Mar 1st, 2016

Injury “Arising Out of” Use of an Uninsured/Underinsured Vehicle


Mark Tyson

In both Washington and Oregon, uninsured and underinsured motorist coverage must be offered in auto insurance policies. Such coverage must include damages that “arise out of” the ownership, maintenance, or use of the underinsured/uninsured vehicle. In a routine car accident involving an underinsured/uninsured vehicle, damages will almost certainly be found to “arise out of” the use of the vehicle.

But consider a less routine scenario. Hostile words are exchanged at a bar. One of the men involved in the exchange leaves the bar and climbs into his friend’s uninsured truck. When one of the women involved subsequently leaves the bar, the man shoots her from his position in the driver’s seat of the truck.  Do the woman’s injuries “arise out of” the use of the uninsured truck?

This scenario was recently addressed by the Washington Supreme Court in Kroeber v. Geico Ins. Co.[i]  Although the Court did not decide the merits of the case, it did establish a rule for determining whether damages “arise out of” the use of a vehicle.  The Court explained that an injury “arises out of” vehicle use so long as some causal connection is present between a condition of, an attachment to, or some aspect of a vehicle and the resulting injury.  Notably, the Court rejected the argument that the vehicle must be the “direct cause” of the injury.  Instead, the Court opined that “some causal connection exists when the events leading up to an injury involve vehicle use, unless the vehicle is merely the coincidental location of the incident.”

The Court cited as persuasive authority a recent Oregon Court of Appeals decision, De Zafra v. Farmers Ins. Co.[ii]  The De Zafra court noted that, in order to protect the insurance-buying public, the phrase “arise out of” should be liberally interpreted when considering whether a causal connection exists.  More specifically, the De Zafra court observed that the phrase “arise out of” is repeatedly described as being broader than the phrase “caused by” the use of a vehicle.

After discussing the De Zafra decision, the Washington Supreme Court noted that, as in Oregon, Washington insurance statutes are to be liberally construed for the benefit of the public.  This is a good indicator that Washington and Oregon courts will take a very similar, if not identical, approach to determining whether damages “arise out of” the use of an underinsured/uninsured vehicle.  Courts are likely to find causation even where the underinsured/uninsured vehicle is only minimally involved, so long as it is not merely the coincidental location of the accident.  As a consequence, the number of UIM/UM claims for which auto insurers in Washington and Oregon must provide coverage will likely increase.

[i] 2016 Wash. LEXIS 114 (January 14, 2016).

[ii] 270 Or. App. 77, 346 P.3d 652 (2015).