State Farm Mut. Auto. Ins. Co. v. Fisher

• Decision Date: 14 June 2010
• Docket Number: No. 09-1415.,09-1415.
• Citation: 609 F.3d 1051
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff-Appellee,v.Barbara FISHER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

609 F.3d 1051

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff-Appellee,v.Barbara FISHER, Defendant-Appellant.

No. 09-1415.

United States Court of Appeals Tenth Circuit.

June 14, 2010.

Steven T. Nolan (Joseph R. Winston, Winston Law Firm, Colorado Springs, Colorado with him on the briefs), Steven T. Nolan, P.C.; Colorado Springs, CO, for the Defendant-Appellant.

Marc Levy (Scot C. Kreider with him on the briefs), Levy, Morse & Wheeler, P.C.; Englewood, CO, for the Plaintiff-Appellee.

Before BRISCOE, Chief Judge, HOLLOWAY and HENRY, Circuit Judges.

HENRY, Circuit Judge.

CERTIFICATION OF A QUESTION OF STATE LAW

This case involves the reach of Colorado's uninsured motorist coverage (“UIM”). See Colo.Rev.Stat. § 10-4-609. The uninsured motorist provision of Mr Fisher's automobile insurance policy provides:

We will pay compensatory damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be:

1. sustained by an insured; and

2. caused by an accident that involves the operation, maintenance, or use of an uninsured motor vehicle as a motor vehicle.

Aplt's App. vol. I, at 345 (emphases omitted). This provision is based upon the Colorado Uninsured Motorist Act, which requires insurers to provide coverage against uninsured motorists for injuries “arising out of the ownership, maintenance, or use of a motor vehicle” unless rejected in writing by the insured. Col.Rev.Stat. § 10-4-609(1)(a).

The United States Court of Appeals for the Tenth Circuit, pursuant to 10th Cir. R. 27.1 and Colo.App. R. 21.1, desires to submit to the Colorado Supreme Court a request that the Colorado Supreme Court exercise its discretion to accept the following important certified questions of Colorado law, which may be determinative of this case now pending in this court, and as to which there appears to be no controlling precedent.

Where the definition of “use” is ambiguous in the policy contract, because it is susceptible of more than one construction, one providing coverage and the other limiting coverage; and a reasonably prudent person might understand the term to provide coverage; and when an assailant driving an uninsured motor vehicle (a) chases person covered by an automobile insurance policy, who is also driving a moving vehicle; (b) rams the covered person's vehicle with the uninsured vehicle; (c) fires a shotgun into the covered person's vehicle, injuring two passengers; and (d) emerges from his vehicle and assaults the covered person (who has also emerged from his vehicle):

1. Is the injury resulting from the assault on the covered person an “accident arising out of the ... use of” an uninsured vehicle under State Farm v. Kastner, 77 P.3d 1256 (Colo.2003)?

If the injury is an accident arising out of the use of the uninsured vehicle, then:

2. Do the covered person's injuries satisfy the “causal nexus” prong of Kastner, 77 P.3d at 1258, which includes inextricably linked events that “flow from” the covered use? See id. at 1258, 1264 (citation omitted).

We encourage the Colorado Supreme Court to reformulate the questions as it sees fit.

I. BACKGROUND

The facts are uncontroverted. On Nov. 5, 2007, Mr. Fisher drove his three friends (Caleb Moore, Jeremy Vialpondo, and Robert Ellsworth) in his 1991 Ford Explorer to the home of Tiffany Howard, who had telephoned and asked for a ride. Ms. Howard was concerned because her ex-boyfriend, Andrew Brown, was apparently watching her house. After Mr. Fisher picked up Ms. Howard, Mr. Brown followed them, driving his uninsured Chevrolet Suburban and chasing them for at least two miles. During the course of the chase, Mr. Brown rammed his Suburban into Mr. Fisher's vehicle several times. He then pulled alongside the car, brandished and fired a shotgun into the car, injuring passenger Mr. Vialpondo. Flying glass also injured passenger Mr. Moore. Mr. Fisher pulled over, and exited the car, evidently trying to get assistance from passing motorists. Mr. Brown had driven past Mr. Fisher's car after the shooting. He turned his Suburban around, stopped, and got out of the car. Thirty-nine seconds after having shot Mr. Vialpondo, Mr. Brown shot and killed Mr. Fisher and then himself.

