IN COURT OF APPEALS
Illinois Farmers Insurance Company,
Mariese Marvin, et al.,
Filed January 17, 2006
Washington County District Court
File No. C4-04-4433
Kathleen M. Loucks, Timothy J. Crocker, Gislason & Hunter, LLP, 9900 Bren Road East, Suite 215E, Minnetonka, MN 55343 (for appellant)
Daniel T. Cody, Brendan J. Cody, Cody Law Offices, 810 Degree of Honor Building, 325 Cedar Street, St. Paul, MN 55101 (for respondents)
Considered and decided by Lansing, Presiding Judge; Hudson, Judge; and Huspeni, Judge.
1. There is no genuine issue of material fact regarding whether respondent was an occupant of a motor vehicle for purposes of underinsured motorist coverage when respondent was crushed between two cars as she was loading objects into the back of a vehicle and the upper half of her body had just been inside the vehicle mere moments before the impact.
2. Although the insured vehicle is not the direct cause of injury, the injuries are not so far removed from the use of that vehicle, when its bumpers directly contributed to the injuries sustained, to deny underinsured motorist coverage on that vehicle.
On appeal from summary judgment for respondent, appellant argues that the district court erred in finding respondent an occupant of a vehicle insured by appellant for the purposes of underinsured motorist coverage. Appellant further argues that the district court erred in finding that respondent’s injuries arose out of the maintenance and use of the insured vehicle as a vehicle. Because we conclude that the district court did not err in finding that respondent was entitled to recover underinsured motorist benefits, we affirm.
Respondent Mariese Marvin was injured as a result of being pinned between an automobile owned by Tonya Weigel and one owned by Joseph Betz. Weigel is an insured of appellant Illinois Farmers Insurance Company.
On the day of her injury, respondent accompanied Weigel to the house of Weigel’s father, Joseph Betz, to pick up some toys. Upon arrival, Weigel drove her Explorer to the back garage and parked. Respondent and Weigel exited the vehicle and began placing large toys in the Explorer’s rear cargo area. At one point, respondent leaned into the cargo area of the Explorer and pushed toys back to make room for one more toy. As she slid off of the cargo floor onto the ground, Betz’s vehicle backed into the Explorer, crushing respondent’s legs between the bumpers of the two automobiles.
Betz and Weigel were the only witnesses at the scene, although neither of them actually saw the impact occur. Weigel testified that the accident happened less than five minutes after she and respondent exited the Explorer, and at the moment of impact, her back was turned to the Explorer. However, when Weigel heard the impact, she turned to see respondent standing upright, crushed between the Betz vehicle and the Explorer. After Betz moved his car forward, Weigel lowered respondent to the ground. Respondent sustained compound fractures in her right and left knees and right ankle as a result of the accident.
Respondent settled a claim against Betz, exhausting his liability coverage, but the settlement did not fully compensate for her damages. She then submitted the remainder of her claims to appellant, Weigel’s insurer, for underinsured coverage, and requested arbitration as required by appellant’s policy. In response, appellant instituted a declaratory-judgment action and moved for summary judgment, arguing that respondent was not covered under the policy on the Explorer because she was not an “occupant” of that vehicle at the time she was injured. Respondent also moved for summary judgment and submitted an affidavit in which she stated that she was climbing out of the Explorer’s cargo area at the time of impact.
During the motion hearing, appellant argued that the affidavit submitted by respondent with her summary judgment contradicted an earlier affidavit in which she described herself as a pedestrian. Appellant’s attorney stated, however, that “even if the Court were to consider her affidavit as true, and even if we would concede for purposes of today’s argument only that there is no fact issue, it simply doesn’t matter, . . . because they cannot prove maintenance of their vehicle as a vehicle.” The district court granted respondent’s motion for summary judgment and this appeal follows.
I. Was respondent an “occupant” for purposes of underinsured motorist coverage?
II. Did respondent’s injuries arise from the maintenance or use of a motor vehicle?
On appeal from a
grant of summary judgment, this court asks two questions: (1) whether there are any genuine issues of
material fact and (2) whether the district court erred in its application of
the law. State by Cooper v. French, 460 N.W.2d 2, 4 (
The moving party
has the burden to prove that there is an absence of any genuine issue of
material fact. Sauter v. Sauter, 244
judgment is supported by affidavits, depositions, etc., the nonmoving party
cannot rely on assertions in its pleadings to create a fact issue. Ahlm v.
liability is determined by the insurance contract as long as the insurance contract
does not omit coverage required by law or violate applicable statutes. Kelly
v. State Farm Mut. Auto. Ins. Co., 666 N.W.2d 328, 331 (
Betz’s vehicle was inadequately insured to fully compensate respondent,
respondent can look to Weigel’s policy for coverage if respondent is an
“additional insured” as defined by both
Appellant asserts that whether respondent was an occupant raises an issue of material fact because respondent never claimed she was an “occupant” of the Explorer prior to the affidavit submitted with her motion for summary judgment. During the discovery process, respondent described herself as a pedestrian in an answer to an interrogatory, and hospital records describe the accident as one involving a “pedestrian versus car.” In her summary judgment affidavit, however, she states that just before the collision she was leaning forward into the rear of the vehicle and was in the process of sliding off the cargo floor onto the ground. Further, she states that it was her intent to take her seat in the passenger side and leave the area, being transported again by Weigel’s Explorer to return home.
