Carrigan v. State Farm Mutual Automobile Insurance , 326 Or. 97 ( 1997 )

CARSON, C. J.,

dissenting.

Because I cannot agree that plaintiff’s injury resulted from the use of a motor vehicle, I respectfully dissent.

The majority concludes that, under ORS 742.520(2), PIP coverage is not limited to injuries caused in an automobile accident. I agree. The majority also notes that the carjacking in this case commenced while plaintiff was using his vehicle. That is true, as well. It does not follow, however, that plaintiffs injury resulted from the use of his vehicle. Neither plaintiff nor Henderson was in the vehicle when Henderson shot plaintiff. More importantly, neither plaintiff nor Henderson was using the vehicle, as that term ordinarily would be understood, when plaintiff was shot.

The majority’s analysis is flawed in that it essentially treats any injury that might follow a caijacking as an injury that results from the use of a motor vehicle. As demonstrated by this case, that approach, in effect, fashions a rule whereby the availability of PIP benefits to an insured is dependent upon the mental state of the criminal perpetrator. Apparently, under the majority’s rule, if the injury-causing perpetrator has the intent to steal (to “use”) the insured’s vehicle, any subsequent injury to the insured is within PIP coverage. Presumably, if the perpetrator had an intent other than theft of the insured’s vehicle (theft of equipment or robbery of the insured, for example), in the circumstances of this case, no coverage would exist. Reliance upon the intent of the perpetrator introduces a completely alien element into vehicle insurance coverage. In my view, this case perfectly illustrates the principle of post hoc ergo propter hoc\ If the injury here indeed resulted from the use of a motor vehicle, what other future injury in such a context would not?

Under the facts of this case, the nexus between plaintiffs injury and the use of his vehicle simply is too attenuated to support the conclusion that plaintiffs injury resulted from the use of a motor vehicle under ORS 742.520(2). Accordingly, I would affirm the decision of the Court of Appeals.

Gillette, J., and Graber, J., join in this dissenting opinion.