Ulrich v. United Services Automobile Ass'n

CARDINE, Justice,

dissenting, with whom URBIGKIT, Justice, joins.

I believe the law cited in the opinion of the court supports a finding for appellant, and for that reason I would reverse the summary judgment. The second altercation that resulted in Ulrich’s injury began with Stallings using his pickup to block Ulrich and Hill to prevent their driving away from the service station. Stallings then moved his vehicle to parallel with Ul-rich. A reasonable inference a jury might draw from these facts is that once having blocked Ulrich from leaving, Stallings moved his vehicle to get a better shot at the Ulrich vehicle and to conceal himself from return fire.

For Ulrich to be covered under the uninsured motorist provision of his policy, his injury must “arise out of the ownership, maintenance, or use of” the uninsured vehicle. The injury is held to arise out of the use of the vehicle if

it was the natural and reasonable incident or consequence of the use of an insured vehicle, the causal connection being reasonably apparent.

Worthington v. State, 598 P.2d 796, 807 (Wyo.1979). What is meant by the quoted language in unclear. It could be held to mean that the natural and reasonable consequence of the use of an insured vehicle is an accident involving the vehicle. Or it could mean the incident which follows be reasonably expected from the use being made of the vehicle, whatever that might be. I would hold the latter.

Continuing,

If the injury was directly caused by some independent or intervening cause wholly disassociated from, independent of or remote from the use of the automobile, the injury cannot be held to arise out of its use.

Id. In the fact scenario of this case, it would be impossible to say that the cause of the injury was “wholly disassociated from, independent of or remote from the use of the automobile.” (emphasis added) Finally, it is said:

The resolution of the question necessarily depends to a great degree upon the particular facts presented by each individual case.

Id.

Nor do I conclude that Wyoming Farm Bureau Mutual Ins. Co., Inc. v. State *951Farm Mutual Automobile Ins. Co., 467 F.2d 990 (10th Cir.1972) states a “but for” rule. In this case a bottle was thrown from an auto as the driver swerved the car. The bottle broke, causing an eye injury to a bystander. The court stated:

[T]he sole issue is whether as a matter of law the injury was an accident arising out of the ownership, maintenance or use of the motor vehicle within the meaning of the State Farm policy.

Id. at 993. The court then stated:

The numerous cases which have construed the clause that we have before us hold in effect, if not directly, that the relationship between the use of the vehicle and the injury complained of need not be a direct one. * * * The courts do scrutinize the facts and require that the negligent act and the injury be fairly proximate. * * *
* * * In our case there is a “but for” connection and more. The evidence here is amply sufficient to support a conclusion that the use of the automobile was a substantial factor in the production of the injury.
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* * * [T]he causal relationship need not be a direct one; that it is sufficiently connected if the act which causes the injury is incident to the use of the vehicle. * * * We hold, therefore, that the breaking of the bottle and the injury to Harvey were not legally remote in relationship to the use of the vehicle.

Id. at 993-95 (emphasis added). The ownership/maintenance language has been used in these policies for a long period of time without change. If the insurer wished to confine “use” to incidents in which the insured automobile actually strikes a person or object directly causing injury, it could do so easily. A failure to restrict “use” in the policy demonstrates, for me, an intention to provide broad coverage beyond that defined by the court in this opinion.

In this case, a jury could find that the shooting was not “wholly disassociated from * * * the use of the automobile,” was not “remote from the use,” was a substantial contributing factor to the injury, and, as then being used, the incident was reasonably to be expected. As the Worthing-ton court said, “The resolution of the question necessarily depends to a great degree upon the particular facts presented by each individual case.” 598 P.2d at 807. Accordingly, I would reverse the summary judgment entered in this case.