Mr. Haygood said that he resisted but that at some point in the scuffle and while he actually was inside the vehicle he was shot in the back.

There was no evidence that the car was turned on, running, or driven before, during, or after the alleged assault.

Mr. Haygood, asserting that Mr. Cordova's car was uninsured, sought UIM coverage from his insurer, United Services Automobile Association ("USAA").

USAA denied the claim, concluding that Mr. Haygood's injuries had not arisen out of use of the uninsured car.

Mr. Haygood sued USAA.

The insurer moved for summary judgment, contending that Mr. Haygood's injuries had not arisen out of use of the uninsured vehicle.

The trial court agreed, concluding among other things that the alleged use of the car under the circumstances was not the kind of "normal use" required for coverage.

Mr. Haygood appealed.

The USAA Policy

The UIM portion of the USAA policy provided that USAA would pay damages arising out of the:

ownership, maintenance or use of the uninsured motor vehicle.

The Appellate Court's Decision

The appellate court affirmed.

In its decision, the appellate court first found that, under applicable New Mexico law, the trial court had properly decided that it had to consider "normal use" when deciding whether UIM benefits were payable to Mr. Haygood.

The appellate court then ruled that the trial court had not erred in determining that Mr. Haygood "failed to identify a normal use sufficiently causally connected to his injuries and, as such, concluding coverage was not warranted."

In the appellate court's view, Mr. Haygood's alleged "restraint against and inside the vehicle" was not a "normal use." The appellate court reasoned that although use for transportation satisfied the "normal use" requirement, "use of a parked car as a platform for an object or weapon" did not.

Simply put, the appellate court found nothing in the stipulated facts that suggested that Mr. Cordova "was acting as a motorist" and nothing supported an inference "that the kind of injury-facilitating use at issue here, wholly in the absence of some transportation-, motoring-, or operation-related purpose, presented the kind of hazard for which our uninsured motorist statute was designed to offer protection."

The appellate court also determined that Mr. Cordova's alleged storage of contraband in the vehicle, even if it might "have had some connection to the assault," did not constitute a normal use. The appellate court reasoned that nothing suggested that this alleged use "involved or depended on transportation, operation, or a specialized feature of the vehicle," and nothing suggested that Mr. Cordova "was acting as a motorist."

Although the appellate court acknowledged that motorists frequently store belongings in vehicles, and that storage, under certain circumstances, might "present a qualifying use," nothing suggested that the use of the car as storage facilitated Mr. Cordova's alleged assault or that he even contemplated the alleged assault in engaging in this use.

Accordingly, the appellate court affirmed the district court's grant of summary judgment on Mr. Haygood's UIM claims.

The case is Haygood v. United Services Automobile Association, No. A-1-CA-36158 (N.M. Ct. App. Sep. 5, 2019). Attorneys involved include: The Law Offices of Rachel E. Higgins, Rachel E. Higgins, Mary L. Higgins, Albuquerque, NM; Wray and Girard, P.C., Katherine A. Wray, Albuquerque, NM, for Appellant. Rodey, Dickason, Sloan, Akin & Robb, P.A., Leslie McCarthy Apodaca, Albuquerque, NM, for Appellees.