Walden v. SmithWalden v. Smith
Cindy Wаlden (“Walden”) appeals from the trial court’s entry of summary judgment in favor of American Family Mutual Insurance Company (“American Family”). The trial court found that Walden’s American Family automobile policies did not afford uninsured motorist coverage for injuries Walden sustained when a dog bit her through an open window of a vehicle because her injuries did not “arise out of the use” of the vehicle. We affirm.
Factual and Procedural Background
On September 28, 2006, Walden, an employee at a bar and grill in Gladstone, Missouri, was walking to her place of employment. She saw Kenneth Smith’s (“Smith”) pick-up truck in the parking lot. Smith was sitting in the parked vehicle and had two pit bull terriers in the cab of his truck. Walden approached the truck and stood outside the driver’s side door. One of Smith’s dogs lunged through the open driver’s side window and bit Walden on the upper lip. Smith did not have insurance. However, Walden had several automobile liability policies with American Family.
Walden filed suit against Smith and American Family. She clаimed that Smith was negligent in that he failed to warn Walden of the harm posed by the dangerous propensities of the dog, failed to restrain or otherwise prevent the dog from biting her, and failed to restrict or otherwise prevent people from coming into contact with the dog. Walden’s petition also sought a declaratory judgment that she was entitled to coverage under the uninsured motorist provision in her American Family policies.
The American Family policies each provide:
PART III — UNINSURED MOTORIST COVERAGE
We will pay' compensatory damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle. The bodily injury must be sustained by an insured person and must be caused by accident and arise out of the use of the uninsured motor vehicle.
(Emphasis in policies.) The policies do not define the phrase “arise out of.” The policies define “use” as “ownership, maintenance, or use.”
American Family filed a motion for summary judgment on the declaratory judgment action. American Family asserted as uncontroverted facts the facts set forth above. American Family argued that the uncontroverted facts established as a matter of law that Walden’s injuries did not “arise out of the use” of Smith’s uninsured vehicle and established only that Smith’s vehicle was the “situs” of the injury.
Walden admitted all of the uncontrovert-ed facts asserted in American Family’s motion for summary judgment, and generally alleged that her injuries arose out of the use of Smith’s vehicle. Walden did not identify any issues of fact in genuine dispute that prevented the entry of judgment on the issue of coverage. In fact, Walden filed her own motion for summary judgment which mirrored the uncontroverted
Walden’s injuries arose out of Smith’s use of his automobile as a dog cage. But for Smith’s use of his vehicle as a cage for his dogs, the dogs would not have been at the parking lot, and they would not have bitten Walden. Therefore, Walden’s injuries arose out of Smith’s use of his vehicle as a dog cage.
[L.F. p. 73; see also L.F. p. 88].
The parties thus agreed that the uncon-troverted facts permitted the entry of judgment as a matter of law on the issue of coverage. They disagreed, however, about the legal effect of the uncontrovert-ed facts.
On April 9, 2010, the trial court entered an order granting American Family’s motion for summary judgment and denying Walden’s motion for summary judgment.
[Walden] has not asserted any facts which establish any injury caused by the uninsured motorist’s use of the uninsured motor vehicle itself. [Walden’s] injury was caused by the dog bite. There are no facts which allege the motor vehicle was the instrumentality of the injury. There are no facts that assert that [Smith] was negligent in the inherent “use” of his vehicle. The automobile was not involved in the injury. [Walden] was not in the automobile at the time of the injury. There is nothing about [Smith’s] use of the truck that caused the attack and nothing about [Smith’s] use of the automobile which caused [Walden’s] injury. The vehicle was not an active accessory to the injury and was not an essential or even significant element that lead [sic] to the injury. The allegations of negligence against [Smith] are totally independent from the “use” of the vehicle itself. The motor vehicle was the fortuitous location of the injury, not an integral part of the proximate cause of the injury.
In this case, the uninsured motor vehicle simply provided the situs of the injury. Missouri law requires the vehiсle be more than the “situs ” of an injury to recover under these circumstances.
.... [Walden’s] injury did not arise out of the use of the uninsured motor vehicle. Accordingly, there is no coverage under the policies issues [sic] by [American Family].
On November 28, 2012, the trial court entered a judgment against Smith on Wal
Walden filed this timely appeal from the trial court’s entry of judgment in favor of American Family.
