A few weeksago my co-editor, David Thamann, wrote in his blog onPropertyCasualty360.com that he questioned the application of autoliability coverage to injuries caused in drive-by shootings ordog bites, even if autos were used to transportthe shooters or if the dog was in an auto when he bit someone.David's analysis centered on the idea that auto policies aretriggered by injuries caused by the “use” of the auto. He reasonedthat these types of injuries really didn't involve such use.

Typical auto policies do state that they will pay damages forbodily injury or property damage for which insureds are legallyresponsible because of an auto accident. An auto accident typicallyis not defined on these policies. However, standard language doescontinue by defining an “insured” as you (the named insured) orfamily members “for the ownership, maintenance, or use of anyautomobile or trailer.”

To me, the focus must extend past the analysis of the term “use”and focus on the requirement that the injury is causedaccidentally. This is especially true in respect to gunshot woundsthat involve autos. Various courts have dissected this issue. Onecase from the Supreme Court of South Dakota covers the subjectthoroughly in its nine-page decision and subsequent six-pagedissension. That court's discussion involved a hunting-related accident, which is certainlydifferent from a drive-by shooting. The court's reasoning doesprovide guidance for interpreting policy terminology as it appliesto injuries related to use of an auto but not actually caused by anauto.

Hunting Expeditions
In North Star Mutual Insurance Company v. Peterson andMilbank Insurance Company, the Supreme Court analyzed thecircuit court's finding that the auto insurer covering BradPeterson and family (d/b/a Peterson Farms) covered injuriessustained when a hunting rifle that was in a truck accidentallydischarged and injured a passenger. The circuit court had reasonedthat the accident occurred in connection with the use of a vehicleas a part of a hunting expedition and said the policy did providecoverage. The Supreme Court affirmed that decision after delving atlength into the language of the policy and the facts surroundingthe injury.

The Peterson incident involved a deer-hunting expedition, after which one of theguns was propped near the middle of the pickup truck's back seat.The chamber round had been ejected and the lever opened in aneffort to make the gun safe. On the next afternoon the group gotinto the pickup to go hunting again. Two cousins were in the backseat when one of them tried to reposition the gun so it would be ina safer place. Unfortunately, his actions backfired; the gundischarged, and a bullet struck his cousin's ankles.

Even though the truck engine was on and idling, it was notmoving when the accident occurred. The circuit court ruled that theauto policy applied to the injuries because the term “autoaccident” was not defined in the policy. As a result, the circuitcourt interpreted the policy in the insured's favor. The insurerappealed, arguing that the accidental discharge of a gun in thetruck's back seat did not qualify as an “auto accident” under anycommon sense analysis. The insurer claimed that the truck wasmerely the site of the occurrence, and that there was no causalconnection between the truck's use and the event.

Hunting accidents involving autos hold aspecial place in case law. For example, in a 1989 case,Sanchez v. Herrera, the Supreme Court ofNew Mexico outlined very specific categories into which injuriesinvolving auto-related hunting accidents fell. Those categories areaccidents in which vehicle movement causes the gun to discharge;accidents in which a gun was being placed in or removed from a gunrack in a vehicle; accidents in which a gun was being loaded intoor unloaded from a vehicle; accidents involving the use of avehicle as a gun rest; and accidents in which the vehicles is theplace where the incident originated. The Peterson case appearedfell within the last category: the place where the accidentoriginated.

The Heart of LiabilityCoverage 
In analyzing the Peterson case,the North Dakota court admitted that, even with a broadinterpretation of the “use” clause, there had to be a causalconnection between the injury and the vehicle. Being the merelocation of where the accident happened, by itself, was not enough.The court agreed that the vehicle was not merely the location ofthe accident, it was causally connected to the injury becausetransporting hunters and guns is a “foreseeable and inherent use ofa pickup truck” in North Dakota.

The Supreme Court's reasoning and subsequent affirmation ofcoverage goes far beyond the idea that the auto itself must havesomehow caused the injury. The difference between Peterson andother gun-related auto cases involves more than the use issue. Itgets to the very heart of liability coverage. There is no coverageon most liability policies (professional liability and personalinjury notwithstanding) for injuries that are caused intentionally.I would go in a different direction from my co-editor on the issueof 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 coveragefor any insured who intentionally causes bodily injury or propertydamage. The standard business auto policy states that bodily injuryand property damage that is expected or intended from thestandpoint of the insured is not covered.

Injuries arising from hunting-related accidents that originate in oron an auto are not typically intentionally caused. Injuries arisingfrom drive-by shootings that originate in or on an auto areintentionally caused. There is auto liability coverage for theformer, but not for the latter. In neither case does the involvedauto, nor any part of it, actually cause the injury.