Chapter 3 - § 3.11 • WHEN DOES AN ACCIDENT OR INJURY ARISE OUT OF THE OPERATION, MAINTENANCE, OR USE OF A MOTOR VEHICLE?

• Jurisdiction: Colorado

§ 3.11 • WHEN DOES AN ACCIDENT OR INJURY ARISE OUT OF THE OPERATION, MAINTENANCE, OR USE OF A MOTOR VEHICLE?

Motor vehicle liability insurance policies typically provide coverage to insured persons for bodily injury or property damage arising out of the "operation, maintenance, or use" of an insured motor vehicle. In a variety of situations where insurance coverage was at issue, including cases involving gunshot wounds and injuries sustained during the loading and unloading of vehicles, Colorado courts have had to determine whether particular accidents and injuries arose out of the operation, maintenance, or use of vehicles. These cases are explored in chronological order below to show how the law has evolved. As will be shown, Colorado courts have adopted a "but for" test of causation. The courts have drawn a distinction between cases in which an injury merely fortuitously occurs inside a vehicle and those in which some use of the vehicle, which is not foreign to its inherent purpose, is related to the accident or injury. Where a vehicle merely happens to be the coincidental situs of an injury, the injury will be deemed unrelated to the use or operation of the vehicle, and no liability coverage for the injury will exist.

§ 3.11.1—Injury or Death Does Not Arise out of the Use of a Motor Vehicle Where the Vehicle Is Merely the Situs of a Shooting

Where high school students had returned to school after target practicing with some firearms, and vehicle was parked with the engine off, and occupant of vehicle was accidentally shot and killed by another occupant who was toying with a loaded pistol, no liability insurance coverage existed because the death did not arise out of the use of a covered automobile, since the discharge of the gun was not in any way causally related to the stopped vehicle. Mason v. Celina Mutual Insurance Co., 423 P.2d 24 (Colo. 1967).

Mason v. Celina Mutual Insurance Co., 423 P.2d 24 (Colo. 1967), arose out of a shooting that occurred in a high school parking lot. Ricky Weathers, who was a named insured under an automobile insurance policy issued by Celina Mutual Insurance Company, had driven several friends, including Donald Mason, Francis Zimmerman, and two other students from Greeley High School to go target practicing with some guns. After returning to school, Weathers parked the vehicle with the engine off and went to class with one of the other students. Mason, Zimmerman, and another student remained in the parked car. While Mason was toying with a loaded pistol, the gun accidentally discharged and killed Zimmerman. The discharge of the gun did not result from any contact between Mason's body and the interior of the vehicle. Zimmerman's father brought a wrongful death action against Mason, who joined Celina as a third-party defendant. Mason asserted that Celina was obligated to provide him with liability insurance coverage. The Celina policy provided that the company was obligated to pay any sums an insured became legally obligated to pay because of the death of any person "'caused by accident and arising out of the use of the automobile.'" Both the trial court and the Colorado Supreme Court agreed that Mason was not entitled to liability insurance protection under the terms of the policy.

Even assuming for the sake of argument that Mason was an insured because he was a permissive user of the vehicle when the accident occurred, the supreme court concluded that no coverage existed because "in our view the accident did not arise out of a covered use of the automobile." 423 P.2d at 24-25 (emphasis by court). The court found that there was "no causal connection between the discharge of the pistol and the stopped vehicle . . . ." Id. at 25. Moreover, even if Mason was, in a technical sense, using the vehicle by sitting in it when the shot was fired, "such a use, however, is not the type of use contemplated by the policy in question where the injury would have to be one originating from the use of the vehicle as such." Id.

§ 3.11.2—Accidental Shooting, Which Occurs While Vehicle Is Being Used as a Platform for Hunting, Does Not Arise Out of the Use of a Vehicle

Where two men were in a vehicle and were hunting rabbits with shotguns along a public highway, and driver, who was preparing to shoot a rabbit through an open car window, pulled his gun inside when a car approached from the opposite direction, and the gun then accidentally discharged, wounding his companion, the injury did not arise out of the use of the automobile, since the only relationship between the vehicle and the accident was the presence of the tortfeasor and the injured person inside the vehicle. Azar v. Employers Casualty Co., 495 P.2d 554 (Colo. 1972).

In Azar v. Employers Casualty Co., 495 P.2d 554 (Colo. 1972), the court granted certiorari to review the court of appeals' decision in Employers Casualty Co. v. Azar, 479 P.2d 979 (Colo. App. 1971). The court affirmed the court of appeals' judgment that a gunshot injury that occurred within a parked vehicle that was being used as a platform for hunting did not arise out of the use of the vehicle, and that an automobile liability insurance policy provided no coverage for the injury.

William Azar and John Filer were in a vehicle operated by Azar and were hunting rabbits along a public highway. Azar was getting ready to fire his shotgun through an open window when he saw a car approach from the opposite direction. When he brought the shotgun back into the car, it accidentally discharged and wounded Filer. When this accident occurred, Azar was insured under an automobile liability policy issued by Employers Casualty Company and under a homeowner's policy issued by Aetna Insurance Company. Aetna defended Azar and paid $8,000 to settle Filer's injury claim. Aetna then sought reimbursement of the costs of defense and indemnity from Employers. The trial court determined that Employers was obligated to reimburse Aetna because the accident and injuries arose out of the use of Azar's automobile. Finding Mason v. Celina Mutual Insurance Co., 423 P.2d 24 (Colo. 1967), to be dispositive, the court of appeals reversed.

The supreme court agreed that the facts in Mason were very similar to those presented here. As in Mason, a shooting occurred inside a parked motor vehicle, and there was no evidence "that the vehicle in any way contributed to or was connected with the accidental discharge of the firearm." 495 P.2d at 555. "The only relationship of the vehicle to the accident was the presence of the tort-feasor and the injured person in the automobile at the time of the infliction of the injuries." Id. The court found that such an occurrence did not arise "'out of the ownership, maintenance or use of the owned automobile'" under Azar's liability policy. Id. (emphasis by court).

The court recognized that the phrase "'arising out of the use' in automobile liability policies has generally been construed broadly and comprehensively, and to mean 'originate from,' 'grow out of,' or 'flow from.'" Id. Further, "there must be a causal relation or connection between the injury and the use of the vehicle in order for the injury to come within the meaning of the phrase 'arising out of the use' of a vehicle." Id. Here...