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McCauley v. Metropolitan Property and Casualty Insurance Co.12/24/2001
terial facts are in dispute, the only issue before us is the proper interpretation of the UIM insuring provisions of the Metropolitan policy. Interpretation of an insurance policy is a question of law that we review de novo. In construing an insurance contract, we will give the policy 'a fair, reasonable, and sensible construction consistent with the understanding of an average person purchasing insurance.'
The insuring provision at issue states that Metropolitan 'will pay bodily injury damages, caused by an accident arising out of the ownership, maintenance, or use of an underinsured highway vehicle .' Metropolitan concedes that the ATV qualifies as a 'highway vehicle' within the meaning of the policy. It concedes nothing else.
At oral argument, Metropolitan appeared to dispute that the unloading of the ATV constituted 'use' of the vehicle under the policy. Metropolitan cited no authority for this proposition, and it is contrary to law. We hold that unloading of the ATV here was a 'use' within the meaning of the policy.
As our Supreme Court recently reaffirmed, an accident 'arises out of the use' of a vehicle if 'the vehicle itself or permanent attachments to the vehicle causally contributed in some way to produce the injury .' The phrase 'arising out of' means 'originating from,' 'having its origin in,' 'growing out of,' or 'flowing from.' It is not necessary that the use of the vehicle be the proximate cause of the accident. Instead, '{i}t is only necessary that there be a causal connection between the use and the accident.' But the fact that the vehicle is the 'mere situs' of the accident is not enough to establish the requisite causal connection. As stated by our Supreme Court in the seminal case of Transamerica Ins. Group v. United Pac. Ins. Co., the critical inquiry is 'whether the vehicle itself or permanent attachments to the vehicle causally contributed in some way to produce the injury.' In that case, a passenger was removing his rifle from a gun rack mounted inside a stationary vehicle when the trigger brushed against the rear bracket of the gun rack. The rifle discharged and injured the driver. In determining whether the accident arose out of the vehicle's use, the Court explained that:
The cases concerning gunshot wounds received in and around automobiles place particular importance on some physical involvement of the vehicle itself or some permanently attached part thereof. Where such physical involvement was absent, the vehicle has been deemed the mere situs of the accident and thus the accident has been construed to fall outside the coverage of the policy.
But the Court recognized that coverage may exist:
where the factual pattern of the accident involved some causal relationship between a condition of the vehicle, a permanent attachment thereto, or some aspect of its operation. In such event the vehicle has been considered more than the mere situs of the occurrence and liability has attached under an insurance contract providing for coverage of an accident arising out of use of the automobile.
Significantly, the Court cited representative cases from other jurisdictions supporting its view that the policy language at issue could support coverage. Those cases demonstrate that our Supreme Court did not intend to restrict causal connection in shooting accidents to situations where a weapon actually touches a covered vehicle. That view of Transamerica is not inconsistent with that Court concluding on the basis of the facts before it in that case that there was 'some causal relationship between a condition of the vehicle, a permanent attachment thereto, or some aspect of its operation.' Thus, the vehicle was more tha
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