Barbara Fisher, Mr. Fisher's mother, acting on behalf of his estate, submitted a claim for uninsured motorist benefits arising out of the wrongful death of Mr. Fisher as a result of Mr. Brown's conduct. Mr. Vialpondo and Mr. Moore also submitted claims to State Farm, seeking payment of uninsured motorist benefits for the injuries alleged to have been sustained as a result of Mr. Brown's conduct. State Farm filed an action for declaratory judgment and sought summary judgment against Ms. Fisher and the passengers, arguing it had “no duty to compensate [d]efendants under the uninsured/underinsured motorist policies issued to Michael and Barbara Fisher, on the basis that the [d]efendants' injuries were not caused by an accident that involves the operation, maintenance, or use of an uninsured motor vehicle as a motor vehicle.” Rec. vol. I, at 27 (Complaint, filed Aug. 8, 2008) (internal quotation marks omitted). The district court denied State Farm's motion for summary judgment with respect to passengers Mr. Vialpondo and Mr. Moore, finding that there was use (transportation) and that a jury should decide whether Mr. “Brown's driving and shooting were sufficiently linked so as not to break the causal chain between use of the car for its ordinary intended purposes and [the passengers'] injuries.” Aplt's App. vol. III, at 1293. ¹

State Farm also sought summary judgment with respect to Ms. Fisher, who was proceeding on behalf of her deceased son. The district court concluded that “[w]ith regard to Michael Fisher's injuries, [Mr.] Brown used his vehicle merely [as] a method of transport to the situs of the accident, not as an active accessory to his actions in causing those injuries.” Id. at 1294. In turn, “[t]he critical causal link between use of the vehicle and the injury as to which recovery is sought was thereby severed.” Id.

We are asked to determine whether or not a jury should decide if the uninsured motorist provision covers Ms. Fisher's claim under Colorado law.

II. DISCUSSION

The breadth of uninsured motorist coverage is the subject of much litigation. Colorado's public policy clearly favors the “widespread availability of protection to persons against financial losses caused by financially irresponsible motorists.” Apodaca v. Allstate Ins. Co., 232 P.3d 253, 259(Colo.Ct.App. 2009); see State Farm Mut. Auto. Ins. Co. v. Nissen, 851 P.2d 165, 169 (Colo.1993) (considering UIM provision and noting that “[t]he legislative directive instructs us to find coverage for the innocent insureds whenever possible”). Undoubtedly, “Colorado cases recognize a strong public policy of compensating claimants to the full extent of UM/UIM coverage.” Colo. Ins. Guar. Ass'n v. Menor, 166 P.3d 205, 217 (Colo.Ct.App.2007) (Webb, J., concurring in part and dissenting in part) (citing State Farm Mut. Auto. Ins. Co. v. Brekke, 105 P.3d 177, 185 (Colo.2004); DeHerrera v. Sentry Ins. Co., 30 P.3d 167, 174 (Colo.2001); Huizar v. Allstate Ins. Co., 952 P.2d 342, 345 (Colo.1998)).

Specifically, the Colorado Supreme Court has explained:

The effect of the statute to replace an uninsured or underinsured tortfeasor's automobile liability limits with an innocent injured insured's UM/UIM coverage furthers the public policy declared by the legislature when it first enacted the statute.... By providing an insured the opportunity to protect against loss, up to policy limits, resulting from the negligent conduct of financially irresponsible motorists, the UM/UIM statute permits an insured “to receive the benefits thereof to the extent necessary for full compensation for loss” sustained by the insured.

DeHerrera, 30 P.3d at 174 (quoting Kral v. Am. Hardware Mut. Ins. Co., 784 P.2d 759, 765 (Colo.1989) (citing Peterman v. State Farm Mut. Auto. Ins. Co., 961 P.2d 487, 492 (Colo.1998) (“The purpose of the UM statute is to ensure that individuals injured in an accident will be compensated for their losses even if the other motorist is uninsured.”))).

Nevertheless, the scope of UIM coverage is not unlimited. In Kastner, the Colorado Supreme Court identified a two-part inquiry that courts must apply in determining whether an accident “arise[s] out of the use or operation of a motor vehicle” such that an uninsured motorist provision offers coverage. 77 P.3d at 1260, 1261-65.

A. The Kastner Inquiry

In Kastner, the court first considered “whether [the claimant] was using an insured vehicle in a manner not foreign to its inherent purpose at the time of the accident.” 77 P.3d at 1262 (quoting Aetna Cas. & Sur. Co. v. McMichael, 906 P.2d 92, 103 (Colo.1995) (alteration in original)). Second, the court considered the causal connection between the use and injury. Id. at 1263. Although the claimant need not show proximate causation, he or she must “show something more than a mere ‘but for’ relation between the use of the vehicle and the injury” as well as “an unbroken causal chain between that use and the injury.” Id. at 1263, 1264.

In Kastner, the defendant, Ms. Kastner, was about to get into her vehicle, parked in a shopping center parking lot, when a man came up to her and asked for directions. As she was answering his inquiry, he brandished a knife and ordered her in the car. She was forced into the front passenger seat of the car, and ordered to put the seat back and as far as possible. The man then entered the driver's side of the car and drove her car from the lot.

He drove to a wooded lot, robbed her of $150, placed the knife blade on her throat, and sexually assaulted her. Though Ms. Kastner attempted to escape, the automatic seatbelts restrained her. After the assault, Ms. Kastner reported the crime immediately.

Ms. Kastner sought coverage from her automobile insurer for her...