v. Bristol West Insurance

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
July 2, 2020

2020COA102

No. 19CA0660, Boyle v. Bristol West Insurance — Insurance —
Automobile Insurance Policies — Uninsured/Underinsured

A division of the court of appeals concludes for the first time

that a passenger in a motor vehicle involved in a road rage incident

is not “using” that vehicle for purposes of underinsured motorist

coverage when he gets out of the vehicle to confront the driver of the

other vehicle.
COLORADO COURT OF APPEALS 2020COA102

Court of Appeals No. 19CA0660
Mesa County District Court No. 18CV30170
Honorable Brian J. Flynn, Judge

Robert Boyle,

Plaintiff-Appellant,

v.

Bristol West Insurance Company,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE TOW
Román and Pawar, JJ., concur

Announced July 2, 2020

Killian Davis Richter & Mayle, P.C., Nicholas W. Mayle, Benjamin P. Meade,
Joseph H. Azbell, Grand Junction, Colorado, for Plaintiff-Appellant

White and Steele, P.C., Joel N. Varnell, E. Catlynne Shadakofsky, Denver,
Colorado, for Defendant-Appellee
¶1 Plaintiff, Robert Boyle, appeals the district court’s summary

judgment in favor of defendant, Bristol West Insurance Company

(Bristol West). This appeal requires us to decide, apparently for the

first time, whether a passenger in a motor vehicle involved in a road

rage incident is “using” that vehicle for purposes of underinsured

motorist coverage if he is injured after getting out of the vehicle to

confront the driver of the other vehicle. Because we conclude that

Boyle was not using the vehicle when he was struck by the other

vehicle, we affirm.

I. Background

¶2 This case comes to us after the district court resolved

competing motions for summary judgment. As a result, we glean

the following facts from the undisputed facts set forth in the parties’

motions.

¶3 Boyle was a passenger in a Toyota insured by Bristol West.

The Toyota and another vehicle, a Jeep, were involved in an

incident of road rage, during which both vehicles were driven

aggressively, cutting each other off and suddenly braking in front of

each other. When the Toyota came to a red light, the Jeep stopped

behind the Toyota. Boyle got out of the Toyota and approached the

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 Jeep. As the driver of the Jeep made a U-turn, the Jeep struck

Boyle and dragged him for some distance, causing Boyle severe

injuries.

¶4 The Toyota owner’s insurance policy included uninsured

motorist coverage, and it insured any “person while occupying,

maintaining or using [the owner’s] covered auto . . . .” After settling

for the respective policy limits with both his own insurer and with

the insurer of the Jeep, Boyle sought underinsured motorist

benefits from Bristol West.1 Bristol West denied his claim.

¶5 Boyle filed a complaint for declaratory judgment in district

court. The parties filed cross-motions for summary judgment. The

district court granted Bristol West’s motion, ruling that, because

Boyle was not “using” the Toyota when he was injured, he was not

entitled to benefits from Bristol West.2 The district court denied

Boyle’s motion.

1 Uninsured motorist coverage includes underinsured motorist
coverage. § 10-4-609(4), C.R.S. 2019.
2 Boyle has never contended that he was either “occupying” or

“maintaining” the Toyota at the time of the incident.

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 II. The District Court Did Not Err by Granting Bristol West’s
Motion for Summary Judgment

¶6 Boyle contends that the district court erred by granting Bristol

West’s motion for summary judgment because Boyle “used” the

Toyota when he was injured.3 We disagree.

A. Standard of Review

¶7 We review de novo an order granting a motion for summary

judgment. Salas v. Grancare, Inc., 22 P.3d 568, 571 (Colo. App.

2001). Summary judgment is appropriate only when the pleadings

and supporting documents fail to establish a genuine issue of

material fact and there is a clear showing that the moving party is

entitled to summary judgment as a matter of law. Id.

B. Applicable Law

¶8 In Colorado, automobile insurers must include coverage for

injuries “arising out of the ownership, maintenance, or use of a

motor vehicle” caused by uninsured motorists, unless such

coverage is rejected in writing by the named insured.

§ 10-4-609(1)(a), C.R.S. 2019. As noted, the Bristol West policy on

3 Boyle raises three overlapping issues on appeal pertaining to the
motion for summary judgment. Accordingly, we address them
together.

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 the Toyota included such coverage. Our supreme court has

articulated a two-prong test for determining when injuries arise out

of the use of a motor vehicle. State Farm Mut. Auto. Ins. Co. v.

Kastner, 77 P.3d 1256, 1261-65 (Colo. 2003).

¶9 The first prong focuses on the “use” of a motor vehicle. Id. at

1261-63. The vehicle’s use at the time the injuries were suffered

must have been conceivable to the parties at the time of contracting

and not foreign to the vehicle’s inherent purpose. Id. at 1262.

Some motor vehicles may have conceivable uses beyond mere

transportation. Id. at 1262-63; see also Aetna Cas. & Sur. Co. v.

