Stepping Outside of UM Coverage: Assaults by an Insured Outside a Vehicle

Recently, the Colorado Court of Appeals found that a road rage incident involving the use of a vehicle to block a second car in order to commit an assault of the occupants of the second car did not involve the use of the uninsured motor vehicle triggering uninsured motorist coverage.

In Roque v. Allstate Ins. Co., 2012 COA 10, 2012 WL 150079 (Colo. App. 2012), the drivers of two vehicles had a verbal altercation while driving next to each other.

When the plaintiffs’ vehicle turned into a McDonald’s parking lot, the second driver followed. The second driver, Richard Terlingen, parked directly behind the plaintiffs’ car which prevented plaintiffs from using their vehicle to leave the parking lot. The occupants got out of their cars. Terlingen pulled a golf club from the trunk of his car and struck the plaintiffs causing injuries.

At the time, Terlingen was insured with American Family Mutual Insurance Company. However, American Family obtained a declaratory judgment that it was not required to cover Terlingen for the injuries that he caused. The federal court in the declaratory judgment action ruled that American Family’s homeowner’s and umbrella policies expressly excluded injuries resulting from intentional or criminal acts and the automobile policy only covered Terlingen for third-party claims that arose out of the use of the insured vehicle. The Court found that the plaintiffs’ injuries did not result from vehicle use under the circumstances presented. The federal court’s ruling in the declaratory judgment action rendered Terlingen an uninsured motorist.

Because Terlingen was an uninsured motorist, plaintiffs presented a claim for recovery of their injuries through the UM insurance on the vehicle they were driving. Allstate insured the plaintiffs’ vehicle and declined coverage.

Under Colorado law, UM coverage applies where insureds are injured from the use of an uninsured motor vehicle. The state of Colorado uses a two-prong test for determining when injuries arise out of the use of a vehicle as set forth in State Farm Mutual Auto. Ins. Co. v. Kastner, 77 P.3d 1256 (Colo. 2003).

The first prong of this test addresses the vehicle use itself and requires that a claimant show that at the time of the accident, the vehicle was being used in a manner contemplated by the policy, i.e., arising out of the inherent nature of the automobile. Under the first prong of the analysis, unless the policy specifically provides otherwise, the only use of a non-commercial passenger vehicle that is foreseeable at the time of contracting for the insurance is the use of the vehicle as a means of transportation when the policy is a non-commercial policy.

The second prong of the test focuses upon the nature of the causal connection that must exist between the use and the injuries. Under the second prong of the test, the claimant must show that except for the use of the vehicle, the accident or incident in question would never have taken place. In order to establish the second prong of the test, the claimant must demonstrate that the use of the vehicle and the injury that resulted were 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.

The Court in Roque found that Terlingen’s use of his car did not satisfy either prong of the Kastner test.

Because Terlingen’s car was a non-commercial passenger vehicle it’s only identifiable or foreseeable use was for transportation. Although the Terlingen vehicle was used to transport Terlingen during the verbal exchange that occurred on the highway as the vehicles traveled side-by-side and continued when Terlingen followed the plaintiffs into the McDonald’s parking lot, at that point Terlingen parked his car behind plaintiffs’ car to block their driving away which the Court determined was not using the car for transportation or some other use contemplated by the policy.

Addressing the second prong of the Kastner test, the Court found that Terlingen’s assault with his golf club was an independently significant act or an act of non-use of the vehicle which interrupted the “but for” causal chain between a covered use of the vehicle and the resulting injury.

The Colorado Court of Appeal’s ruling in Roque placed Colorado into the main stream of those states that had found that the “act of leaving the vehicle and inflicting a battery is an event of independent significance that is too remote, incidental, or tenuous to support a causal connection with the use of the vehicle despite the fact that the vehicle was used to stop and trap another vehicle.” See, e.g., Laycock v. American Family Mut. Ins. Co., 289 Ill.App.3d 264, 224 Ill.Dec. 821, 682 N.E.2d 382, 385 (1997); Allstate Ins. Co. v. Skelton, 675 So.2d 377, 380 (Ala. 1996) (driver’s use of vehicle to force another driver into a vulnerable position was not covered because driver exited his car to carry out the assault); United Servs. Auto. Ass’n v. Ledger, 189 Cal.App.3d 779, 234 Cal.Rptr. 570, 570-71 (1987) (same); Hamidian v. State Farm Fire & Cas. Co., 251 Kan. 254, 833 P.2d 1007, 1013 (1992) (same); Cannon v. Maine Bonding & Cas. Co., 138 N.H. 365, 639 A.2d 270, 271 (1994) (same, expressly distinguishing cases where the assailant “brought [the] car to a stop and left it unattended” from those in which “the assailant shot the victim while driving or riding in a moving vehicle ” (emphases in original)); Mileski v. Ortman, 16 Ohio App.3d 217, 475 N.E.2d 166, 167 (1984) (same); Commercial Union Ins. Co. of New York v. Hall, 246 F.Supp. 64, 65 (E.D. S.C.1965) (applying South Carolina law) (using a vehicle block another’s escape before leaving a car to commit assault “is not the type of ‘use’ reasonably contemplated by the insurer and the insured”); Ulrich v. United Servs. Auto. Ass’n, 839 P.2d 942, 947, 949 (Wyo. 1992) (finding that where the assailant blocked the victim’s vehicle with his own vehicle before exiting and shooting the victim in the face were not injuries that occur “as a natural consequence of the use of [the assailant]’s uninsured motor vehicle, but rather occurred as a natural consequence of [the assailant]’s intentional use of a loaded firearm”); California Auto. Ins. Co. v. Hogan, 112 Cal.App.4th 1292, 5 Cal.Rptr.3d 761, 769 (2003) (use of the uninsured vehicle when used as a blocking devise, use of the uninsured vehicle was merely incidental to, and not a substantial factor in, causing the injuries of the insured).

The Court in Roque concluded its analysis by stating the following:

“Although the distinction between an assault perpetrated from within a vehicle, such as the drive-by shooting in Cung La [v. State Farm Auto. Ins. Co., 830 P.2d 1007 (Colo. 1992)], and one committed after opening the vehicle door and taking one step out seems slight, [t]he scope of coverage afforded by the type of insuring clause in question must end at some point.”