Standard of Review
The grant of summary judgment is a question of law we review de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp.,
In granting summary judgment, the trial court interpreted the phrase “arising out of the use” in American Family’s policies. “The interpretation of an insurance policy is a question of law” that we review de novo. Seeck v. Geico Gen. Ins. Co.,
Analysis
The sole issue presented on appeal is whether the trial court erred in granting summary judgment by concluding as a matter of law that Walden’s dog bite injuriеs were not covered under American Family’s automobile policies because the injuries did not “arise out of the use” of an uninsured vehicle. Walden’s point relied on argues that because Smith was using his uninsured motor vehicle as a “moving dog kennel,”
No Missouri court has addressed whether injuries caused by a dog when it is being transported in a motor vehicle “arise out of the use” of the vehicle as to support coverage under an automobile liability policy. When interpreting language in an insurance policy, our courts generally begin by determining “whether the policy
(i) “Arising out of” requires a causal relationship but not proximate cause
Schmidt v. Utilities Insurance Co.,
The insurer argued that the plaintiffs injuries did not “arise out of’ unloading the truck. Id. at 183. Rather, according to thе insurer, “the efficient, direct and proximate cause of the injury was the separate, independent, and intervening negligent acts of the truck drivers in placing the blocks on the sidewalk.” Id. The insurer thus argued that “arising out of’ requires proximate cause between an injury and the use of a vehicle.
Our Supreme Court disagreed. It noted that the “policy, by its terms, does not require a finding that the injury to [plaintiff] was directly and proximately caused by the use of the automobile.” Id. Rather, “[t]he words of the policy are ‘caused by accident and arising out of the use of the automobile.’ ” Id. (emphasis added). The Court observed:
The words ‘arising out of ... use’ are very broad, general and comprehensive terms. The insurer made no attempt to limit the plain, usual and ordinary meaning of the terms used. We find nothing in the policy requiring that the ownership, maintenance, or use of the automobile shall be the direct and ‘efficient cause of the injuries sustained,’ as appellant contends. The words used, we think, are much broader than the words ‘caused by’....
Id. Thе Court then held that the term “arising out of’ should be afforded its plain and ordinarily understood meaning of “ ‘originating from’ or ‘having its origin in,’ ‘growing out of or ‘flowing from.’ ” Id. at 184. Schmidt thus clearly held that “arising out of’ requires proof of a causal connection, though the standard of causation is broader than “proximate cause.” Cameron Mut. Ins. Co. v. Ward,
The phrase “arising out of’ has been similarly defined in other types of insurance policiеs. In Colony Insurance Co. v. Pinewoods Enterprises, Inc.,
The phrase “arising out of’ is more expansive than the words “caused by” used in some policies. When the former phrase is used in a liability policy, an unbroken chain of events need not be established but rather a simple causal relationship must exist between the accident or injury and the [operations] of the insured.7 The causation standard is not elevated to the strict “direct and proximate cause” standard of general tort law. ■
Id.
The same result was reached in Capitol Indemnity Corp. v. 1405 Associates, Inc.,
Missouri courts have also consistently interpreted the phrase “arising out of’ when it has been used, but not defined, by the Missouri legislature.
In summary, Missouri courts consistently define the phrase “arising out of’ to require a causal relationship, described as “originating from” or “having its origins in” or “growing out of’ or “flowing from” the object or circumstance referenced in the policy or statute. Here, the referenced object or circumstance is the “use” of a vehicle. We thus turn our attention to the judicial definition of “use” in automobile liability policies.
(ii) Unless “use” is otherwise defined by the policy, “use” refers broadly to the employment of a vehicle for some purpose or object of the user and includes any аct that assumes the ability to exercise supervisory control or guidance over the vehicle’s movement
“Use” is defined in American Family’s policies (and in many automobile policies) as “ownership, maintenance, or use.” Defining “use” by reference to “use” has required our courts to determine the “uses” of a vehicle other than “ownership” and “maintenance” which will support coverage.
In Allstate Insurance Co. v. Hartford Accident & Indemnity Co., the omnibus clause in an automobile liability policy afforded coverage to the named insured and “any other person using such automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission.”
In Pope v. Stolts, the Eastern District similarly held that “use ... [goes] beyond the narrow meaning of the direct mechanical operation performed by the driver [and] encompass[es] the broader concept of employing or putting the vehicle into one’s service by an act which assumes at anytime — with the consent of the owner or agent — the supervisory control or guidance of its movements.”
