De Zafra v. Farmers Insurance
270 Or. App. 77
| Or. Ct. App. | 2015Background
- Plaintiff was a passenger in a Farmers-insured car and was seriously injured by gunfire from a vehicle driven by an unknown assailant (a drive-by shooting). The assailant’s liability insurer denied coverage, so the assailant’s vehicle was treated as an uninsured motor vehicle under ORS 742.504.
- Plaintiff sued Farmers for uninsured motorist (UM) benefits under ORS 742.504(l)(a); Farmers denied coverage and moved for summary judgment. Plaintiff filed a cross-motion for summary judgment.
- The trial court relied on this court’s earlier decision in Worldwide Underwriters v. Jackson and granted Farmers’ motion, concluding the injury did not “arise out of” the use of the uninsured vehicle. Plaintiff appealed.
- Farmers argued Jackson’s “direct cause” analysis controls; plaintiff relied on the Oregon Supreme Court’s decision in Carrigan (construing similar statutory language in the PIP statute) to argue statutory UM coverage should be interpreted broadly.
- The Court of Appeals held that statutory language controls, Carrigan’s reasoning applies to the UM statute’s phrase “arising out of,” and the trial court erred in granting Farmers’ summary-judgment motion; but the court affirmed denial of plaintiff’s cross-motion because plaintiff had not yet proved the assailant’s legal liability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff’s gunshot injuries "arise out of" use of an uninsured vehicle under ORS 742.504(l)(a) | Carrigan’s broad construction of similar PIP language ("resulting from" use of vehicle) controls and requires UM coverage here | Jackson’s line-of-causation/direct-cause analysis governs; gunshots—not vehicle—were the direct cause, so no coverage | Court adopts Carrigan’s reasoning: statutory phrase "arising out of" is not limited to direct cause; coverage may exist and trial court erred in granting insurer SJ |
| Whether Jackson (this court’s prior UM drive-by decision) remains binding | Statutory mandate and Supreme Court precedent undermine Jackson’s policy-based direct-cause rule | Stare decisis and Jackson control similar facts involving drive-by shooting | Court rejects adherence to Jackson because Jackson did not address the statutory UM mandate and Carrigan (supreme-court decision) changed legal context |
| Whether plaintiff was entitled to summary judgment declaring coverage (i.e., showed legal entitlement to recover from the uninsured motorist) | Facts alleged suffice to declare coverage | Plaintiff failed to prove that the assailant was the owner/operator or legally liable (no affidavits/proved liability) | Court affirms denial of plaintiff’s cross-motion for summary judgment; factual proof of the uninsured motorist’s liability remains required |
Key Cases Cited
- Worldwide Underwriters Ins. Co. v. Jackson, 121 Or. App. 292, 855 P.2d 166 (Or. Ct. App. 1993) (interpreting UM policy language to require a direct-cause connection in a drive-by shooting)
- Carrigan v. State Farm Mut. Auto. Ins. Co., 326 Or. 97, 949 P.2d 705 (Or. 1997) (Supreme Court holds PIP coverage extends to gunshot injuries that result from use of a motor vehicle; rejects a direct-only causation restriction)
- Oakridge Comm. Ambulance v. U.S. Fidelity, 278 Or. 21, 563 P.2d 164 (Or. 1977) (discusses broader meaning of "arising out of" versus "caused by")
- Davis v. State Farm Mut. Ins. Co., 264 Or. 547, 507 P.2d 9 (Or. 1973) (vehicle use found sufficiently connected to intentional injury for coverage)
- Jordan v. Lee, 76 Or. App. 472, 709 P.2d 752 (Or. Ct. App. 1985) (discusses causation and remoteness in vehicle-related injury coverage)