Aryainejad v. Economy Fire & Casualty Co. , 278 Ill. App. 3d 1049 ( 1996 )

PRESIDING JUSTICE BRESLIN

delivered the opinion of the court:

The plaintiff, Sirus Aryainejad, filed a claim for uninsured motorist coverage under his automobile insurance policy with the defendant, Economy Fire and Casualty Company (Economy). The trial court found that Aryainejad was not entitled to uninsured motorist benefits because the causal relationship between his injuries and the ownership, maintenance or use of the uninsured motor vehicle was insufficient. We hold that uninsured motorist coverage does apply in this case because Aryainejad’s injuries resulted from an activity that presented the type of risk the parties reasonably contemplated would be covered by the policy. Accordingly, we reverse.

James Duffy was driving on Interstate 57 near Kankakee when he ran out of gasoline. Duffy left his vehicle to walk to a gas station. While Aryainejad was driving on 1-57, he observed Duffy walking toward him in the middle of a traffic lane on the interstate. Aryainejad lost control of his vehicle in an attempt to avoid hitting Duffy and sustained serious injuries in the ensuing crash. Duffy admitted that he had been drinking prior to the accident.

Upon learning that Duffy was uninsured, Aryainejad filed a claim for uninsured motorist coverage under his automobile insurance policy with Economy. When Economy denied his claim, Aryainejad filed the instant suit in the circuit court.

The uninsured motorist provision of Aryainejad’s policy provided that "the owner’s or operator’s liability for these damages must arise out of the ownership, maintenance, or use of the uninsured motor vehicle.” The parties agreed that the sole issue was whether the accident "arose out of Mr. Duffy’s ownership, maintenance, or use of his vehicle,” and they each filed motions for summary judgment. The trial court found that the accident was unrelated to Duffy’s ownership, maintenance or use of his vehicle primarily because Duffy’s vehicle did not come into physical contact with Aryainejad’s vehicle. Accordingly, the court granted Economy’s motion for summary judgment.

"When parties file cross-motions for summary judgment, they agree that only a question of law is involved and invite the court to decide the issues based on the record. Andrews v. Cramer, 256 Ill. App. 3d 766, 769, 629 N.E.2d 133, 135 (1993). On appeal from the entry of summary judgment, the standard of review is de novo. Andrews, 256 Ill. App. 3d at 769, 629 N.E.2d at 135.

Insurance policies are subject to the same rules of construction that apply to other types of contracts. Morgan v. CUNA Mutual Insurance Society, 242 Ill. App. 3d 1027, 611 N.E.2d 112 (1993). The main objective in construing an insurance policy is to ascertain and enforce the intention of the parties as expressed in the agreement. Milwaukee Guardian Insurance, Inc. v. Taraska, 236 Ill. App. 3d 973, 602 N.E.2d 70 (1992). Where the terms in an insurance policy are unambiguous, they must be given their plain and ordinary meaning. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 607 N.E.2d 1204 (1992). Insurance policies must be liberally construed in favor of the insured. United States Fidelity & Guaranty Co. v. Jiffy Cab Co., 265 Ill. App. 3d 533, 637 N.E.2d 1167 (1994).

Many courts throughout the country have construed insurance policies with language almost identical to the policy at issue here, and some general principles have been uniformly applied. The words "arising out of” have been interpreted broadly to mean originating from, incident to, or having a causal connection with the ownership, maintenance or use of the vehicle. See 6B J. Appleman & J. Appleman, Insurance Law & Practice § 4317, at 360-63 (rev. ed. 1979) (and cases cited therein). Thus, for example, an injury may arise out of the ownership, maintenance or use of a vehicle despite the fact that the vehicle was not being operated at the time the injury was sustained. Westchester Fire Insurance Co. v. Continental Insurance Cos., 126 N.J..Super. 29, 312 A.2d 664 (1973); 12 Couch on Insurance 2d § 45.58, at 293-94 (rev. ed. 1981).¹ In addition, to determine whether an injury arose out of an uninsured motorist’s use of his vehicle, courts must consider what the uninsured motorist was doing when the injury occurred, as well as his purpose and intent. See State Farm Mutual Automobile Insurance Co. v. Powell, 227 Va. 492, 499, 318 S.E.2d 393, 397 (1984); see also 6B J. Appleman & J. Appleman, Insurance Law & Practice § 4317, at 367 (rev. ed. 1979).