Thus, unless the facts of a case implicate a specific policy definition of “use,”
iii. “Arising out of the use of a vehicle” requires the vehicle’s particular use to create a condition that contributes to cause the accident resulting in injurg
The application of the judicial definitions of “arising out of’ and “use” in tandem to determine whether the requisite causal relationship exists between an accident causing injury and the use of a vehicle turns on the factual circumstances in each case. Pope,
First, an accident causing injury does not “arise out of the use of a vehicle” when the vehicle is merely the “situs” or “locus” of an injury. Ward,
Second, an injury may “arise[ ] out of a covered use ... even if the vehicle did not itself cause the injury or the injury did not occur while the plaintiff or another was driving the vehicle.” Esmond v. Bituminous Cas. Corp.,
What the required causal relationship cannot and need not be to support coverage for an injury “arising out of the use” is thus well established in Missouri. What the causal relationship must be in order to support coverage has proven a bit more elusive to capture in a succinct and clearly understood legal principle. Some Missouri cases have held that the vehicle must be the “instrumentаlity” causing the injury. See Lemmons v. Prudential Property & Cas. Ins. Co.,
Missouri courts have also described the “arising out of’ nexus as requiring an injury arising out of an “inherent use” of the vehicle. Ward,
The requirements that a vehicle’s use be the “instrumentality” of an injury, and that an injury arise оut of an “inherent use of a vehicle” simply reinforce that a causal relationship must exist between injury and use of a vehicle. For an accident causing injury to “arise out of the use” of a vehicle, the purpose for which the vehicle is being employed must be consistent with the vehicle’s inherent nature, and must create a condition which contributes to cause the accident. “ ‘Automobile insurance contracts protect against liability for accidents arising out of the ‘use’ of vehicle (sic) but they cannot be held to protect against liability for accidents where the use of the automobile was not connected with the accident or the creation of a condition that caused the accident.’ ” Bituminous Cas. Corp.,
Missouri cases have thus consistently determined whether an accident causing injury “arises out of the use” of a vehicle by evaluating the extent to which the particular use of the vehicle contributed to сreate a condition that caused the accident at issue. In Suburban Service Bus Co. v. National Mutual Casualty Co., a passenger was injured when a bus driver discharged a fire extinguisher on a bus to control unruly passengers.
In Bituminous Casualty Corp., plaintiff was injured when a truck mired in mud was disengaged by a bulldozer that then hit the plaintiff. The plaintiff sought coverage under the truck policy, arguing his injuries arose out of the use of the truck because it was being pushed by the bulldozer.
Similarly, in Whitehead, a passenger in a deputy sheriffs car was shot when another passenger and the deputy sheriff got into a shoot-out inside the vehicle.
In contrast, in Cameron Mutual Insurance Co., a rifle lying on the seat of a pickup truck accidentally discharged injuring a person standing outside the truck.
In Pope, plaintiff was injured jump starting a neighbor’s vehicle. The plaintiff was leaning over the hood of the stalled vehicle preparing to attach jumper cables to another one of the neighbor’s vehicles when the jump vehicle was hit by an uninsured motorist who crossed from the west bound into the east bound lanes.
In Steelman, two men in a vehicle who were on their way to visit a girlfriend purposefully discharged a gun from their vehicle.
In Brown v. Shelter Mutual Insurance Co., plaintiff appealed the grant of summary judgment denying coverage because a decedent’s injury did not arise out of the use of a vehicle.
Finally, in Ward, plaintiffs decedent was killed in his vehicle by a drive-by shooter from another vehicle. Plaintiffs decedent sought uninsured motorist coverage, and the trial court granted summary judgment in favor of the insurer because the decedent’s injuries did not arise out of use of the uninsured vehicle.
Though not involving automobile liability policies, it is noteworthy that in the other scenarios discussed, supra, where the phrase “arising out of’ has been defined, our courts have applied a consistent standard to determine whether the required causal relationship has been established. In Capitol Indemnity, the insurer claimed that a former employee’s claims for injuries under a commercial liability policy were excluded from coverage because they arose out of the employment-related practices of the insured employer.
In summary, “[n]ot every tortious act occurring inside a vehicle constitutes use of that vehicle for imposing liability under an automobile liability policy.” 6B Appeleman et al., Insurance Law and Practice With Forms section 4317 (Supp.2011). Instead, for an accident causing injury to “arise out of the use” of a vehicle, the usе of a vehicle must be consistent with the vehicle’s nature as a vehicle, and must create a condition that contributes to cause the accident. If the uncontroverted facts establish only that an injury occurred while a vehicle was being used, then the injury does not arise out of the use of the vehicle as a matter of law. See Bromi,
When applied to the instant case, the aforesaid discussion requires us to affirm the trial court’s grant of summary judgment in favor of American Family.
