72 Ohio St. 3d 350 | Ohio | 1995
We are compelled to hold in this case that where an insured is kidnapped in her own automobile, and incurs all bodily injury outside and away from the automobile, the insured is not covered within the uninsured motorist provisions of her automobile insurance policy which limits coverage to bodily injuries “caused by accident” and which “arise out of the ownership, maintenance or use of the uninsured motor vehicle.”
This qourt has dealt at least twice before with cases involving similar issues. In Kish v. Cent. Natl. Ins. Group of Omaha (1981), 67 Ohio St.2d 41, 21 O.O.3d 26, 424 N.E.2d 288, plaintiffs decedent’s vehicle was struck from behind while stopped at a traffic signal. The decedent exited his car to confer with the other driver, who emerged from his car with a shotgun. The decedent was shot and killed attempting to get back into his car. The decedent’s widow made an uninsured motorist claim under her insurance policy, which, like the policy in this case, required that the bodily injury must “arise out of the ownership, maintenance, or use of the uninsured motor vehicle.” Kish at 49, 21 O.P.3d at 31, 424 N.E.2d at 293.
In addressing the possibility of recovery under that policy language, this court held:
“A ‘but for’ analysis is inappropriate to determine whether recovery should be allowed under uninsured motorist provisions of the * * * policy. The relevant inquiry is whether the chain of events resulting in the accident was unbroken by the intervention of any event unrelated to the use of the vehicle. The application of this standard to the instant facts leads us to conclude that the intentional, criminal act of the murderer was an intervening cause of injury unrelated to the use of the vehicle.” Kish at 50, 21 O.O.3d at 32, 424 N.E.2d 294.
In Howell v. Richardson (1989), 45 Ohio St.3d 365, 544 N.E.2d 878, plaintiff was shot while an occupant in a vehicle which was fired upon by the driver of another vehicle. The plaintiff sought recovery under the uninsured motorist provision of the policy of the owner of the vehicle in which he was injured. This court did not distinguish the case from Kish, even though both the tortfeasor and
“[I]t is our conclusion that bodily injury to an insured resulting from the discharge of a firearm by a tortfeasor is not encompassed within the terms of a policy of insurance which limits coverage to injuries ‘caused by accident resulting from the ownership, maintenance or use of an automobile.” Howell at 369, 544 N.E.2d at 883.
In Howell, this court explained its holding in Kish, reiterating that whether the act of the tortfeasor is negligent or intentional is not determinative of recovery, but that the key factor is the instrumentality used by the tortfeasor to cause the injury:
“The focus of the holding was not the mental state of the tortfeasor but the instrumentality causing death. Accordingly, had the death in Kish resulted from the intentional ramming from behind of decedent’s automobile by the tortfeasor’s vehicle, recovery would have been allowed.” Howell at 369, 544 N.E.2d at 882.
Thus, the state of mind of the tortfeasor is irrelevant — it is how he causes the injury that is important. In this case, however, the appellate court focused on the intentions of the tortfeasor, pointing out that he “intended to commit harm upon the appellee,” that “[i]t was obviously his intent * * * to kidnap the plaintiff-appellee and to remove her from the public street to the abandoned house where the assaults took place,” and that “he intended to effectuate his eventual assault by using the plaintiff-appellee’s automobile as a manner of transport.”
That the assailant intended to harm Mrs. Lattanzi and that he intended to use her automobile to take her to a place where he could harm her is not disputed, nor is it relevant. While the assailant may not have been able to achieve his nefarious purpose without the use of Mrs. Lattanzi’s car, a “but for” analysis is inappropriate. Kish at 50, 21 O.O.3d at 32, 424 N.E.2d at 294. At the time the assailant removed Mrs. Lattanzi from her automobile, she had not yet suffered an injury. Any injury incurred by Mrs. Lattanzi after she and her abductor left the car was not achieved through use of the automobile as an instrumentality. Once leaving the automobile, the assailant’s own brutal, criminal conduct became the only relevant instrument of injury.
Therefore, the Lattanzis’ injuries are not covered under the Travelers policy. Uninsured motorist provisions compensate for injuries caused by motor vehicles; they typically do not compensate for, or protect from, the evil that men do. We therefore reverse the judgment of the court of appeals.
Judgment reversed.
