

Id. at 1261, 1262 (internal quotation marks, footnotes, and citations omitted).

¶ 12 The second prong, involving two parts, addresses the causal connection between the use and the injuries:

[T]he claimant must first show that except for the use of the vehicle, the accident or incident in question would never have taken place....

In addition, to complete and satisfy the causal analysis, the claimant must show that the “use” of the vehicle and the injury are directly related or inextricably linked so that no independent significant act or non-use of the vehicle interrupted the “but for” causal chain between the covered use of the vehicle and the injury.

Id. at 1264. This but-for and “independent significant act” test superseded a variety of tests for causation in earlier cases.¹

¶ 13 The Kastner court concluded that the assailant's uses of the vehicle—reclining the passenger seat so the insured could not signal for help, driving the car to an isolated area to commit the sexual assault, and restraining the insured with the car's automatic seat belts—were all “foreign to the inherent purpose of the motor vehicle as a mode of transportation.” Id. at 1265 (internal quotation marks and citations omitted). Although the car “served as the site” of the sexual assault and the assailant used the car's furnishings to facilitate the assault inside the car, “[t]hese uses [were] not foreseeably identifiable with the inherent purpose of a motor vehicle.” Id. at 1266.

¶ 14 The court also concluded that no causal connection existed between any covered use of the car and the insured's injuries. It explained that the reclining seat and seat belts “merely assist[ed] the assailant in a way that incidental objects or furnishings inside a house could have helped him without actually causing the assault.” Id. Nor did using the car to transport the insured to a remote location create the requisite causal connection because “using the car to drive the victim to a remote location no more connects the car to the assault than if the assailant had used the car as the mere situs of the assault without moving it.” Id.

¶ 15 Similarly here, Terlingen's use of his car does not satisfy either prong of the Kastner test. First, because Terlingen's car was a noncommercial passenger vehicle, the car's only identifiable foreseeable use was for transportation. While Terlingen used the car for transportation during the verbal exchange on the highway and to follow plaintiffs into the McDonald's lot, parking his car behind plaintiffs' car to block their driving away was not using the car for transportation and not another use contemplated by the policy.²

¶ 16 Second, Terlingen's assault with his golf club constituted an independent significant act or non-use of the vehicle interrupting the “but for” causal chain between any covered use of the vehicle and the injury. Under Kastner, using the car to drive to the site of the assault does not create the requisite causal connection. The golf club was more attenuated from the vehicle than the reclining seat and seatbelts characterized as non-uses of the vehicle in Kastner.

¶ 17 Plaintiffs' reliance on Cole v. United Services Automobile Association (USAA), 68 P.3d 513 (Colo.App.2002), is misplaced. There, a division of this court held that uninsured motorist coverage was available to an insured who had been assaulted in a road rage incident. The plaintiff was riding in a car when a second, uninsured car began to tailgate the plaintiff's car. Id. at 514. The driver of the plaintiff's car slowed down for the second car to pass, which it did, but then it “pulled back in front of [the ...