Kroeber v. Geico Ins. Co.

FILE
IN CLERK'S OFFICE This opinion was filed for rec;qd
SUPREME COURT, STATE OF WASHINGTON at6!'DOA-W\ on_jcvn9 · ~,'l,.."'ito
JAN 1 4 2016
B~w::i~~-:. ~
DATE
1{'
~):Ronald A. CEI~
Supreme Court Clark
IN THE SUPREME COURT OF THE STATE OF WASIDNGTON
CERTIFICATION FROM THE UNITED )
STATES DISTRICT COURT FOR ) No. 91846-5
THE WESTERN DISTRICT OF )
WASHINGTON )
)
IN ) EnBanc
)
HEIDI KROEBER a/k/a HEIDI LAZENBY, )
)
Plaintiff, )
)
v. )
)
GEICO INSURANCE COMPANY, )
)
Defendant. )
__________________________) Filed January 14, 2016
JOHNSON, J.- This case involves two certified questions from the United
States District Court for the Western District of Washington. First, we are asked to
determine for the purposes ofunderinsured motorist (UIM) coverage whether an
injury to an insured pedestrian "arose out of' the intentional firing of a gun from an
uninsured pickup truck. Second, we are asked whether it is material if the shooter
intended to harm anyone when firing the gun.
Kroeber v. GEICO Ins. Co., No. 91846-5
We answer the first question by holding that an injury "arises out of' vehicle
use so long as some causal connection is present between a condition of, an
attachment to, or some aspect of a vehicle and the resulting injury. The converse is
also true--·-an injury does not "arise out of' vehicle use under circumstances where
no such causal connection exists, making the vehicle the mere situs of the accident.
We answer the second question in the negative.
FACTS AND PROCEDURAL HISTORY
The United States District Court summarized the facts and procedural
history as follows:
On February 12, 2012, plaintiff[, Heidi Kroeber,] was shot
outside the Bad Monkey Bar in Kent, Washington by Matthew
Atkinson, who was driving an uninsured truck belonging to a friend at
the time he opened fire. Plaintiff and her boyfriend had antagonized
Atkinson earlier that evening. After pleading guilty to the crime of
·"Drive-By Shooting" l.mder RCW 9A.36.045(1 ), Atkinson claimed
that he had not intended to injure anyone with his shot[]; and later
claimed that he did not know that he was shooting where people were
standing. There are factual disputes concerning whether Atkinson's
truck was stopped or in motion at the time that he opened fire, and
whether he accelerated rapidly away from the scene after the shooting.
Doc. 38, at 2 (citations omitted).
PlaintifJ filed a claim with defendant, GEICO Insurance Company, to
recover damages under the UIM coverage provision of her own automobile
insurance policy. Under the relevant parts of this policy, GEICO is liable for
2
Kroeber v. GEJCO Ins. Co., No. 91846-5
damage·s an insured is legally entitled to recover from the owner or
operator of an underinsured motor vehicle due to:
1. Bl}di/y injury sustained by that insured and caused by an accident;
and
2.
The liability of the owner or operator for these damages must arise
· out ofthe ownership, maintenance or use of the underinsured
motor vehicle.
Doc. 14-7, at 17 (some emphasis added). GEICO denied plaintiffs claim, asserting
that her injuries did not arise out of the use of Atkinson's truck.
Plaintiff sued GEICO, claiming that she was entitled to UIM coverage under
her automobile insurance policy. The case was removed to the United States
District Court for the Weste1~n District of Washington, where the district court
made several findings. The district court found that the shooting constituted an
'·'"accident'" for the purposes of plaintiffs policy, that plaintiff's policy
unambiguously requires GEICO's liability to '"arise out of" the shooter's use of
the truck, and that the vehicle was '"in use"' at the time of the shooting as
contemplated by the insurance contract. Doc. 38, at 9. The district court then
certified questions to us, asking whether the shooter's intentional firing of his gun
out of his truck and the resulting injuries to plaintiff "arose out of' the use of the
]. mderinsured vehicle.
Rather than providing an answer specific to this case, we instead establish an
analysis to determine where an injury "arises out of' the ownership, maintenance,
3
Kroeber v. GEJCO Ins. Co., No. 91846-5
or use of a vehicle when the vehicle itself or a permanent attachment thereto is not
the instrument causing the injury.