We conclude that respondent’s description of herself as a pedestrian and the description in the hospital records are not sufficient to raise a question of genuine fact. In response to the interrogatory asking respondent to describe damages sustained to her vehicle, she replied that vehicle damage was inapplicable, as she was a “pedestrian” and the only property damage was to her clothing. Likewise, the hospital records referring to respondent as a “pedestrian” cannot reasonably be construed as legally binding for purposes of insurance coverage. Further, even under the facts most favorable to appellant, respondent was in the process of loading the vehicle, and indisputably the upper half of her body had been in the vehicle mere moments before the accident.
The party opposing
the summary judgment cannot rely on general averments in resisting summary
judgment. Ahlm, 274
determination that respondent was an occupant of the Explorer at the time she
was injured does not end our inquiry.
Courts have long required some causal connection between the occupancy
of the vehicle and the injury sustained.
Allied Mut., 552 N.W.2d at 563. We must therefore also determine whether
respondent’s injury arose out of the maintenance or use of the Explorer as
“Whether an injury arose out of the maintenance or use of a
motor vehicle is a question of law.” Kemmerer
v. State Farm Ins. Co., 513 N.W.2d 838, 842 (Minn. App. 1994), review
denied (Minn. June 2, 1994); see also Continental
W. Ins. Co. v. Klug, 415 N.W.2d 876, 877-78 (Minn. 1987) (stating that the determination of whether an
accident arose out of the maintenance or use of a motor vehicle is a legal
issue that turns on the particular facts presented in each case). We review the issue de novo. Auto-Owners
Ins. Co. v. Forstrom, 684 N.W.2d 494, 497 (
Minnesota No-Fault Act, “maintenance or use” for purposes of underinsured-motorist
(UIM) coverage is defined as “[m]aintenance or use of a motor vehicle as a
vehicle.” Minn. Stat. § 65B.43,
subd. 3 (2004). This definition,
however, does not include “conduct in the course of loading and unloading the
vehicle unless the conduct occurs while
occupying, entering into or alighting from it.”
In determining whether respondent’s injuries arose from the maintenance or use of the Explorer, we apply the three-part maintenance-and-use analysis set forth in Klug, 415 N.W.2d at 878. In that case, the court stated:
The first consideration is the extent of causation between the automobile and the injury. . . . [T]he vehicle must be an “active accessory” . . . “something less than proximate cause in the tort sense and something more than the vehicle being the mere situs of the injury.” . . .
If a court finds the requisite degree of causation, it should next determine whether an act of independent significance occurred, breaking the causal link between “use” of the vehicle and the injuries . . . .
If a court finds the requisite degree of causation and no intervening independent act, it must consider one final inquiry. . . . [T]he court must determine what type of “use” of the automobile was involved. . . . [C]overage should exist only for injuries resulting from use of an automobile for transportation purposes.
Klug, 415 N.W.2d at 878 (citations omitted). Appellant concedes that the use of the Explorer was for transportation. Thus, the third Klug factor is satisfied, and we need only determine whether the Explorer was an active accessory in causing the injury and whether there was an act of independent significance breaking the causal link between the use and the injuries.
A. Active Accessory
For a vehicle to
be an active accessory does not require that it actively cause the damages; rather, the requirement is satisfied if the
injury occurred because the vehicle’s use is actively connected with the injury. Fire & Cas. Ins. Co. of
In struggling with
the question of when a vehicle is an active accessory and when it is not,
courts have denied coverage when, as the mere situs of the injury, the vehicle
had nothing to do with the injury itself.
In Allied Mut., the claimant,
standing a short distance away from the insured vehicle, was struck by an
oncoming vehicle as she waited for the insured vehicle to be unlocked. 552 N.W.2d at 562. In denying coverage, the court reasoned that
the claimant was not an occupant at the time of injury, and that the vehicle “was
simply present: it was parked, unoccupied and unmoving.”
