“Use” of a Vehicle is not a Use Completely Foreign to a Vehicle’s Inherent Purpose
Amy was sexually assaulted by Cody Triebs inside the cab of Triebs’ pickup truck and on the truck’s tailgate. At issue in this appeal is whether insurance policies issued by 1st Auto & Casualty Insurance Company and Progressive Universal Insurance Company provide uninsured motorist (UM) coverage for Amy’s injuries. In 1st Auto & Casualty Insurance Company v. A. P., a minor, R. P. and J. P. v. Cody Triebs, Progressive Universal Insurance Company, No. 2020AP1745, Court of Appeals of Wisconsin, District III (July 20, 2021) the Wisconsin Court of Appeal resolved the dispute after the circuit court granted summary judgment to 1st Auto and Progressive, concluding their respective policies do not provide UM coverage because Amy’s injuries from the sexual assault did not arise out of the ownership, maintenance, or use of an uninsured motor vehicle.
Triebs, a friend of Amy’s family, was staying with her family during deer hunting season in November 2016. While there, he slept in a shed on the family’s property. Amy was thirteen or fourteen years old at the time, and Triebs was twenty or twenty-one.
Amy testified that Triebs drove his pickup truck to a secluded parking lot. After putting his truck in park, and while they were still inside the truck’s cab, Triebs grabbed and kissed Amy, who said “no” and tried to push him away. Triebs ignored her and began to sexually assault her. Triebs then dragged Amy to the tailgate of the truck, where he continued to sexually assault her.
During his deposition testimony, Triebs admitted having sexual contact with Amy on the night in question. According to Triebs, however, the sexual contact was initiated by Amy and began while they were driving in his truck. Triebs confirmed that after he parked the truck, he had sexual contact with Amy both in the cab and in the bed of the vehicle. Triebs testified he was aware at the time of the sexual contact that he was an adult and Amy was a minor, and that it was therefore illegal for him to have sexual contact with her.
At the time of the sexual assault, Triebs was covered by an automobile insurance policy issued by Progressive, and Amy’s parents had an automobile insurance policy issued by 1st Auto. Both of those policies included UM coverage.
1st Auto sued seeking a declaratory judgment that its policy did not provide UM coverage for Amy’s injuries stemming from the November 2016 sexual assault.
Both 1st Auto and Progressive then moved for summary judgment, contending that their respective policies did not provide UM coverage because Amy’s injuries did not arise from the ownership, maintenance, or use of an uninsured motor vehicle. 1st Auto also argued that there was no UM coverage under its policy because Amy’s injuries were not caused by an accident and because of the “fortuity principle”-i.e., the principle “that insurance covers fortuitous losses and that losses are not fortuitous if the damage is intentionally caused.” The circuit court granted both insurers’ summary judgment motions.
The interpretation of policy language presents a question of law that an appellate court must review independently. An insurance policy is construed to give effect to the intent of the parties, expressed in the language of the policy itself, which is interpreted as a reasonable person in the position of the insured would understand it.
Amy contends the undisputed facts show that she is entitled to UM coverage under both the Progressive and 1st Auto policies because she seeks damages for bodily injuries that were sustained by an insured, caused by an accident, and that arose out of the use of an uninsured motor vehicle. In response, both Progressive and 1st Auto argue that Amy’s injuries did not arise out of the use of an uninsured motor vehicle, and 1st Auto also argues that her injuries were not caused by an accident.
The Court of Appeal found it unnecessary to determine if Amy’s injuries were caused by an accident, but concluded that the circuit court properly granted both insurers summary judgment with respect to UM coverage because Amy’s injuries did not arise from the use of an uninsured motor vehicle. Neither the Progressive policy nor the 1st Auto policy defines the term “use.”
To determine whether an injury arose from the use of a vehicle, “Use” in this context “means the use of a vehicle as such and does not include a use which is completely foreign to a vehicle’s inherent purpose.” [Tomlin v. State Farm Mut. Auto. Liab. Ins. Co., 95 Wis.2d 215, 225, 290 N.W.2d 285 (1980).]
The use of an auto must have some foundation in the inherent nature of the vehicle. Activities that constitute use of a vehicle can range beyond ordinary transportation, but they generally involve some closely related activity. Moreover, it is not enough that a vehicle was the physical situs of an injury, that the injury occurred incidentally to the use of the vehicle, or that the vehicle was used to transport the injured person to the place where the injury occurred. In addition, for an injury to arise out of the use of a vehicle, the accident producing the injury must have some causal relationship to the inherent use of the vehicle.
Applying these principles to the instant case the appellate court concluded that Amy’s injuries did not arise out of the use of Triebs’ uninsured motor vehicle. Although the precise details of the sexual assault are disputed, all parties agree that Triebs sexually assaulted Amy both inside the cab of his truck and on the truck’s tailgate. The Court of Appeal concluded that sexual assault is not reasonably consistent with-and, in fact, is completely foreign to-the inherent nature of a vehicle.
Sexual assault is not closely related to a vehicle’s inherent nature as a means of transportation, nor is it otherwise involved in the constitution or essential character of a vehicle. In this case, when Triebs sexually assaulted Amy inside the cab of his pickup truck and on the truck’s tailgate, he was not using the truck as a vehicle. The sexual assault was not related to the truck’s inherent use as a means of transportation, and it was not a reasonable and natural consequence of that inherent use.
Ultimately, the court concluded that it would be ludicrous to conclude that the parties to an automobile insurance policy would expect that policy to provide UM coverage for injuries caused by a sexual assault committed inside of or on an uninsured motor vehicle. Such conduct is not reasonably consistent with-and is, in fact, completely foreign to-the inherent use of a vehicle.
Although the facts of this case are abhorrent, the appellate court refused to construe an insurance policy to cover risks that the insurer did not contemplate or underwrite and for which it did not receive a premium. Because Amy’s injuries did not arise from the use of an uninsured motor vehicle, the circuit court properly granted summary judgment to Progressive and 1st Auto with respect to UM coverage.
The rape of a minor is clearly an intentional act. However, since the facts of the rape were disputed the court avoided the intentional act exclusion and the lack of fortuity, and simply found no coverage because rape of a minor could never be considered the intended and inherent use of a motor vehicle.
© 2021 – Barry Zalma
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant 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 54 years in the insurance business.
He is available at http://www.zalma.com and email@example.com. Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award. Over the last 53 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.
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