Whether Motor Vehicle in "Use" at Time of Accident Generally Question of Fact
The Georgia Court of Appeals recently issued two opinions addressing the question of when an incident arises out of the "use" of a motor vehicle for purposes of UM coverage.
In Mough v. Progressive Max Ins. Co., a man was shot and killed while riding his motorcycle. The motorcyclist was involved in a road-rage incident and was clipped by the driver of another vehicle. Id. at *1. After following the driver of the vehicle to her house, the motorcyclist was shot and killed by the driver's father. Id.
The motorcyclist's policy provided uninsured motorist coverage for injury arising out of the "use" of an uninsured motor vehicle. Id. at *1. The motorcyclist's parents argued that his death arose out of the "use" of the driver's vehicle because "without [the vehicle] leading [the motorcyclist] to the barrel of [the shooter's gun], the occasion for [the motorcyclist] to be shot and killed would not have occurred." Id.
The Georgia Court of Appeals noted that "'arising out of' does not equal proximate cause or require that the injury be directly caused by the use of a vehicle; only a 'slight causal connection' between the damages and the use of the vehicle is required." Id.
In cases involving shootings, the "general rule is that where a connection appears between the 'use' of the vehicle and the discharge of the firearm and resulting injury, such as to render it more likely that the one grew out of the other, it comes within the coverage defined." Id.
Despite the general rule, the court concluded that the death of the motorcyclist did not arise out of the "use" of the vehicle because the father was never in the vehicle during the course of events leading to the shooting, and the father's decision to shoot the motorcyclist was independent of the daughter's use of the vehicle. Id. at *3.
Conversely, in Dunn-Craft v State Farm Mut Ins Co., the plaintiff had exited her vehicle to check on what she believed was an injured animal or person when she was struck by an underinsured driver. The issue was whether the plaintiff was using her vehicle at the time of the accident such that she was entitled to stack UM coverage under O.C.G.A. § 33-7-11(a)(1). Id. at *2.
As the Georgia Court of Appeals discussed in Hays, whether an injury arises out of the "use" of a motor vehicle turns on a number of factors including (1) the proximity of the site of injury to the location of the vehicle; (2) the conduct that caused the injured party to be in a perilous situation, and (iii) whether the vehicle was being 'utilized' as a vehicle. Thus, the court concluded that a fact question remained regarding whether the plaintiff was using her vehicle at the time of the accident because she was not inside her vehicle at the moment she was struck. Id.
These cases are consistent with those decided by other Georgia courts regarding the "use" of a motor vehicle. In cases such as Mough where the insured was injured by conduct of a third party that bore no relationship to the vehicle, it is easy for courts to determine, as a matter of law, that the injury did not arise out of the "use" of the vehicle. On the other hand, where the insured is, for example, on the side of a roadway and is struck by another vehicle, it is highly unlikely that courts will be able to determine, as a matter of law, whether the injured party was using the vehicle at the time of the accident. In those situations, as in Dunn-Craft, a jury must determine whether, under the facts presented, the vehicle was in "use" at the time of the accident.