Appellant urges that the result of Allied Mut. requires a denial of coverage here because the Explorer, too, was parked and unmoving. While appellant’s argument may have superficial persuasiveness, the cessation or absence of movement alone has been held not to preclude coverage. Kern v. Auto Owners Ins. Co., 526 N.W.2d 409, 411 (Minn. App. 1995); see also Medicine Lake Bus Co. v. Smith, 554 N.W.2d 623, 626 (Minn. App. 1996) (finding coverage when bus passenger’s injuries resulted from an accidental fall while alighting from the bus, notwithstanding that bus was stationary when the fall occurred).
We conclude that the unique facts of Allied Mut. do not compel a similar result under the unique facts of this case. Unlike respondent here, who was using the vehicle at the time of impact, the claimant in Allied Mut. was not making any use of the vehicle at the time of the accident, nor did the vehicle contribute in any way to the injuries. Here, respondent was using the Explorer to load toys, and the bumper of the Explorer was the object against which respondent was pinned.
In Marklund v. Farm Bureau Mut. Ins. Co.,
400 N.W.2d 337 (
In Tlougan v. Auto-Owners Ins. Co., 310
N.W.2d 116 (
State Farm Fire & Cas. Co. v. Strope,
481 N.W.2d 853 (Minn. App. 1992), also involved a vehicle found to be a mere
situs of the injury. In that case, a dog
had moved onto the floor of the vehicle and become entangled with gun
casings. Strope, 481 N.W.2d at 854. As
the driver placed his hand on the handle of a gun casing, the rifle
accidentally discharged and a bullet struck a passenger.
In reviewing cases
where coverage has been found, the active involvement of the vehicle is admittedly
more easily identified than here. In Kern,the injured party had parked her vehicle in the parking lot of a grocery
store. 526 N.W.2d at 410. As she walked toward her vehicle after
shopping, she was struck by some insulated siding that blew out of a nearby
pickup. The court determined that the pickup
was an active accessory to the injury because it was designed to transport materials
in the pickup bed; it was a natural and reasonable consequence for materials to
blow out of the truck.
Other cases have noted that so long as the vehicle is being used as a motor vehicle during the time of injury, the vehicle is more than a mere situs for the accident. See, e.g., N. River Ins. Co. v. Dairyland Ins., 346 N.W.2d 109, 113-14 (Minn. 1984) (finding plaintiff’s injury arose from the use or maintenance of motor vehicle when injury occurred from attempt to remove tarpaulin attached to top of trailer); Galle v. Excalibur Ins. Co., 317 N.W.2d 368, 370 (Minn. 1982) (finding coverage when plaintiff was injured by part of the vehicle that malfunctioned but denying coverage for two other injuries incurred while lifting heavy objects inside the vehicle); VanGuilder v. Allstate Ins. Co., 494 N.W.2d 901, 902 (Minn. App. 1993) (finding injury that occurs when occupant in moving vehicle is accidentally struck by a rock propelled from a lawn mower arises out of the use of a motor vehicle for purposes of no-fault insurance coverage), review denied (Minn. Mar. 16, 1993).
In arguing that
the Explorer is not an active accessory, appellant contends that because the
Explorer was simply the vehicle against which respondent was pinned, it was
nothing more than a passive accessory to the accident and was, therefore,
merely the situs of the injury. Appellant
relies on Short v.
Similarly, appellant relies on State Farm Mut. Auto. Ins. Co. v. O’Brien, 380 F. Supp. 1279 (D. Minn. 1974), for the proposition that the vehicle to which an injured person is pinned is only a passive instrument. The decision in O’Brien, however, turned on whether the vehicle was being used in a manner contemplated by the statute. Coverage was denied because a six-year-old child’s act of turning on the ignition causing the car to surge backwards and pin the mother against the garage was not “use” for purposes of coverage under the automobile policy. O’Brien, 380 F. Supp. at 1282. It is not necessary for this court to answer the “use” question here.
relies on Auto-Owners Ins. Co. v. Great
W. Cas., 695 N.W.2d 646 (Minn. App. 2005), review denied (
The only issue in Auto-Owners was which of two insurers
would be liable for payment of no-fault insurance benefits. 695 N.W.2d at 648. It was undisputed that the injured person was
not the driver or occupant of either
vehicle at the time of the accident, and therefore the analysis centered on
whether the injury resulted from the maintenance or use of the
automobile-transport trailer or from the maintenance or use of the stalled
Appellant urges that pursuant to Auto-Owners, the vehicle that is, in the tort sense, the direct “cause” of the injury should be the only vehicle liable. There are factors in this case, however, that prompt a different analysis. Further, we are called upon here to answer a question that was not present in Auto-Owners. The coverage at issue in Auto-Owners was basic economic loss benefits. Here we are concerned with liability coverage on one vehicle (the Betz vehicle) and underinsured motorist coverage on another vehicle (the Explorer), and must answer the question of whether and when and under what circumstances the exhaustion of the former permits invocation of the latter. It is undisputed in this case that damages may exceed the liability limits of the Betz vehicle. There was no discussion in Auto-Owners of whether damages exceeded basic economic loss benefit limits and what other insurance might be invoked to cover excess damages. Also, respondent here, unlike the injured person in Auto-Owners, has been found to be an occupant of the Explorer and was actively using that vehicle as a motor vehicle at the time of her injury. We conclude that Auto-Owners does not compel a decision here similar to that reached in that case.