McMichael, 906 P.2d 92, 94-103 (Colo. 1995) (determining that a

road construction worker who was using his truck as a barricade

while he sawed concrete barriers in the median of a highway some

distance in front of his truck was “using” his vehicle as

contemplated by the uninsured motorist policy where the vehicle

had a factory-equipped overhead beacon and emergency flashers);

Trinity Universal Ins. Co. v. Hall, 690 P.2d 227, 231 n.4 (Colo. 1984)

(using a vehicle to sell food and drink was a conceivable use where

the vehicle had been factory-modified for use as a catering truck

and mobile refreshment stand); Titan Constr. Co. v. Nolf, 183 Colo.

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 188, 193-94, 515 P.2d 1123, 1125-26 (1973) (unloading and

loading cement from a ready-mix cement truck constituted a use

within the meaning of a liability-to-third-persons policy provision

because such use was inherent in the nature of the vehicle).

However, with respect to noncommercial passenger vehicles, the

only conceivable use that is not foreign to their inherent purpose is

use as a means of transportation, unless an insurance policy

provides otherwise. Kastner, 77 P.3d at 1262.

¶ 10 The second prong, which has two parts, concerns the “arising

out of” component — i.e., the causal connection between the motor

vehicle’s use and the injuries suffered. Id. at 1263-65. First, the

claimant must show that but for the use of the motor vehicle, the

injuries would not have occurred. Id. at 1264. Second, the

claimant must show that there was an unbroken causal chain

between the use of the vehicle and the claimed injuries. Id. Thus,

the use of the vehicle and the injuries must be directly related or

inextricably linked such that no independent significant act or non-

use of the vehicle interrupted the “but for” causal chain between the

vehicle’s use and the injuries suffered. Id.

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 C. Boyle’s Injuries Did Not Arise Out of the Use of the Toyota

1. Boyle’s Association With the Vehicle Does Not Establish Use of
the Vehicle

¶ 11 Relying on Cung La v. State Farm Automobile Insurance Co.,

830 P.2d 1007 (Colo. 1992), Boyle first contends that he was using

the Toyota because he was targeted for the assault as a result of his

connection with the vehicle. But Boyle misreads Cung La.

¶ 12 In Cung La, the victim was driving the insured vehicle when he

was shot by a passenger in another car. Id. at 1008.4 The victim

had been identified by his assailants because his vehicle, a white

Mustang, had driven away from a recent altercation. Id. But our

supreme court did not determine that the victim in Cung La was

using his car because of his association with it. Rather, the court

held that the victim was using the car because “the [victim] was

driving and operating the vehicle in a manner not foreign to its

inherent purpose.”5 Id. at 1012. Our supreme court has since

4 The assailants’ vehicle was considered an uninsured vehicle under
the applicable policy because the owner or driver of that vehicle was
unknown. Cung La v. State Farm Auto. Ins. Co., 830 P.2d 1007,
1008 n.3 (Colo. 1992).
5 Although the court held that the victim was using his car, the case

was ultimately remanded for a jury to determine “whether the

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 stated that the Cung La court “assumed that the assailants and the

insured were ‘using’ their cars as contemplated by the insured’s

policy since the cars were moving at the time of the shooting.”

Kastner, 77 P.3d at 1265. Here, in contrast, the Toyota was not

moving, nor was Boyle in the Toyota when he was injured.

Therefore, Boyle’s position was not analogous to that of the victim

in Cung La.

¶ 13 Nor, as Boyle argues, was his situation similar situation to

that of the assailants in Cung La. The assailants in Cung La used

three vehicles to block the victim’s car from driving away, thus

facilitating the assault. Cung La, 830 P.2d at 1008. But here, there

is no evidence to suggest that the Toyota was intentionally blocking

the other vehicle from leaving the scene. Rather, the Toyota was

stopped at a stop light. The fact that the other vehicle executed a

U-turn to leave the area, injuring Boyle in the process, suggests

that Boyle, not the Toyota, was blocking the other vehicle from

leaving.

[victim’s] use of or presence in the vehicle was causally related to
his injuries.” Cung La, 830 P.2d at 1012.

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¶ 14 In any event, the fact that Cung La discussed whether the

victim’s shooting involved the use of the assailants’ uninsured

vehicle is inapposite to this case. There, the policy covered any

injury “arising out of the operation, maintenance or use of an

uninsured motor vehicle.” Id. (emphasis added). In contrast, under

the terms of the Bristol West policy, Boyle (who did not own the

vehicle) was only insured for injuries he suffered arising out of the

use of “the covered auto.” Thus, even if Boyle could be said to have

been “using” the Jeep, he could not recover from Bristol West.

2. Boyle’s Proximity to the Toyota Does Not Establish Use of the
Vehicle

¶ 15 Boyle also argues that because he only stepped out of the

Toyota briefly and remained within a few feet of it, he was still using

the vehicle. But the key inquiry is not how long he was outside of

the car or how far he strayed from it. Rather, the question is

whether the activity he was engaged in was a cognizable use of the

vehicle.

¶ 16 Boyle relies on cases that involve commercial vehicles to

support his argument. See Mays v. Travelers Prop. Cas. Co. of Am.,

No. Civ. A 04-D-486 CBS, 2005 WL 2406108 (D. Colo. Sept. 28,

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 2005); McMichael, 906 P.2d 92. But as previously stated,

cognizable commercial vehicle “uses” are more expansive than those

for noncommercial vehicles. Kastner, 77 P.3d at 1262-63.

