concurring in part; dissenting in part. I agree with the majority’s decision to affirm the trial court’s grant of summary judgment in favor of appellee on the fire department policies. However, I would also affirm the trial court’s grant of summary judgment on Hisaw’s personal policies. Therefore, I dissent in part to the majority opinion.
The majority is able to conclude, using the “but for” concept of causation, that a causal connection exists between Struthers driving his van off the road and Glenn Hisaw being injured by the van’s door after the van had been stationary for a period of time possibly as long as several hours.1 I believe this stretches “but for” causation beyond its reasonable limits. At some point in a sequence of events, an incident ceases to be the legal cause of all that follows it. Otherwise, “but for” causation could be stretched to ridiculous proportions. I’m afraid we have reached that point in this case.
Rather than recognize that “but for” causation is not without limitation, the majority simply observes that the phrase “arising out of” has been given a broader meaning by the courts than proximate cause, and that, therefore, the victim’s injuries need not rise to the level of being proximately caused by the use of the vehicle. The majority then cites State Farm Mutual Automobile Insurance Company v. LaSage, 262 Ark. 631, 559 S.W.2d 702 (1978), to support its conclusion that “but for” causation is enough to satisfy the “arising-out-of” requirement. However, LaSage simply has no application to the case at bar.
In LaSage, an uninsured motorist policy issued by State Farm to LaSage limited coverage to its insured for a hit-and-run motor vehicle “which causes bodily injury to an insured arising out of physical contact of such vehicle with the insured or with a motor vehicle which the insured is occupying.” While LaSage was driving his vehicle, it was struck by a hit-and-run vehicle. LaSage gave chase, but the chase ended when the hit-and-run vehicle stopped suddenly in the center of the road, forcing LaSage to drive his vehicle into a ditch where it struck a culvert, injuring LaSage. In the ensuing lawsuit under LaSage’s uninsured motorist policy, State Farm argued that in construing the physical-contact requirement of the policy, the court should hold that such contact must be a proximate cause of the plaintiff s injuries and not a mere circumstance thereof. The supreme court disagreed, rejecting the notion that “arising out of” meant “proximately caused by,” and quoted from Manufacturers Casualty Insurance Co. v. Goodville Mutual Casualty Co., 403 Penn. 603, 170 A.2d 571 (1961), for the proposition that “ ‘[b]ut for’ causation, i.e., a cause and result relationship, is enough to satisfy this provision of the policy.”
LaSage is obviously distinguishable from the case at bar. The issue in LaSage was whether the plaintiff s injuries arose out of the physical contact with an uninsured motor vehicle that had preceded the plaintiff s injuries by a matter of minutes. In contrast, in the case at bar, the issue is whether Hisaw’s injuries arose out of Struthers’ use of his motor vehicle that had been completed hours earlier, long after Struthers had ceased to use his underinsured motor vehicle and had been removed from the accident scene in an ambulance.
In LaSage, the supreme court recognized that there may be circumstances where, under any definition of “arising out of,” the injuries to a plaintiff might be too remote to be included in the coverage. I believe that the present case presents such a circumstance. Though it is theoretically possible to say that, but for the crash of the Struthers van, Hisaw would not have been injured, it is not reasonable, and it defies common sense. The fact that events are timed such that one follows another does not mean that the one caused the other. Struthers’s use of the van had, at most, a remote and attenuated connection to Hisaw’s injuries such as to negate causation. Therefore, I would hold that Hisaw’s injuries did not arise out of the use of the Struthers vehicle and that Hisaw and his wife were not entitled to coverage under their personal policies. I would affirm the trial court’s grant of summary judgment in full.
I am authorized to state that Judge Crabtree joins me in this opinion.
Hisaw testified that he obtained the registration information after the state trooper arrived at the scene of the accident. He testified as follows about the timing of these events:
Q. [T]he police report indicates the accident was around 5:30 ....
A. It reports it at 5:30?
Q. Yeah. It says 5:30 p.m. is the time of the accident Do you think the time is different?
A. Yes, I do.
Q. What time do you think it was?
A. I think it was earlier in the afternoon. . . . 2:00 or 3:00, something like that.
Q. Okay. Could you be mistaken about that?
A. Yeah, I could be, but I’m starting to kind of wonder if that isn’t the time that the trooper didn’t get there. . . . Because he was pretty late.