Ruiz v. Farmers Ins. Co. of Arizona

Decision Date08 September 1992
Docket NumberCA-CV,No. 1,1
Citation174 Ariz. 66,847 P.2d 111
PartiesAngela RUIZ, Plaintiff-Appellant, v. FARMERS INSURANCE COMPANY OF ARIZONA, an Arizona corporation; Farmers Insurance Group; Continental Casualty Company; CNA Group, Defendants-Appellees. 91-0255.
CourtArizona Court of Appeals

Solomon, Relihan & Blake, P.C. by H. Micheal Wright, Mesa, for appellant.

Broening Oberg & Woods by James R. Broening and Neal B. Thomas, Phoenix, for appellee Farmers Ins. Co.

Gallagher & Kennedy, P.A. by E. Calvin Fuchs and Kevin O'Malley, Phoenix, for appellee Continental Cas. Co.

OPINION

EHRLICH, Judge.

Angela Ruiz ("Ruiz") appeals from the grant of summary judgment determining that Farmers Insurance Company of Arizona and Continental Casualty Company ("insurance companies") were not liable for her injuries. For the following reasons, we reverse the judgment and remand the case to the trial court.

A. FACTS AND PROCEDURAL HISTORY

On June 2, 1989, Ruiz was a passenger in a car owned by William Ihrig. 1 A Dodge vehicle approached Ihrig's car from the rear as both vehicles were traveling along a Phoenix street; the driver of the Dodge began to pursue Ihrig's car. One of the passengers in the Dodge fired several shotgun blasts at the Ihrig car. The driver of the Dodge then maneuvered his vehicle alongside Ihrig's car and the gunman/passenger fired a shotgun blast into the window of Ihrig's car. The blast struck Ruiz on the side of her head.

The Dodge was uninsured at the time of the shooting. Ruiz was insured under a motor vehicle insurance policy issued by Farmers Insurance Company to Ihrig because she was a passenger in his vehicle. Ruiz also was an insured under a motor vehicle insurance policy issued by Continental Casualty Company to her parents, which provided excess coverage over the primary coverage of the Farmers policy. Both of the policies had uninsured motorist coverage, providing payment for bodily injuries caused by uninsured motorists arising out of the "ownership, maintenance or use" of the uninsured motor vehicle.

Ruiz sought a determination that she is entitled to coverage for uninsured motorist benefits under both insurance policies. The insurance companies moved for summary judgment on the basis that, as a matter of law, Ruiz' injuries did not arise out of the ownership, maintenance or use of an uninsured vehicle. Farmers additionally argued that uninsured motorist benefits are not available for injuries arising out of intentional acts. The trial court granted summary judgment for the insurance companies and Ruiz timely appealed.

B. ISSUE OF INJURY ARISING OUT OF THE OPERATION, MAINTENANCE OR USE OF VEHICLE

The first issue on appeal is whether an injury arises out of the operation, maintenance or use of an uninsured vehicle when the vehicle itself is not the proximate cause of the injury, but the injury would not have taken place without the use of the vehicle in the incident. Ruiz argues that Arizona should follow the "trend" of finding uninsured motorist coverage in such situations. The insurance companies respond that, under both Arizona law and the law of other jurisdictions, insurance liability has been rejected in cases when there is merely a slight causal connection between the injury and the vehicle.

No Arizona case is dispositive. However, Arizona courts on several occasions have considered the general issue of when an injury arises out of the ownership, maintenance or use of a vehicle: Mazon v. Farmers Insurance Exchange, 107 Ariz. 601, 491 P.2d 455 (1971); Morari v. Atlantic Mutual Fire Insurance Co., 105 Ariz. 537, 468 P.2d 564 (1970); Love v. Farmers Insurance Group, 121 Ariz. 71, 588 P.2d 364 (App.1978); Vanguard Insurance Co. v. Cantrell, 18 Ariz.App. 486, 503 P.2d 962 (1972); Brenner v. Aetna Insurance Co., 8 Ariz.App. 272, 445 P.2d 474 (1968).

The court in Brenner specifically addressed the type of relationship that must exist for an injury to arise out of the ownership, maintenance or use of a vehicle. 8 Ariz.App. at 275-76, 445 P.2d at 477-78. In that case, a gun being handled by one passenger in a vehicle accidentally discharged and injured another passenger. The gun was not in contact with any part of the vehicle and no motion of the vehicle caused the gun to fire. The court observed that the phrase "arising out of" "imports a concept of causation" and quoted the following language from "a pertinent annotation":

"All the cases agree that a causal relation or connection must exist between an accident or injury and the ownership, maintenance, or use of a vehicle in order for the accident or injury to come within the meaning of the clause 'arising out of the ownership, maintenance, or use' of a vehicle, and where such causal connection or relation is absent coverage will be denied." ["Automobile liability insurance,"] 89 A.L.R.2d [150,] 153 [ (1963) ].

