Chapter 2 - § 2.4 • CAUSATION ISSUES

• Jurisdiction: Colorado

§ 2.4 • CAUSATION ISSUES

As noted in § 2.2, C.R.S. § 10-4-609(1) requires automobile insurers to offer coverage for damages recoverable "from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom . . . ." Automobile insurance policies providing UM coverage must comply with this statutory requirement. The words "because of" in the statute contemplate the existence of a causal connection between the actions of an uninsured motorist and the bodily injury sustained by the insured for the insured to recover UM benefits. How Colorado courts have addressed the necessity of such a causal connection is explored in the subsections below. Because the quoted language of § 10-4-609(1) was not changed when the statute was amended in 2007, cases arising under the former statute remain relevant regarding causation issues. The leading case addressing the causation issue remains State Farm Mutual Automobile Insurance Co. v. Kastner, 77 P.3d 1256 (Colo. 2003), which is reviewed in § 2.4.5. Kastner established a definitive, albeit difficult, test for determining when an injury arises out of the use of an uninsured motor vehicle. The rules in Kastner were most recently applied in State Farm Mutual Automobile Insurance Co. v. Fisher, 618 F.3d 1103 (10th Cir. 2010), which addressed the issue whether the death of an insured caused by an assailant using a firearm arose out of the assailant's use of an uninsured motor vehicle. The Fisher case is reviewed in § 2.4.1b.

§ 2.4.1—The Fact That Injuries Were Directly Caused by the Use of a Firearm Does Not Necessarily Negate the Existence of a Causal Connection Between the Insured's Injuries and the Use of an Uninsured Motor Vehicle

a—Assault with firearm made from moving vehicle

Where insured was injured while driving on highway when he was shot by passenger in an adjacent vehicle, he was eligible for UM coverage. The fact that the injuries were directly caused by a gunshot did not mean no coverage existed under UM provisions. Existence of UM coverage requires a causal connection between the uninsured motor vehicle and the injury. The fact that a firearm contributed to the injury did not preclude the requisite causal connection because it was more than incidental that assailant was inside a vehicle when he shot insured. Without a vehicle and the assistance of two other vehicles, which boxed in insured's vehicle, assailant would not have been able to shoot insured. Cung La v. State Farm Mutual Automobile Insurance Co., 830 P.2d 1007, 1009-11 (Colo. 1992).

As discussed in former § 3.3.5 in Appendix B of this Handbook, in Cung La v. State Farm Mutual Automobile Insurance Co., 830 P.2d 1007 (Colo. 1992), the Colorado Supreme Court addressed the issue of whether injuries sustained by an insured when he was shot while driving his vehicle were causally related to the use of his own vehicle, for purposes of PIP coverage, and to an uninsured vehicle, from which the shot was fired, for purposes of UM coverage. The court concluded that sufficient evidence of the requisite causal connection existed to preclude summary judgment in favor of the insurer with respect to both coverages.

Cung La was shot on August 7, 1988, while he was driving his Ford Mustang, which was insured by State Farm. Three other vehicles "boxed" in his Mustang while Cung La was on Interstate 70, and an assailant from one of the three vehicles shot Cung La. There had previously been an altercation between the assailant's group and a group with which Cung La was associated. Cung La's Mustang was present at the site of the altercation. An investigation showed that the shooting occurred because the assailant's group were looking for a chance to shoot any of the people who had been involved in the altercation. Cung La claimed that he had been shot because he was driving the Mustang that the assailant had identified during the altercation.

When Cung La sought UM and PIP benefits from State Farm, it brought a declaratory judgment action against him to determine the issues of coverage. The trial court granted summary judgment to State Farm, and the court of appeals affirmed. The supreme court reversed, finding that there were genuine issues of fact regarding the question of causation that precluded summary judgment.

In State Farm Mutual Automobile Insurance Co. v. Cung La, 819 P.2d 537 (Colo. App. 1991), the court of appeals held that because Cung La's injuries were directly caused by the gunshot, they were not covered under the uninsured motorist provisions of his policy with State Farm. The supreme court disagreed with the court of appeals' analysis. 830 P.2d at 1009.

To determine whether summary judgment was proper on the UM claim, the court had to decide whether evidence was presented that supported the conclusion that Cung La's injuries arose out of the operation, maintenance, or use of an uninsured motor vehicle. The court held that the assailant's "use of a firearm to shoot the petitioner does not preclude the petitioner's resulting injuries from having arisen out of the use of the uninsured motor vehicle if that vehicle contributed to the injuries and the injuries would not have been sustained but for the assailant's use of the uninsured vehicle." Id.