A majority of the courts that have analyzed this issue have held that there must be a causal relationship between the injury and the ownership, maintenance or use of the vehicle for coverage to apply. E.g., Stuen v. American Standard Insurance Co., 178 Ill. App. 3d 986, 534 N.E.2d 208 (1989). Unfortunately, no uniform causation standard or test for resolving this issue has been adopted. Instead, the causation tests may generally be divided into two categories: the "but for” test, and the more restrictive tests.

The states that have adopted a "but for” test find that coverage applies if the injuries would not have occurred "but for” the ownership, maintenance or use of the vehicle. E.g., Eichelberger v. Warner, 290 Pa. Super. 269, 434 A.2d 747 (1981). Under this broad test, courts have held that coverage applies if there is any causal nexus between the injuries and the ownership, maintenance or use of the vehicle. E.g., Government Employees Insurance Co. v. Novak, 453 So. 2d 1116 (Fla. 1984).

Other courts, however, have rejected the "but for” test because it often leads to coverage in cases where the only connection between the vehicle and a person’s injuries is that the vehicle transported the person to the location where the injury occurred. See Hawkeye-Security Insurance Co. v. Gilbert, 124 Idaho 953, 866 P.2d 976 (1994). These courts have created more restrictive causation tests that do not provide coverage where the vehicle’s relation to the injuries is incidental or fortuitous. See Gilbert, 124 Idaho at 956, 866 P.2d at 979 (holding that causal connection must be more than incidental or fortuitous); Foss v. Cignarella, 196 N.J. Super. 378, 482 A.2d 954 (1984) (holding that there must be a "substantial nexus” between the injury and the use of the vehicle); Indiana Lumbermens Mutual Insurance Co. v. Statesman Insurance Co., 260 Ind. 32, 291 N.E.2d 897 (1973) (holding that the use of the vehicle must be the "efficient and predominating cause” of the accident).

While a majority of the courts have applied one of the foregoing causation tests, a large minority have taken an alternative approach. These courts afford coverage where the injury is the result of an activity that presented the type of risk that the parties reasonably contemplated would be covered by the policy. See State Farm Mutual Automobile Insurance Co. v. Powell, 227 Va. 492, 318 S.E.2d 393 (1984); Tomlin v. State Farm Mutual Automobile Liability Insurance Co., 95 Wis. 2d 215, 290 N.W.2d 285 (1980); Westchester Fire Insurance Co. v. Continental Insurance Cos., 126 N.J. Super. 29, 312 A.2d 664 (1973); Commercial Union Insurance Co. of New York v. Hall, 246 F. Supp. 64 (E.D.S.C. 1965). These courts have resolved this issue by determining whether the alleged "use” is reasonably consistent with the inherent nature of the vehicle. Lawver v. Boling, 71 Wis. 2d 408, 415-16, 238 N.W.2d 514, 518 (1976). Use that is consistent with a vehicle’s inherent nature extends beyond the actual operation of the vehicle to include activities that are reasonable and foreseeable consequences of the use of the vehicle. Hawkeye-Security Insurance Co. v. Gilbert, 124 Idaho 953, 960, 866 P.2d 976, 983 (1994). According to one court:

"The inquiry should be whether the negligent act which caused the injury, although not foreseen or expected, was in the contemplation of the parties to the insurance contract a natural and reasonable incident or consequence of the use of the automobile, and thus a risk against which they might reasonably expect those insured under the policy would be protected.” Westchester Fire Insurance Co. v. Continental Insurance Cos., 126 N.J. Super. 29, 38, 312 A.2d 664, 669 (1973).

Illinois courts have not yet adopted any of the foregoing tests. While one court expressly applied the "but for” test (Toler v. Cpuntry Mutual Insurance Co., 123 Ill. App. 3d 386, 462 N.E.2d 909 (1984)), others have avoided it without adopting an alternative test (Stuen v. American Standard Insurance Co., 178 Ill. App. 3d 986, 534 N.E.2d 208 (1989); Woodside v. Gerkin Food Co., 130 Ill. App. 3d 501, 474 N.E.2d 776 (1985)). Therefore, we must either select the test that we feel is the most appropriate or create a new test.