Id. at 275, 445 P.2d at 477.

In finding that there was no causal connection between the injury and the vehicle, the court emphasized that the injury could have occurred anywhere and that it was solely the result of the use of the gun, not the use of the car. Id. at 277, 445 P.2d at 479. However, the court recognized that, based upon the facts of a case such as McDonald v. Great American Insurance Co., 224 F.Supp. 369 (D.R.I.1963), "[a court] might possibly look upon the throwing of a lighted explosive from a moving car into the vicinity of others as an act in some way connected with the use of the car." Brenner, 8 Ariz.App. at 277, 445 P.2d at 479.

In Morari, the owner of a truck was driving along a road, hunting with friends, when a deer was seen. The driver stopped the truck, stepped outside and reached behind the seat to get his gun. The moment he picked up the gun, it discharged, injuring the leg of a companion. The court distinguished Brenner, saying:

We think it obvious that [in Brenner ] there was no connection between the toying with the gun, the negligent act, and the use of the motor vehicle. That is not the case here. The rifle was part of the cargo of [the driver's] truck. The truck was being used for hunting and the transportation of the hunters and their rifles. The carriage of the rifles was part of the use of the truck in hunting.

Id. 105 Ariz. at 540, 468 P.2d at 567.

The supreme court later applied the causality standard of Brenner to an injury occurring while two vehicles were traveling along the road. In Mazon, a person was injured while driving his vehicle when a stone thrown by a person in an unidentified car struck him in the eye. In concluding that the injury was not covered by insurance on the vehicle, the court stated that, "we can find no causal relationship between an injury resulting from a stone thrown by an unknown person from an unidentifiable vehicle, and the ownership, maintenance or use of that vehicle." 107 Ariz. at 603, 491 P.2d at 457.

Emphasizing the causal nexus which the courts in Brenner and Mazon found necessary to establish whether an injury arose out of the use of a vehicle, the court in Cantrell considered insurance liability when a gunman drives up to a drive-in window, demands money from the person working at the store and then shoots the person as he drives away. The court found that the injury did not arise out of the operation, maintenance or use of the vehicle because the vehicle merely was the situs of the incident. 18 Ariz.App. at 488, 503 P.2d at 964.

Based upon similar logic, the court in Love found that a murder did not arise out of the operation, maintenance or use of a vehicle when the murder occurred after two assailants abducted the car's owner and then beat him to death with a candelabrum which was inside the car. The court reasoned that the only connection between the car and the death was that while the car was the situs of the incident, "[t]he attack could have occurred outside the car as easily as inside the car." 121 Ariz. at 74, 588 P.2d at 367.

While the Arizona cases provide that there must be some degree of causal connection between the injury and the ownership, maintenance or use of the vehicle in order to establish insurance coverage, there has been no clear demarcation of that line. Certainly none of these cases involved as particular a use of the vehicle as in the present situation. Accordingly, we examine what courts in other jurisdictions have said upon considering situations virtually identical to the one before us and find that they have reached differing conclusions with regard to insurance liability.

In Continental Western Insurance Co. v. Klug, 415 N.W.2d 876, 878 (Minn.1987), the supreme court employed a three-step analysis in concluding that a gunshot injury during a vehicular chase arose out of the gunman's use of the vehicle. The court's first consideration was the extent of causation between the automobile and the injury; the vehicle must be an "active accessory" in causing the injury, constituting " 'something less than proximate cause in the tort sense and something more than the vehicle being the mere situs of the injury.' " Id. (quoting Tlougan v. Auto-Owners Insurance Co., 310 N.W.2d 116, 117 (Minn.1981)). The second factor weighed by the court was whether an act of independent significance had occurred, thereby breaking the causal link between the "use" of the vehicle and the injuries inflicted. Id. The third component the court analyzed was the type of vehicle use involved, stating that "coverage should exist only for injuries resulting from use of an automobile for transportation purposes." Id.

The court in Klug found each of the three factors to be present and therefore concluded that the injury arose out of the use of the gunman's vehicle. Id. at 878-79. In finding the requisite degree of causation, the court observed that the gunman's "car was an 'active accessory' to the assault" because the gunman had used his car to keep up...

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