In reaching this conclusion, the court cited a number of cases from other jurisdictions and found that a majority of the courts that have dealt with similar issues have found that a causal connection did exist between the use of the motor vehicle and the claimant's injuries in similar circumstances. The court also cited Kohl v. Union Insurance Co., 731 P.2d 134 (Colo. 1986), as supportive of its conclusion that there was evidence of the requisite causal connection. Relying upon Kohl and cases from other jurisdictions, the court concluded as follows:

Application of the uninsured motorist provision requires a causal connection between the uninsured motor vehicle and the injury. Here, the fact that the firearm contributed to the injuries does not preclude the requisite causal connection. Evidence was presented that it was more than incidental that the assailant was inside a vehicle when he shot the petitioner. At the time the shooting occurred, both the assailant's vehicle and the petitioner's vehicle were proceeding on I-70. Without a vehicle and the assistance of two other vehicles, the assailant would not have been able to restrict the movement of the Mustang and shoot the petitioner.

830 P.2d at 1011. Thus, the court concluded that Cung La "presented evidence that raised a material question as to whether the assailant's use of the uninsured vehicle contributed to the shooting" and to his injuries. Id.

b—Assault with firearm occurring after assailant exits his vehicle

Where one driver exited his vehicle and intentionally shot and killed another driver, who had also exited his vehicle, the assailant's injurious conduct did not have the requisite causal connection with the "use" of the vehicle to establish a valid UM/UIM claim. In contrast to the circumstance where an assailant's injurious conduct is predicated on his or her presence in a moving vehicle, such as a "drive-by" shooting, if the vehicle in which the assailant is traveling stops and the assailant gets out of the vehicle before the attack, the attack does not constitute "use" of a vehicle for purposes of UM/UIM coverage. State Farm Mut. Auto. Ins. Co. v. Fisher, 618 F.3d 1103 (10th Cir. 2010).

State Farm Mutual Automobile Insurance Co. v. Fisher, 618 F.3d 1103 (10th Cir. 2010), arose out of an incident on November 5, 2007, in which Andrew Brown (Brown) shot and killed Michael Fisher (Fisher) and then killed himself. Before the incident, Fisher was driving a Ford Explorer, with several passengers, including Tiffany Howard (Howard), Brown's ex-girlfriend. Shortly after Fisher picked up Howard, he and his passengers noticed they were being followed by a Chevy Suburban driven by Brown. Brown rammed the Suburban into the Explorer several times and then fired a shotgun at it, injuring two passengers. Fisher pulled the Explorer to the side of the road and got out of the Explorer so he could obtain assistance for one of the wounded passengers. Howard and the other passengers also got out of the Explorer. In the meantime, Brown turned the Suburban around and pulled up behind the Explorer. Brown got out of the Suburban and then shot Fisher, who was standing in the middle of the road. He chased Howard into a nearby field and assaulted her. When the police arrived, he returned to the Suburban, got another gun, and shot and killed himself.

Fisher's mother, Barbara Fisher (Ms. Fisher), made a wrongful death claim with Geico, Brown's liability insurer, which denied coverage based upon the intentional acts exclusion. Fisher then asserted a UM claim against her own insurer, State Farm, which had issued a policy covering the Explorer. Other passengers also made claims for UM benefits against State Farm. State Farm then filed a declaratory judgment action seeking a declaration that the death of Fisher and the injuries to the passengers were not not covered under the policy because they were not caused by an accident involving the use or operation of an uninsured motor vehicle. Ms. Fisher filed a counterclaim under C.R.S. § 10-3-1116(1), asserting that State Farm had unreasonably denied or delayed payment of insurance benefits.

State Farm filed a motion for summary judgment on the issue of causation. The district court granted the motion on Ms. Fisher's claim, but denied the motion regarding the passengers' claims. The district court also granted summary judgment to State Farm on Ms. Fisher's claim under § 10-3-1116(1). After Ms. Fisher timely appealed, in State Farm Mutual Automobile Insurance Co. v. Fisher, 609 F.3d 1051 (10th Cir. 2010), the court certified the question of Ms. Fisher's entitlement to recover UM benefits to the Colorado Supreme Court. However...