Washington Supreme Court Adopts "Mere Situs" Test for Injuries While Using Motor Vehicle.
They say that truth is stranger than fiction, and this is only proved true time and time again in insurance coverage issues.
The Western District of Washington certified this issue to the Washington Supreme Court, knowing full well that this situation likely skirted potential coverage issues. In a fairly suave move, the Washington Supreme Court punted the issue right back, with a little more direction.
In this case, a man was driving at a bar, presumably in a parking lot, and opened fire. Of course the car was uninsured, leaving coverage to fall to a UIM policy, which covered damages "arising out of" use of the vehicle.
Oddly enough, this situation has sort of been dealt with before, in the case of Detweiler v. J.C. Penney Cas. Ins. Co., 110 Wn.2d 99, 751 P.2d 282 (1988). I'll let Justice Johnson recite the facts:
In Detweiler, we held that injuries arose out of vehicle use when a drinking buddy drove off in the claimant's pickup truck and the claimant . . . jumped onto the bed of the truck, was later thrown off the truck, pulled out his .357 Magnum pistol, fired six shots at the tire of the truck from roughly 10 feet away, and was injured in the neck, face, and eyes by ricocheting bullet fragments. Detweiler, 110 Wn.2d at 101, 109. Finding such a causal connection between vehicle use and a gunshot injury is not unique to Washington.
A few important pieces of information were relayed back to the Western District:
- Arising out of is broader than caused by;
- If the vehicle was only the "mere situs" of the incident, then the incident is not arising from the vehicle's use;
- that insurance statutes are to be liberally construed for the public benefit.
So what does that mean for the case? Well, not much until the Western District rules based on this guidance. Given the liberal construction of Detweiler, there is a good argument that coverage should apply in a "drive-by" type situation, as the vehicle is essentially used as a mechanism of escape as the shooting is happening. However, the lack of clarity on the "mere situs" test provides some wiggle room.
You may be asking yourself, "Why no exclusion for an intentional act?" Unfortunately, in this case, the driver admitted shooting, but claimed he was not trying to hit any particular person.
The grey area will come, I believe, when a person goes to their car to get a weapon to fire indiscriminately in a crowd. A strong argument could be made for the "mere situs" test in those situations.