CERTIFIED QUESTIONS
[1.] When a driver drives to a location, momentarily stops or slows
his vehicle, intentionally fires a gun, his bullet hits a pedestrian,
and the driver drives away immediately thereafter, does this
driver's liability to this pedestrian for the injuries he causes
"arise out of' the driver's use of his vehicle, for the purposes of
underinsured motorist insurance coverage?
[2.] Is it material whether or not he actually intended to harm
anyone?
Order Certifying Questions to Wash. Supreme Ct. at 2.
ANALYSIS
QUESTION 1
This court is authorized to accept certified questions from federal courts and
considers legal arguments based on the certified record the federal court provides.
RCW 2.60.020, :030(2). Certified questions from federal court are questions of law
this court reviews de novo. Queen Anne Park Homeowners Ass 'n v. State Farm
Fire & Cas. Co., 18.3 Wn.2d 485, 488:..89, 352 P.3d 790 (2015).
Although not focused on in the parties' briefs, a review of the statutory
foundation requiring certain coverage is helpful. In Washington, chapters 46.29
and 48.18 RCW, respectively, control motor vehicle financial responsibility and
insurance policy contracts. An insured owner's motor vehicle liability policy
4
Kroeber v. GEICO Ins. Co., No. 91846-5
"[s]hall insure the person ... against loss from the liability imposed by law for
damages arising out of the ownership, maintenance, or use of such vehicle." RCW
46.29 :490(2)(b) (emphasis added). Insurance contracts are required to contain
minimum pi·otectiorts depending on the particular kind of insurance. RCW
48.18.130(1). No insurance contract'can contain an inconsistent or contradictory
term to any mandated, standard provision unless it is more favorable to the insured.
RCW 48.18.130(2).
·. UIM coverage is regulated pursuant to RCW 48.22.030. An "underinsured
motor vehicle" is a motor vehicle that has no bond or insurance coverage for
bodily injury
.
or property damage at the time of an accident, or has coverage limits
' ~ ' '
that are less than the damages a victim is legally entitled to recover. RCW
48.22.030(1). "The purpose of this section is to protect innocent victims of
motorists: of underinsured motor vehicles.
.
Covered persons are entitled to coverage
'
without regard to whether an incident was intentionally caused." RCW
48.22.030(12).
Insurance contracts are considered as a whole and given a fair, reasonable,
and sensible C(mstruction-the same way an average person would when
purchasing insurance . Quadrant Corp. v. Am. States Ins. Co., 154 Wash. 2d 165, 171,
110 P.3d 733 (2005). This court views an insurance contract in its entirety, does
5
K7··oeber v. GEICO Ins. Co., No. 91846-5
not interpret a phrase in isolation, and gives effect to each provision. Moeller v.
Farmers Ins. Co. of Wash., 173 Wn.2d 264,271-72, 267 P.3d 998 (2011).
For the purposes ofUIM insurance contracts, Washington cases have not
provided a clear rule to determine where an injury "arises out of'' vehicle use. Our
case law has established, though, that some causal connection must exist between
the use of an automobile and the resulting injury. State Farm Mut. Auto. Ins. Co. v.
' Centennial Ins. Co., 14 Wash. App. 541, 543, 543 P.2d 645 (1975) ("The words
'arising out of the use' are unambiguous and require a degree of causality between
the injury and the use of the vehicle." (citing Handley v. Oakley, 10 Wash. 2d 396,
116 P.2d 833 (1941 ))).
The Court of Appeals curbed the reach of causation for UIM purposes by
finding that a causal connection need not extend so far as to include proximate
cause:
[The phrase "arising out of'' does not] force the interpretation that
before coverage can exist it must appear that the injury was the
proximate result of the use of the automobile. Such a construction
·would do equal violence to the normal meaning of those words. If
such were the intent ... , the words "caused by" or "resulted from"
would have been used.
Centennial, 14 Wash. App. at 543; Beckman v. Connolly, 79 Wash. App. 265, 274, 898
P.2d 357 (1995) ("[T]he 'use' need not be a 'proximate' cause of the occurrence or
injury."). Such instruction has proved unhelpful, so our court instead focuses on
6
Kroeber v. GEICO Ins. Co., No. 91846-5
developing a test for when an injury "arises out of' vehicle use.