(v) The uncontroverted facts establish that Smith’s vehicle was merely the “si-tus” of Walden’s injuries
It is Walden’s burden to establish that her injuries are covered under the uninsured motorist provisions in her American Family policies. See generally Oates v. Safeco Ins. Co.,
The trial court found that the un-controverted facts could not establish the required causal relationship between the accident causing Walden’s injury and Smith’s use of his vehicle. We agree. The uncontroverted facts establish that Smith was using his vehiclе to transport his dogs.
This conclusion is underscored by Walden’s summary judgment pleadings where Walden alleged that:
But for Smith’s use of his vеhicle as a cage for his dogs, the dogs would not have been at the parking lot, and they would not have bitten Walden. Therefore, Walden’s injuries arose out of Smith’s use of his vehicle as a dog cage.
[L.F. p. 73; see also L.F. p. 88]. Plainly, Walden’s “but-for” assertions establishes a temporal and spatial relationship between Smith’s use of his vehicle and Walden’s injury, but not a causal relationship between the use of the vehicle and the creation of a condition that caused one of Smith’s dogs to bite Walden.
The trial court thus properly concluded that Walden:
has not asserted any facts which establish any injury caused by the uninsured motorist’s use of the uninsured motor vehicle itself. [Walden’s] injury was caused by the dog bite. There are no facts which allege the motor vehicle was the instrumentality of the injury. There are no facts that assert that [Smith] was negligent in the inherent “use” of his vehicle. The automobile was not involved in the injury.... There is nothing about [Smith’s] use of the truck that caused the attack and nothing about [Smith’s] use of the automobile which caused [Walden’s] injury. The vehicle was not an active accessory to the injury and was not an essential or even significant element that lead [sic] to the injury. The allegations of negligence against [Smith] are totally independent from the “use” of the vehicle itself.
Indeed, the uncontroverted facts established only that “human conduct [Smith’s negligence in failing to warn Walden or to restrain his dog] wholly independent of the operation or use of the vehicle caused the [dog to bite Walden].” Cameron Mut. Ins. Co.,
Walden summarily argues in her Brief that Smith’s use of his vehicle was a factor in contributing to cause Walden’s injury. Walden baldly asserts in her point relied on that Smith’s use of his vehicle as a “moving dog kennel” “facilitat[ed] the dog attack.” [Apрellant’s Brief, p. 5]. She argues in her Brief with no reference to the record that “the physical structure and nature of Smith’s pickup truck was instrumental in allowing the dog to be at head level and because Smith completely rolled down his driver’s side window the motor vehicle facilitated the dog attack on Walden.” [Appellant’s Brief, p. 12]. She argues in her Brief with no reference to the record that “animals are living, animate creatures and can at times be unpredictable.” [Appellant’s Brief, p. 11]. These are factual assertions. They were not raised by Walden as properly supported facts in genuine dispute in the proceedings before the trial court. Rule 74.04(c)(2). They cannot be raised for the first time on appeal.
More to the point, a cursory review of the record reveals that Walden’s true objective before the trial court was not to establish the “causal relationship” required by Missouri law, but instead to advocate for a change in Missouri law. In the trial court, Walden relied exclusively on Smith’s use of his vehicle as a dog cage standing alone to support the conclusion that her injuries “arose out of’ the use. Walden cited to a few dog bite cases from other jurisdictions,
Walden’s intent to advocate for a change in Missouri law continues on appeal. Walden argues that because the dictionary defines “use” as “employing] for ... a
Wе are not inclined to reject the established lineage of Missouri cases which define “arising out of’ to require a causal relationship, and not merely a temporal or spatial relationship, and which thus require a vehicle’s use to be consistent with its nature as a vehicle, and to create a condition that contributes to cause an accident resulting in injury.
Point denied.
Conclusion
The trial court’s entry of summary judgment is affirmed.
All concur.
Notes
. Walden had three American Family automobile policies and sought to stack the uninsured motorist coverage available under each.