Nevertheless, even in determining whether a commercial vehicle

was in “use” by the victim, “[t]hese cases did not turn on the

proximity of the claimant to the vehicle at the time of the accident

but, rather, the particular activity in which the claimant was

engaged.” McMichael, 906 P.2d at 102.

¶ 17 Nor do the cases cited by Boyle that involve noncommercial

vehicles turn on proximity to the vehicle. In Government Employees

Insurance Co. v. MFA Mutual Insurance Co., 802 P.2d 1122 (Colo.

App. 1990), the victim was injured after stepping out of the car to

change a flat tire. Id. at 1124. A division of this court held that

“the storage of a spare tire is a use within the inherent purpose of

an automobile.” Id. at 1125. And in Progressive Casualty Insurance

Co. v. Farm Bureau Mutual Insurance Co., 53 P.3d 740 (Colo. App.

2002), the victim stepped out of the vehicle to render aid to those in

a car accident. Id. at 742. A division of this court also held that

the need for a motorist to leave his or her vehicle to assist other

motorists in need of assistance after an injury-causing accident was

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 a “foreseeable event arising out of the use of the vehicle.” Id.

(quoting Metro. Prop. & Cas. Ins. Co. v. Neubert, 969 P.2d 733, 735

(Colo. App. 1998)).

¶ 18 Here, in contrast, Boyle did not leave the Toyota to render

assistance to another injured party. Rather, he stepped out of the

Toyota to approach the occupant of the other vehicle involved in a

road rage incident. His use of the Toyota was therefore not one that

was “contemplated by the policy in question.” Mason v. Celina Mut.

Ins. Co., 161 Colo. 442, 444, 423 P.2d 24, 25 (1967); see also Roque

v. Allstate Ins. Co., 2012 COA 10, ¶ 15 (holding that a driver’s act of

parking his car behind plaintiff’s vehicle during a road rage incident

to block plaintiff’s vehicle from driving away was “not using the car

for transportation and not another use contemplated by the policy”).

¶ 19 Unlike a flat tire or a car accident victim in need of assistance,

a passenger getting out of a vehicle to approach another driver

involved in a road rage incident is not inherent to using a vehicle for

transportation or a use contemplated by the insurer when issuing

the policy.

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 3. Boyle’s Leaving the Toyota to Approach the Jeep Interrupted
the Causal Chain

¶ 20 Finally, Boyle’s actions fail to satisfy the second prong of the

Kastner test as well. By leaving the vehicle to confront the driver of

the Jeep, Boyle engaged in an independent significant act or non-

use of the vehicle. In doing so, he interrupted the “but for” causal

chain between the covered use of the vehicle for transportation and

his injury. See Roque, ¶ 16.

¶ 21 Boyle argues that he would have been injured by staying in

the Toyota, and thus it would be absurd to deny him coverage

merely because he exited the car to avoid the injury. But the case

Boyle relies on, Frain v. Keystone Insurance Co., 640 A.2d 1352 (Pa.

Super. Ct. 1994), is inapposite. In Frain, the plaintiff was injured

as she fell while running from her parked vehicle to avoid being

struck by an oncoming tractor trailer. Id. at 1353. The appellate

court noted that though the plaintiff was not in the vehicle when

she was injured, she had been entering the vehicle at the time she

noticed the imminent collision. Id. at 1356. The court noted that a

requirement that she enter the vehicle, rather than attempt to

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 remove herself from the imminent danger, would encourage

irresponsible behavior. Id.

¶ 22 In contrast, Boyle did not get out of the Toyota to avoid an

imminent collision. Indeed, there was no evidence that his or his

driver’s safety was contingent on his getting out and approaching

the Jeep on foot.6 By doing so, he engaged in an independent non-

use of the vehicle that interrupted the causal chain.

¶ 23 In sum, based on the undisputed facts, Boyle was not using

the Toyota in a manner contemplated by the insurance policy when

he was injured. Further, because he had voluntarily left the vehicle

for a purpose that was not inherent to transportation and was not

avoiding imminent injury, his injuries did not arise out of the use of

the vehicle. Because there was no genuine issue of material fact as

to whether the injuries arose out of the use of the Toyota, the

6 Boyle asserts that there is a factual dispute as to whether he
approached the Jeep in a threatening manner. But Boyle also
admits in his opening brief that this factual dispute is not material.
We agree. Whatever his motive or demeanor while approaching the
Jeep, Boyle’s decision to leave the vehicle for a purpose other than
transportation was not “use” of the Toyota. Thus, even if this fact is
in dispute, it is not a material dispute sufficient to defeat summary
judgment. See Salas v. Grancare, Inc., 22 P.3d 568, 571 (Colo. App.
2001).

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 district court properly granted Bristol West’s motion for summary

judgment.

III. Conclusion

¶ 24 The judgment is affirmed.

JUDGE ROMÁN and JUDGE PAWAR concur.

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