6.13 Drive-by Shootings

• Jurisdiction: Arizona

The cases across the country that have considered drive-by shootings in the context of automobile insurance are fact-specific and differ in their holdings as to whether such incidents arise out of the use of the vehicle. Generally, there appear to be five classes of cases involving shootings and motor vehicles:

1. When the vehicle is the mere situs for the shooting or assault, there is usually no coverage because there is no causal connection between the discharge of the gun and the inherent use of the vehicle.^[186]

2. When the case involves a discharge from a firearm that occurs while loading or unloading the vehicle, the courts generally find coverage.^[187]

3. When the vehicle is used as a gun rest while shooting, the courts are divided over whether there is coverage.^[188]

4. When the case involves a mounted gun rack that is considered part of the vehicle, courts have found coverage to exist if an accidental discharge occurs while the weapon is in or being removed from the gun rack.^[189]

5. When a discharge was caused by movement of the vehicle, usually when the vehicle hits a bump in the road, the courts have generally found coverage.^[190]

The Arizona Supreme Court first considered the question of coverage in a case involving a drive-by shooting in Ruiz v. Farmers Insurance Co.^[191] Angela Ruiz was a passenger in a motor vehicle owned by William Ihrig and operated by Paul Garcia. While the Ihrig vehicle was being driven on a Phoenix street, a phantom vehicle pulled alongside it. A passenger in the phantom vehicle fired several shotgun blasts into the Ihrig vehicle, injuring Ruiz. The phantom vehicle was uninsured at the time of the shooting. Ruiz was an insured under two policies providing uninsured motorist coverage. The primary policy was issued to Ihrig by Farmers Insurance Co. The excess policy was issued to Ruiz's parents by Continental Insurance Co. The Farmers policy provided UM coverage for bodily injury caused by accident arising out of the ownership, maintenance, or use of the uninsured motor vehicle. The Continental policy contained a similar requirement.

The court in Ruiz began its analysis by recognizing that Ruiz was required to show that the uninsured vehicle caused and produced her injury, "not that it merely facilitated her injury."^[192] The court concluded that "what injured Ruiz was how the shotgun was used, not how the car was used. The use of the uninsured vehicle was incidental."^[193] Ruiz's injuries did not arise out of the ownership, maintenance, or use of the uninsured vehicle. The court observed:

Injuries such as those suffered by Ruiz do not fall within the scope of uninsured motorist coverage as defined in the policies at issue. Nor is coverage required by the uninsured motorist statute, A.R.S. Sec. 20-259.01(A). [Footnote omitted.] Ruiz' injuries did not "arise out the use" of an uninsured motor vehicle; they arose out of-and were caused by-the independent, voluntary, and deliberate acts of a criminal using an uninsured vehicle not as a car, but as a gun platform. We agree with one Florida court that "arising out of the ownership, maintenance or use" means something more than "while using." Taylor, 622 So. 2d at 509. We caution, however, that our opinion should not be read so as to preclude uninsured motorist coverage merely because a crime is implicated. The fundamental question is whether the use of the vehicle was itself the cause of the injury.^[194]

In Benevides v. Arizona Property & Casualty Insurance Guaranty Fund,^[195] the issue before the court was whether persons who are shot by someone angered at the noise of a parked vehicle's stereo had a claim under an automobile liability policy that provided coverage for injuries arising from the ownership, maintenance, or use of a motor vehicle. The court rejected coverage:

In this case, the insurer spells out its intent clearly in its policy. An accident, as the Olivier court observed, is an event which, from the perspective of the victim, is unexpected. 574 A.2d at 1242. The phrase "car accident" connotes that the event involves the car. Further, the "arising out of the use . . . of a car" language implies that the death or other injury occurs as a result of the operation of the car. Love, 121 Ariz. at 73-74, 5888 P.2d at 366-67. We conclude that, for coverage to exist, an insured must be using the car pursuant to the "inherent nature" of the vehicle. Hawkeye-Security Ins. Co. v. Gilbert,866 P.2d 976, 979 (Idaho Ct. App. 1994). The "inherent nature of an automobile" is as a means of transport, not as a "mobile boom box."^[196]

An interesting case was decided in Allstate Insurance Co. v. Johnston.^[197] Three vehicles were involved in a motor vehicle accident. Mary Johnston was a passenger in a Jeep driven by David Ferrara. Brian Ford was the driver of a truck in which Richard DeLind was his passenger. Thomas Pecanic drove his own truck. The three vehicles were stopped at an intersection. Another passenger in the Jeep exchanged words with DeLind and Ford. DeLind and Ford got out of their truck and one of them said "go get the gun." When the light turned green, the Jeep took off with the two trucks in hot pursuit. They reached speeds of eighty-five miles per hour. Ford pulled along side the Jeep and swerved toward it. At the same time, Ferrara saw DeLind gesture in some way and believed that DeLind had pointed a gun at him. Ferrara swerved to get away from the truck, lost control, and struck a pole. Johnston was ejected and injured. Among the actions Johnston brought was one against DeLind, Ford's passenger. DeLind tendered the defense to Allstate under his parents' homeowners policy. Allstate filed a declaratory judgment action against Johnston, arguing that the policy did not cover Johnston's injuries because they arose out of the use or occupancy of a vehicle and thus fell within the policy's automobile exclusion. Allstate argued that Johnston's injuries were precluded by the exclusion because they were the result of an automobile accident and because DeLind's...