While we agree that the inquiry into whether an injury arose out of the ownership, maintenance or use of a vehicle should include some elements of causation, the tests that focus solely on causation have proven to be difficult to apply. For example, in Florida, where courts apply the "but for” test, courts faced with almost identical fact patterns have achieved inconsistent results. Compare Pena v. Allstate Insurance Co., 463 So. 2d 1256 (Fla. App. 1985) (holding that injury arose out of the ownership, maintenance or use of vehicle where insured was shot in his vehicle), with Allstate Insurance Co. v. Famigletti, 459 So. 2d 1149 (Fla. App. 1984) (holding that injury did not arise out of the ownership, maintenance or use of vehicle where insureds were shot in their vehicle). Moreover, terms such as "substantial nexus” and "efficient and predominating cause” are not useful because the extent of the causal connection between an injury and the ownership, maintenance or use of a vehicle simply cannot be determined with any degree of precision. For these reasons, we believe that the tests that focus solely on causation do not provide an adequate analytical framework for resolving this frequently litigated issue. The better approach is to eschew such tests and follow the courts that afford coverage where the injuries resulted from an activity that is within the risk reasonably contemplated by the parties. We therefore adopt this approach and apply it to the case at bar.

The parties agree that Duffy left his vehicle and proceeded to walk to a gas station. Vehicles frequently break down or run out of gas. When this occurs, drivers must often leave their vehicles to find help, thereby creating a risk to themselves and to other drivers who may lose control of their vehicles while taking evasive action. Thus, Duffy’s act of walking on the interstate after his car ran out of gas and the risk he posed to other drivers were reasonable and foreseeable consequences of the use of his vehicle. Accordingly, we hold that Duffy’s actions were within the risk for which the parties to the contract reasonably contemplated there would be coverage, and thus, Aryainejad’s injuries arose out of Duffy’s use of his vehicle.

Economy, however, argues that Duffy’s automobile merely transported him to the location where the accident occurred and that walking on the interstate was an independent act which was unrelated to his ownership, maintenance or use of the vehicle. See United States Fidelity & Guaranty Co. v. Jiffy Cab Co., 265 Ill. App. 3d 533, 637 N.E.2d 1167 (1994) (holding that vehicle must do more than create the atmosphere of hostility that leads to an altercation); Hawkeye-Security Insurance Co. v. Gilbert, 124 Idaho 953, 959, 866 P.2d 976, 982 (1994) (holding that injuries from an assault were unrelated to the ownership, maintenance or use of the vehicle because the insured’s acts of leaving the car and assaulting a bicyclist were independent acts).

We agree that an automobile must do more than merely transport a person to the site where an accident occurs for coverage to apply and that an assault by the driver of a vehicle is an act which is independent and unrelated to the ownership, maintenance or use of a vehicle. Regardless of whether a vehicle creates a condition that leads to an assault, injuries resulting from an assault are not a normal or reasonable consequence of the use of a vehicle. In other words, because physical altercations are not reasonably consistent with the inherent nature of the vehicle, they are not risks for which the parties to automobile insurance contracts would reasonably contemplate there would be coverage. On the other hand, walking down the highway after a vehicle breaks down of runs out of gas is a reasonable consequence of the use of a vehicle.

Economy argues that Duffy’s decision to walk in the traffic lane instead of on the shoulder was an independent act that broke the chain of causation. However, the fact that Duffy did not walk on the shoulder does not take his activity outside the risk for which the parties contemplated there would be coverage. Regardless of the manner in which he walked, Duffy’s actions originated from and were incident to the use of his vehicle. Both his act of walking to a gas station and the risk he posed to other drivers were reasonable and foreseeable consequences of the use of his vehicle despite the fact that he did not walk on the shoulder. Cf. Benner v. Bell, 236 Ill. App. 3d 761, 602 N.E.2d 896 (1992) (holding that a negligent act which is foreseeable is not an intervening cause). Accordingly, we reject Economy’s contention that Duffy’s automobile merely transported him to the location where the accident occurred and that his act of walking on the interstate was unrelated to his ownership, maintenance or use of the vehicle.

For the foregoing reasons, the judgment of the circuit court of Kankakee County is reversed, and summary judgment is entered in favor of Aryainejad.

Reversed.

LYTTON, J., concurs.

1 The dissent points out that in Apcon Corp. v. Dana Trucking, Inc., 251 Ill. App. 3d 973, 623 N.E.2d 806 (1993), the court held that "use” of a vehicle, for purposes of an insurance policy, is limited to the actual operation of the vehicle. According to the dissent, Apcon controls here. The issue in Apcon, however, was completely different from the issue in the case at bar. The insurance policy in Apcon provided that anyone "using” the covered vehicle with the owner’s permission was insured under the policy. The issue was whether a person who was standing outside the vehicle directing the driver was "using” the vehicle. The issue in the case at bar is not whether Duffy was "using” his vehicle at the time the accident occurred. Rather, the issue is whether the accident "arose out of’ Duffy’s use of his vehicle. Therefore, Apcon has no impact on our analysis.