Automobile Insurance Coverage ("Arising out of use of motor vehicle")
Concord Mutual General Insurance Company v. Jane Doe, et al
(Decided October 27, 2010)
Facts: The plaintiff, “Jane Doe”, a student in the Gilford School System, was sexually assaulted on several occasions by her teacher and drama instructor, Matthew McGonagle. Some of the assaults occurred in McGonagle’s vehicle, either while he was driving or while the vehicle was parked with the engine running. Doe suffered physical discomfort and emotional trauma resulting in psychiatric and psychological injury as a result of the assaults.
The vehicle in which the assaults occurred was covered by a policy issued by Mount Washington Insurance Corporation. After Mount Washington denied coverage for Doe’s claims, Doe sought uninsured motorist coverage from Concord General. Concord General also denied coverage and brought a declaratory judgment action against Doe and Mount Washington.
All three parties filed summary judgment motions. Concord General argued that Doe’s injuries did not arise out of the use of McGonagle’s vehicle. In the alternative, Concord General argued that if it was obligated to provide coverage, the coverage available under the Mount Washington policy would be primary and, therefore, would offset its own obligations. The trial court granted Concord General’s motion, denied Doe’s motion, and ruled that Mount Washington’s motion was moot.
The Concord General policy provides coverage for “damages which an ‘insured’ is legally entitled to recover from the owner or operator of …[a]n ‘uninsured motor vehicle’ … because of ‘bodily injury’ sustained by an ‘insured’ and caused by an accident…” The policy also requires that liability for the damages “must arise out of the ownership, maintenance, or use of the ‘uninsured motor vehicle.’”
In order for coverage to apply, the injury must “originate from, grow out of, or flow from the use of the vehicle.” There must be a causal connection between the resulting harm and the use of the vehicle in order to invoke coverage under an automobile policy. Although “proximate causation” is not required, there must be more than a “tenuous connection” between the injury and the use of the automobile. “Use” of an automobile means “use of the automobile in its inherent nature as a vehicle.” When a vehicle “acts as merely the situs of an injury, the causal connection between the injury and the use of the vehicle is too tenuous to support coverage.”
The Court held that it was not sufficient that McGonagle was “using” the vehicle at the time of the assaults, because the injuries did not “originate from, grow out of, or flow from that use.”
The Court also rejected Doe’s argument that the injuries were causally connected to the use of the vehicle because the vehicle was the one location that provided McGonagle unchaperoned access to her. The allegation that “but for” the use of the vehicle McGonagle may not have had access to the plaintiff was not enough to establish the requisite causal relationship between the use of the vehicle and the injuries.
Finally, the Court declined to rule that one who voluntarily transports another impliedly assumes the duty of a “common carrier” to provide safe passage, thus invoking coverage.
The Court concluded that Doe’s injuries resulted from the assaults and not from the use of the vehicle. The fact that the vehicle was the situs of the assaults provided too tenuous a connection to the injuries to support coverage under the policy.
Stephen J. Schulthess