In the present case, recognizing how very fine are the factual distinctions to be made in deciding the “active accessory” prong of the Klug test, we conclude that the involvement of the Explorer was less than proximate cause but more than mere situs, and that it was an active accessory. Being pinned against the bumpers of the Explorer actively contributed to crushing respondent’s lower extremities. The hospital admission notes indicate that her “severe bilateral lower extremity injuries [arose] from [car bumpers] when she got caught between two cars . . . with [her] legs trapped between.” Had the Explorer not been where it was, respondent may have suffered other injuries, but we do not believe she would have suffered the ones that she did.
B. Act of Independent Significance
contested Klug factor must also be
resolved in respondent’s favor if coverage under appellant’s policy is to be
invoked. Was there an act of independent
significance that broke the causal chain?
An act of independent significance occurs where an independent
tortfeasor intercedes to cause the injury.
See Lindsey v. Sturm, 436
N.W.2d 788, 790 (Minn. App. 1989) (stating that it is a fundamental principle
of tort law that an intentional or criminal act, such as a battery, will break the causal chain because no
reasonable standard of care would require a person to be on guard against such acts); see also Edwards v. State Farm Mut. Auto. Ins. Co., 399 N.W.2d 95,
98 (Minn. App. 1986) (finding causal chain between injury and use of vehicle
broken when victim was raped in automobile), review denied (Minn. Mar. 13, 1987); Wieneke v. Home Mut. Ins. Co., 397 N.W.2d 597, 598-99 (
caselaw instructs that negligent actions are not considered to be acts of
independent significance. The supreme
court has established that the purpose of UM or UIM is to “protect against the
risk that the motorist who injures the purchaser is uninsured (or underinsured)
and unable to pay the damages the purchaser is entitled to recover under tort
law.” McIntosh v. State Farm Mut. Auto. Ins. Co., 488 N.W.2d 476, 479 (
The recent case of
Dougherty v. State Farm Mut. Ins. Co., 699
N.W.2d 741 (
We recognize that the coverage being sought in Dougherty was no-fault benefits under Minn. Stat. § 65B.42(1) (2004), and that the coverage being sought here is underinsured motorists benefits. Should a distinction be made? The dissent in Dougherty points to the language of Minn. Stat. § 65B.46 (2004), which indicates that coverage is to be available for injuries “arising out of maintenance or use of a motor vehicle.” Dougherty, 699 N.W.2d at 747. Thus, even though a question of “fault” (intoxication of the driver) could not be considered in Dougherty, and while fault—at least on the part of Betz—is clearly present here, is that distinction sufficient to compel us to conclude that Dougherty offers no support to respondent’s argument that Betz’s act was not sufficient to constitute an act of independent significance breaking the causal chain?
strenuously that Betz’s act did break the causal chain. To the extent that appellant relies upon
cases involving intentional torts, those cases are distinguishable. It is understandable that the consequences of
those intentional torts—at least to the extent those consequences are
manifested in invoking uninsured and underinsured motorists’ coverage—should
not fall upon the motoring public. Here,
unquestionably, Betz was negligent. He
did not intentionally back his vehicle into respondent. We conclude that to determine that his
negligence constituted an act of independent significance would be
contradictory to the purpose and policy of the UIM statute, which is to provide
the insured (respondent here) with financial protection against an underinsured
motorist whose negligence results in injury.
Nygaard v. State Farm Mut. Auto.
In determining that respondent was an occupant of the Explorer, that the Explorer was an active accessory, and that the negligence of Betz was not an act of independent significance breaking the causal link, we conclude that the purpose of the No-Fault Act, rather than being violated, is being effected.
Coverage for injuries sustained during the loading of an automobile is not precluded by the fact that the automobile was stationary at the time of the accident. The victim was an occupant of the vehicle and was in the process of using the vehicle as a motor vehicle at the time of impact. Because the insured automobile directly contributed to the victim’s specific injuries, the automobile is more than a mere situs of the accident, but is instead an active accessory. Finally, the tortfeasor’s act of impacting respondent and pinning her against the bumper of the insured vehicle is not an act of independent significance breaking the causal chain. Consequently, we affirm the district court’s grant of summary judgment to respondent.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
Mariese and husband Jeffrey Marvin are the respondents, but because Mariese is the one injured, for purposes of this appeal she is referred to as respondent.
This specific argument is only summarily raised in appellant’s brief, but it was presented to the district court.