A few weeks ago my co-editor, David Thamann, wrote in his blog on PropertyCasualty360.com that he questioned the application of auto liability coverage to injuries caused in drive-by shootings or dog bites, even if autos were used to transport the shooters or if the dog was in an auto when he bit someone. David’s analysis centered on the idea that auto policies are triggered by injuries caused by the “use” of the auto. He reasoned that these types of injuries really didn’t involve such use.
Typical auto policies do state that they will pay damages for bodily injury or property damage for which insureds are legally responsible because of an auto accident. An auto accident typically is not defined on these policies. However, standard language does continue by defining an “insured” as you (the named insured) or family members “for the ownership, maintenance, or use of any automobile or trailer.”
To me, the focus must extend past the analysis of the term “use” and focus on the requirement that the injury is caused accidentally. This is especially true in respect to gunshot wounds that involve autos. Various courts have dissected this issue. One case from the Supreme Court of South Dakota covers the subject thoroughly in its nine-page decision and subsequent six-page dissension. That court’s discussion involved a hunting-related accident, which is certainly different from a drive-by shooting. The court’s reasoning does provide guidance for interpreting policy terminology as it applies to injuries related to use of an auto but not actually caused by an auto.
In North Star Mutual Insurance Company v. Peterson and Milbank Insurance Company, the Supreme Court analyzed the circuit court’s finding that the auto insurer covering Brad Peterson and family (d/b/a Peterson Farms) covered injuries sustained when a hunting rifle that was in a truck accidentally discharged and injured a passenger. The circuit court had reasoned that the accident occurred in connection with the use of a vehicle as a part of a hunting expedition and said the policy did provide coverage. The Supreme Court affirmed that decision after delving at length into the language of the policy and the facts surrounding the injury.
The Peterson incident involved a deer-hunting expedition, after which one of the guns was propped near the middle of the pickup truck’s back seat. The chamber round had been ejected and the lever opened in an effort to make the gun safe. On the next afternoon the group got into the pickup to go hunting again. Two cousins were in the back seat when one of them tried to reposition the gun so it would be in a safer place. Unfortunately, his actions backfired; the gun discharged, and a bullet struck his cousin’s ankles.
Even though the truck engine was on and idling, it was not moving when the accident occurred. The circuit court ruled that the auto policy applied to the injuries because the term “auto accident” was not defined in the policy. As a result, the circuit court interpreted the policy in the insured’s favor. The insurer appealed, arguing that the accidental discharge of a gun in the truck’s back seat did not qualify as an “auto accident” under any common sense analysis. The insurer claimed that the truck was merely the site of the occurrence, and that there was no causal connection between the truck’s use and the event.
Hunting accidents involving autos hold a special place in case law. For example, in a 1989 case, Sanchez v. Herrera, the Supreme Court of New Mexico outlined very specific categories into which injuries involving auto-related hunting accidents fell. Those categories are accidents in which vehicle movement causes the gun to discharge; accidents in which a gun was being placed in or removed from a gun rack in a vehicle; accidents in which a gun was being loaded into or unloaded from a vehicle; accidents involving the use of a vehicle as a gun rest; and accidents in which the vehicles is the place where the incident originated. The Peterson case appeared fell within the last category: the place where the accident originated.
The Heart of Liability Coverage
In analyzing the Peterson case, the North Dakota court admitted that, even with a broad interpretation of the “use” clause, there had to be a causal connection between the injury and the vehicle. Being the mere location of where the accident happened, by itself, was not enough. The court agreed that the vehicle was not merely the location of the accident, it was causally connected to the injury because transporting hunters and guns is a “foreseeable and inherent use of a pickup truck” in North Dakota.
The Supreme Court’s reasoning and subsequent affirmation of coverage goes far beyond the idea that the auto itself must have somehow caused the injury. The difference between Peterson and other gun-related auto cases involves more than the use issue. It gets to the very heart of liability coverage. There is no coverage on most liability policies (professional liability and personal injury notwithstanding) for injuries that are caused intentionally. I would go in a different direction from my co-editor on the issue of whether drive-by shootings should trigger auto coverage.
I believe the real issue is that of intention. The standard personal auto policy states that there is no coverage for any insured who intentionally causes bodily injury or property damage. The standard business auto policy states that bodily injury and property damage that is expected or intended from the standpoint of the insured is not covered.
Injuries arising from hunting-related accidents that originate in or on an auto are not typically intentionally caused. Injuries arising from drive-by shootings that originate in or on an auto are intentionally caused. There is auto liability coverage for the former, but not for the latter. In neither case does the involved auto, nor any part of it, actually cause the injury.