Washington Supreme Court Declines to Provide a Clear Answer Regarding UIM Coverage for Injuries Caused by Shots Fired From a Vehicle
January 15th, 2016
In a decision issued on January 14, 2016, the Washington Supreme Court confirmed that, in most situations, whether UIM coverage applies to injuries caused by a gun fired from an uninsured or underinsured motor vehicle is a question to be decided by a jury.
In Kroeber v. GEICO Insurance Co., No. 91846-5 (Wash. Jan. 14, 2016), the Federal District Court for the Western District of Washington certified two questions to the Washington Supreme Court. In the first question, the court was asked to decide whether a driver’s liability arises out of his use of an uninsured vehicle when he shoots a gun out the window of the vehicle before driving away and the bullet strikes and injures a pedestrian. The court declined to provide an answer. Instead, it established what it called “an analysis to determine whether an injury ‘arises out of’ the ownership, maintenance, or use of a vehicle when the vehicle itself or a permanent attachment thereto is not the instrument causing the injury.” The court’s analysis, however, falls far short of actually assisting insurance companies in resolving UIM coverage for claims involving shots fired from a vehicle.
The court first noted that the test for determining whether liability “arises out of” the use of a motor vehicle, as established by prior Washington case law, is something less than proximate cause, but not necessarily a “but for” test. After discussing various prior cases, the Supreme Court concluded:
Thus, the rule our cases have established is that some causal connection exists when the events leading up to an injury involve vehicle use, unless the vehicle is merely the coincidental location of the accident.
The reference to “the events leading up to an injury” could provide a gateway to UIM coverage for drive-by shootings. The events leading up to an injury caused by a drive-by almost always involve the driving of the car to the location, which clearly involves vehicle use. Conversely, the reference to the vehicle being “merely the coincidental location” tempers the initial message because a strong argument can be made that, in a drive-by shooting situation, the vehicle is simply the coincidental location of the accident. The court’s official answer to the first question is as follows and does not assist in clarifying the issue:
An injury “arises out of” vehicle use if some causal connection exists between a condition of, an attachment to, or some aspect of the vehicle’s use and the resulting injury. Conversely, an injury does not “arise out of” vehicle use when the vehicle is merely the situs of the accident.
The second question certified to the Supreme Court related to whether the shooter’s intent affects the coverage issue. Kroeber did not involve what is generally thought of as a “drive-by shooting.” Rather, the shooter in Kroeber always claimed he had simply fired his gun out the window in an attempt to “act like a cowboy” and did not intend to injure anyone. In the summary judgment briefing, the insured’s attorney attempted to re-frame the facts to appear more akin to a classic drive-by shooting, arguing the shooter did intend to cause injury. The trial court asked the Supreme Court to decide whether it is “material whether or not [the shooter] actually intended to harm anyone?” The Supreme Court reframed the question as being “whether the driver/shooter’s intent to fire the gun is legally significant for triggering UIM coverage.” Because the parties agreed that the incident was an “accident” from the UIM insured’s perspective, the court concluded “the shooter’s intent does not affect whether the injury ‘arose out of’ the use of the automobile.” The court, therefore, did not decide whether UIM coverage applies to a classic “drive-by” shooting.