Defendant GEICO offers no definitive answers for what an appropriate test
should be, only that ~'[t]he actual test applied in Washington is between 'but for'
causation and proximate causation." Resp. Br. at 37. Yet, GEICO does posit, "The
rule in Washington has long been that 'arising out or the use of a motor vehicle
means 'the vehicle itself or permanent attachments to the vehicle causally
J contributed in some way to produce the injury."' Resp. Br. at 1 (citing Mut. of
Enumclawlns. Co. v. Jerome, 122 Wash. 2d 157, 162, 856 P.2d 1095 (1993)) .
. . Altern~tively? plaintiff urges that a "but for" analysis sufficiently identifies if
a causq,l connection exists b~tween a vehicle's use and any resulting injury. Pl.'s
Opening Br. at 1 (GGNumerous Washington cases state that the test for causation in
' • ' ' I
an insurance policy is 'but for' causation." (citing Butzberger v. Foster, 151 Wash. 2d
396, 405, 89 P.3d 689 (2004); Transamerica Ins. Grp. v. United Pac. Ins. Co., 92
Wash. 2d 21, 26, 593 P.2dl56 (1979), overruled on other grounds by State v. Olson,
12? Wtl.2cl315,893 P.2d 629 (1995); Beckman, 79 Wash. App. at 265; Fiscus Motor
fireight, Inc. v. Universal Sec. Ins. Co., 53 Wash. App. 777, 770 P.2d 679 (1989))).
Yet, these cases do not explicitly stand for the idea that a "but for" determination is
. ~ ' . ~
mandated in our case law.
• ~ ' I '• • : '• j• ~ ' •
Washington cases
'
have 11;either explicitly embraced nor rejected the "but for" .
7
Kroeber v. GEICO Ins. Co., No. 91846-5
analysis. plaintiffproposes.
~ : ' '
Beckman, though, did express a somewhat similar
approach:
I.t follows that the accident would not have happened as it did but for
the tiseofthe vehicle; that Beckman's injuries originated from, had
their origin with, grew out of, or flowed from her use of the truck; that
the truck causally "contributed in some fashion toward producing the
injury"; and that the truck was "more than a coincidental place at
which the injury occurred."
~· Beckman, 79 Wash. App. at 274 (emphasis added).
What Washington cases have established is that for an injury to "arise out
of'' vehicle use, the vehicle itself or an attachment to it does not need to be the
direct Cause of the injury. Rather, the facts must establish that "the accident
· involved some causal relationship between a condition of the vehicle, a permanent
attach~ent thereto, or so~me aspect of its operation." Transamerica, 92 Wash. 2d at
27.
Though the facts are dissimilar from the case before us, the analysis
employed in Detweiler v. J,C. Penney Cas. Ins. Co., 110 Wash. 2d 99, 751 P.2d 282
(1988), is helpful here. In Detweiler, we held that injuries arose out of vehicle use
when a. drinking buddy .drove off in the claimant's
. pickup truck and the claimant
jumped onto the bed of the truck, was later thrown off the truck, pulled out his .357
Magnum pistol, fired six shots at ~he tire ofthe truck from roughly 10 feet away,
and was injured in the neck, face, and eyes by ricocheting bullet fragments.
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Kroeber v. GEICO Ins. Co., No. 91846-5
Detweiler, 110 \Vn.2d a~ 101, 109. Finding such a causal connection between
vehicle use and a gunshot injury is not unique to Washington .
. In a case that is factually akin to ours, the Oregon Court of Appeals reached
a similar result as Detweiler. In.De Zafra v. Farmers Ins. Co., 270 Or. App. 77,
346 P.3d 652 (2015), 1 the court held. that, for the protection of the insurance-
buying public, the phrase "arise out of'' is to be liberally construed when detecting
' the presence of a causal connection. De Zafra, 270 Or. App. at 80. The court
specified that the phrase ''arise out of'' is "repeatedly described as 'broader' than
the phrase 'caused by' the use of a vehicle." De Zafra, 270 Or. App. at 84. The
court also noted that if the Oregon Legislature intended to limit the scope of
coverage, '"it does not lack the linguistic tools necessary to achieve that
outcome.'" De Zafra,, 270 Or. App. at 85 (quoting Carrigan v. State Farm Mut.
Auto. Ins. Co., 326 Or. 97, 103, 949 P.2d 705 (1997)). We agree with this result.
