An appellate court in Missouri has ruled that a woman who claimed that she was bitten by a dog in a parked pick-up truck was not entitled to uninsured motorist (“UIM”) benefits from her own insurance carrier because the alleged incident did not “arise out of the use” of an uninsured vehicle.
The Case
Cindy Walden, an employee at a bar and grill in Gladstone, Missouri, said that she was walking to her place of employment when she saw Kenneth Smith's pick-up truck in the parking lot. Ms. Walden said that Mr. Smith was sitting in the parked vehicle and had two pit bull terriers in the cab of his truck. She asserted that she approached the truck and stood outside the driver's side door when one of Mr. Smith's dogs lunged through the open driver's side window and bit her on the upper lip. According to Ms. Walden, Mr. Smith did not have insurance but she had several automobile liability policies with American Family Mutual Insurance Company.
Ms. Walden sued Mr. Smith and American Family. She claimed that Mr. Smith was negligent in that he failed to warn Ms. 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.
Ms. Walden also sought a declaratory judgment that she was entitled to coverage under the UIM provision in her American Family policies. She alleged that Mr. Smith was an uninsured motorist and “was engaged in the operation and use of his motor vehicle, was in the process of transporting his dog, and failed to contain said dog,” resulting in her injuries.
The trial court granted American Family's motion for summary judgment, and Ms. Walden appealed.
The Policies
The American Family policies provided:
PART III–UNINSURED MOTORIST COVERAGEWe 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 defined:
use
as:
ownership, maintenance, or use.The Appellate Court's Decision
The appellate court affirmed.
In its decision, the appellate court found that the trial court had not erred in granting summary judgment by concluding as a matter of law that Ms. Walden's dog bite injuries were not covered under American Family's automobile policies because the injuries did not “arise out of the use” of an uninsured vehicle.
In the appellate court's opinion, an accident causing injury did not “arise out of the use of a vehicle” when the vehicle was merely the “situs” or “locus” of an injury. Rather, the appellate court continued, for an accident causing injury to “arise out of the use” of a vehicle, the use of the vehicle must be consistent with the vehicle's nature as a vehicle, and must create a condition that contributes to cause the accident. The appellate court then stated:
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.
The appellate court then upheld the trial court's decision that Mr. Smith's vehicle was merely the “situs” of Ms. Walden's injuries, explaining that “the uncontroverted facts do not establish that [Mr.] Smith's use of his vehicle to transport his dogs created a condition that caused the dog to bite [Ms.] Walden.”
It concluded that it was “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.”
The case is Walden v. Smith, No. WD 75982 (Mo. Ct.App. April 15, 2014). Attorneys involved include: Nicholas J. Zevenbergen, Kansas City, MO, for appellant; Michael P. Waddell, Kansas City, MO, for respondent American Family.