An Assault or Battery Away from Auto Does Not Arise Out of Use of Auto
Automobile liability coverage requires that for coverage to apply injuries to a third party must result from the use of the automobile. Unlike broad liability coverages like a Commercial General Liability policy or a homeowners policy, the insurance protection of an automobile liability policy requires a nexus to the automobile. Entering into an agreed judgment so that the insurer could be sued, resulted, as it often does, in a coverage dispute that should never have been filed had the parties consulted an insurance coverage lawyer before entering into a stipulated judgment.
In Indiana, the Court of Appeals decided, Estate of Curtis by Brade v. GEICO General Insurance Company, Court of Appeals of Indiana, — N.E.3d —-, 2017 WL 942813 (March 10, 2017) litigation resulted after Drake Matovich and Robert Curtis engaged in a physical altercation in a grocery store parking lot that resulted in Curtis being severely injured and eventually died as a result of the altercation.
Matovich and Curtis’s estate entered into an agreed judgment, pursuant to which Matovich admitted liability and assigned his claims against his automobile insurer, GEICO General Insurance Company (GEICO), to Curtis.
During the relevant period of time, Matovich was insured by GEICO under an automobile liability policy (the Policy) covering a 2004 Chevrolet truck. On September 17, 2009, Matovich was sitting in his parked truck in a parking lot. Another vehicle, being driven by Curtis, bumped into Matovich’s parked vehicle but did not stop.
Matovich pursued Curtis’s vehicle, stopped it and Matovich said, “You just hit my truck. I need you to stop.” Curtis exited his vehicle and approached Matovich aggressively, saying, “f*ck you” repeatedly. Curtis then chest bumped Matovich, who retreated to the rear of his truck, with Curtis following. Curtis made contact with Matovich again, and Matovich told Curtis to take it easy, stay back, and calm down. Curtis made contact with Matovich again. Matovich then put his hand out and said, “You need to stop and stay back.” Curtis made contact with Matovich, walking into his outstretched hand; Curtis’s eyes rolled up, his arms went limp, and he collapsed. Curtis eventually died and his Estate contends that his death stemmed from the altercation with Matovich.
On May 20, 2011, Curtis’s Estate filed a wrongful death suit against Matovich, alleging that Matovich’s recklessness and negligence had resulted in Curtis’s death. GEICO paid for Matovich’s defense but reserved its rights to later deny coverage. Following mediation, the parties entered into an agreement.
The Agreed Judgment, made the actions of Matovich, a clear and unambiguous battery, into a negligent act. The parties agreed that the stipulated negligence of Matovich caused Curtis’s injury. Matovich, then, avoiding paying the judgment, assigned any and all claims which he may have against his own automobile insurance company as a result of the matters contained within this litigation.
The trial court entered judgment in favor of Curtis, finding that Matovich owed damages to the Estate in the amount of $357,868.45 plus the costs of the action.
DISCUSSION AND DECISION
Although the parties each raise multiple arguments, the court foud one issue to be dispositive — whether Matovich’s actions were covered under the Policy as a matter of law. The Policy’s liability provision states that GEICO agreed to pay damages for which Matovich became legally obligated to pay because of bodily injury “arising out of the ownership, maintenance, or use of the owned auto….” The primary issue in the case is whether the altercation between Matovich and Curtis arose out of the “use” of Matovich’s vehicle.
An accident arises out of the ownership, maintenance, and use of a vehicle only if such ownership, use, or maintenance is the incident’s “efficient and predominating cause.” Indiana has intentionally adopted a narrower construction of the phrase than that used by courts in other jurisdictions. If a vehicle’s use is only tangentially related to an incident, coverage does not exist under such a clause.
When Matovich exited his vehicle to confront Curtis, engaging in a protracted and physical confrontation with the other man, he no longer had an active relationship with his vehicle. His vehicle no longer played a role in the incident; instead, it was merely an altercation between the two men. The reasonable expectations of the parties at the time they entered into the Policy would never have included coverage for a physical altercation that merely happened to occur near the covered vehicle.
he undisputed facts in this case show that coverage does not exist because the injuries to the Deceased did not arise out of Matovich’s ownership, maintenance or use of the insured motor vehicle within the meaning of the coverage clause of the policy. Matovich and the Deceased had already exited from their motor vehicles when Matovich’s physical contact of the Deceased caused the latter’s injuries.
Even prior to Matovich making physical contact, the Deceased “chest bumped” Matovich three (3) times. Matovich’s actions, therefore, did not arise out of the use or ownership or maintenance of the insured motor vehicle within the meaning of the Policy’s coverage term.
The injury occurred at a time and a distance away from the physical contact of the vehicles and after both Matovich and the Deceased exited their respective vehicles, and after a heated “conversation” between them. Matovich’s physical contact was not causally connected to the use of his motor vehicle and can not be construed to be within the contemplation of Curtis and Matovich to be covered under the Policy.
A battery – physical touching without right – is always an intentional act and could never be a negligent act regardless of the stipulation of the parties. Since no insurance policy covers intentional acts causing injury the parties attempted – with the cooperation of a trial court – to change an intentional act into a negligent act so that the estate of the deceased can recover from an insurer. They picked an auto insurer and, because the plaintiffs failed to consult insurance experts, lost anyway because the injury occurred away from, and not dealing with the use of the vehicle.
This article and all of the blog posts on this site summarize cases published by courts of the various states and the United States. The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant and expert witness specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 49 years in the insurance business.
Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.
Look to National Underwriter Company for the new Zalma Insurance Claims Library, at www.nationalunderwriter.com/ZalmaLibrary The new books are Insurance Law, Mold Claims Coverage Guide, Construction Defects Coverage Guide and Insurance Claims: A Comprehensive Guide
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