Like Oregon, Washington insurance statutes are to be liberally construed for
the benefit of the public. "The purpose of [Washington UIM coverage] is to protect
innocent victims of motorists ofunderinsured motor vehicles." RCW
48.22.030(12). Support for liberally construing UIM coverage for the protection of
the public c~n be found in several Washington cases. See Touchette v. Nw. Mut.
1
We recognize this is an intermediate court opinion, yet. we find the De Zafra interpretation
of the Oregon uninsured motorist statute persuasive.
9
Kroeber v. GEICO Ins. Co., No. 91846~5
Ins. Co., 80 ·wn.2d 327, 333-35, 494 P.2d 479 (1972); Rau v. Liberty Mut. Ins. Co.,
21 Wash. App. 326, 328, 585 P2d 157 (1978) ("The provisions ofthe uninsured
motorist E?tatute are.to be liberally construed to the end that innocent victims will
be protected from irresponsible drivers." (citing former RCW 48.22.030 (1967)));
Signal Ins. ·co. v. Walden, 10 Wash. App. 350, 353, 517 P.2d 611 (1973).
In other situations, we have held that no causal connection exists where it is
"J'? established that the vehicle serves as the "mere situs" of the accident. Jerome, 122
Wash. 2d at 163 ('"The fact that a vehicle is the mere situs of an accident, however, is
not sufficient to establish the required causal connection."); Culp v. Allstate Ins.
Co., 81 Wash. App. 664, 668, 915 P .2d 1166 (1996) ("[T]he fact that the vehicle is
the 'mere situs' of the accident is not enough to establish the required causal
connection."); Centennial, 14 Wash. App. at 543 ("[T]he vehicle must contribute in
some fashion toward producing the injury; the vehicle must be more than the
coincidental place in which the injury occurred.").
. . Determining
.
whether a vehicle is 'the' mere situs of an accident is a factual
deter~inati?n to be made by the trial court. To assist in such a determination, this
court added clarification when holding that an automobile is more than the mere
situs of an accident if some causal connection does in fact exist between the use of
the vehicle .and the injury. In such circumstances, liability attaches to the insurer
10
Kroeber v. GEICO Ins. Co., No. 91846-5
4
'uncler an insurance contract providing for coverage of an accident arising out of
use of the automobile.'' Transamerica, 92 Wash. 2d at 27 (citing Fid. & Cas. Co. v.
Lott, 273 F.2d 500 (5th Cir. 1960)).2
Thus, the rule our cases have established is that some causal connection
exists \vhen the events leading up to an injury involve vehicle use, unless the
vehicle is merely the coincidental location of the accident.
QUESTION]
With regard to question two, we next look to whether the driver/shooter's
intent to fire the gun is legally significant for triggering UIM coverage. The
shooter's intent informs the "accident" prong ofUIM coverage. Here, Kroeber
asserts--and GEICO concedes~-that the injury was caused by an "accident" as
contemplated by both the automobile insurance policy and the statutory definition.
As such, the shooter's intent does not affect whether the injury "arose out of' the
use of the automobile. Because both parties agree that the injury resulted from an
accident, we answer the second question in the negative.
2
In Lott, a mimed insured attempted to shoot a deer by resting his rifle across the roof of a
parked automobile and fired. The muzzle failed to clear the curve of the roof, and the bullet
deflected and killed a passenger inside the vehicle. The court held that a causal connection existed
and the accident arose out ofthe use ofthe vehicle. Lott, 273 F.2d at 501-02.
11
K!·oeber v. GEJCO Ins. Co., No. 91846-5
CONCLUSION
w·e answer the first question as such: An injury "arises out of' vehicle use if
some causal connection exists between a condition of, an attachment to, or some
aspect of the vehicle's use and the resulting injury. Conversely, an injury does not
"arise out of? vehicle use when the vehicle is merely the situs of the accident.
\Ve answer the second question in the negative. Because both parties agree
A that the injury was caused by "an accident," it is not material whether the shooter
intended to injlire the plaintiff or any other person. Such a fact does not help assess
12
Kroeber v. GEICO Ins. Co., No. 91846-5
whether an injury "arose out of' the use of an underinsured automobile.
WJ-2 CONCUR:
J?ta~JlfJ----
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S~-<5i2
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