. Walden's assertion that her injuries arose out of Smith’s use of his vehicle is not an assertion of fact, but is instead an assertion of Walden’s opinion that her dog bite injuries were covered because they arose out of the use of Smith’s uninsured vehicle. The resolution of that issue is a question of law. Ward v. Int'l Indem. Co.,
. After the competing motions for summary judgment were argued, but before they were ruled, the trial court permitted Walden to file a first amended petition which amended the negligence cause of action against Smith. The declaratory judgment claim asserted against American Family was not amended. The amended petition had no impact on the trial court’s ability to resolve the legal issue of coverage framed by the parties' competing summary judgment motions.
. The manner in which Walden has described Smith's use of his vehicle has varied. In her petition, Walden alleges that Smith used his vehicle to "transport” his dogs. In her summary judgment pleadings, Walden alleges that Smith used his vehicle for “carriage and confinement” of his dogs, and as a "dog cage.” In her point on appeal and during oral argument, Walden alleges that Smith usеd his vehicle as a "moving dog kennel.” The varying nomenclature is immaterial. It is uncontroverted that Smith had his dogs in his vehicle with him when one of the dogs bit Walden. The issue is whether Walden's dog bite injuries arose out of this use of Smith's vehicle as to support coverage — a question of law. Ward,
. An “omnibus clause” is defined as "[a] provision in an automobile-insurance policy that extends coverage to all drivers operating the insured vehicle with the owner’s permission.” Black's Law Dictionary 1197 (9th ed.2009).
. We address die significance of the policy's definition of “use” to include loading and unloading in greater detail, infra.
. In contrast to Schmidt, where the causal connection had to be between the injury and the use of the vehicle (which the policy in Schmidt defined to be loading and unloading), the causal connection in Colony Insurance had to be between the injury and the operations of the insured. Colony Insurance observed that although it was relying on Missouri cases that interpreted the phrase "arising out of” in the "automobile context ... the reasoning is equally applicable to the ‘arising out of operations' language” it was interpreting.
. Principles of statutory construction require Missouri courts to afford words used by the legislature their plain and ordinary meaning if possible. Utility Serv. Co. v. Dept. of Labor & Indus. Relations,
. Overruled on other grounds by Hampton v. Big Boy Steel Erection,
. As we noted, supra, in discussing Schmidt, and as we discuss, infra, in footnote 11, many automobile liability рolicies often provide in the "bodily injury coverage” provision of the policy that "use” specifically includes "loading and unloading” of the insured vehicle. Thus, if an accident involves the loading or unloading a vehicle, the policy definition of "use” controls. In such cases, a court would simply substitute "loading and unloading of a vehicle” for the phrase "use of the vehicle” as it assesses whether the required causal relationship exists to support coverage.
. We remind that the broad judicial definition of "use” is not always implicated. For example, if an accident involves the "ownership” or "maintenance” of a vehicle, and if the policy defines "use” to specifically include “ownership” and "maintenance,” then a court will necessarily consider whether an accident giving causing injury "arises out of” the ownership or maintenance of the vehicle. As a further example, if an accident involves the loading and unloading of a vehicle, and if the applicable policy defines use to include “loading and unloading,” courts necessarily consider whether the accident causing injury arose out of the "loading or unloading” of the vehicle — an activity which by its very nature need not involve the vehicle itself. That was precisely the circumstance in Schmidt, where the plaintiff’s injuries were deemed to “arise out of” the loading and unloading of a truck that was not even in the vicinity when the plaintiff tripped and fell.
. When coverage is sought under an uninsured motorist provision the relevant "use” to which the court must direct its inquiry is the use of the uninsured vehicle. See Esmond,
. As noted, supra, Walden wordsmith’s this use from time to time, periodically referring to Smith's car as a “dоg cage,” as used to “carriage and confine” the dogs, and as a "moving kennel.”
. We express no opinion as to whether the unsupported factual assertions raised for the first time on appeal would have been sufficient to establish a material issue of fact in genuine dispute that would have prevented the entry of summary judgment on the issue of coverage had they been properly raised in the trial court. Further, the import of our ruling today is not to suggest that there is no set of factual circumstances involving a dog bite and the use of a vehicle that would fall within the "arising out of the use" language. Instead, our ruling merely requires what Missouri courts have always required in these circumstances — factual allegations that invoke a "causal relationship” between the "use” a vehicle and the accident causing injury.
. E.g., Transamerica v. Fanners Ins. Exch.,
. It is noteworthy that numerous non-jurisdictional cases not mentioned by Walden have denied coverage in dog bite cases employing a definition of "arising out of the use” of a vehicle that is virtually indistinguishable from Missouri law. See Or. Mut. Ins. Co. v. Nat'l Gen. Ins. Co.,