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Government Employees Insurance Co. v. MFA Mutual Insurance Co.5/10/1990
icles, MFA and GEICO would both be responsible for payment of the PIP benefits and MFA would be entitled to an equitable pro rata contribution from GEICO. Section 10-4-707(3).
MFA also would be responsible for PIP benefits paid to the passengers of the MFA insured vehicle if injured in an accident "involving" that vehicle. Section 10-4-707(1)(c).
The phrase "involving motor vehicle," as used in the Auto Accident Reparations Act, has been interpreted to mean "arising out of the use or operation of a motor vehicle." Trinity Universal Insurance Co. v. Hall, 690 P.2d 227 (Colo. 1984). A "but-for" test is to be applied in determining whether this requisite causal relationship exists between the injury and the use of an insured vehicle. Titan Construction Co. v. Nolf, 183 Colo. 188, 515 P.2d 1123 (1973). The use of the vehicle need not be the sole cause of the injury and the accident need not occur while the insured vehicle is moving; however, the injury must originate in, grow nut of, or flow from the use or operation of the vehicle. Kohl v. Union Insurance Co., 731 P.2d 134 (Colo. 1986).
Also, the use of the vehicle must be conceivable and not foreign to the inherent purpose of the insured vehicle. Azar v. Employers Casualty Co., 178 Colo. 58, 495 P.2d 554 (1972) (transporting a shotgun not a use within the inherent purpose of an automobile); cf. Kohl v. Union Insurance Co., supra (transporting a hunting rifle is a use within the inherent purpose of a four-wheel-drive vehicle). The loading and unloading of an insured vehicle is a covered use. Colorado Farm Bureau Mutual Insurance Co. v. West American Insurance Co., 35 Colo. App. 380, 540 P.2d 1112 (1975).
Here, we conclude that the storage of a spare tire is a use within the inherent purpose of an automobile. The unloading of a spare tire stored in the trunk of the disabled MFA insured vehicle flowed from the MFA insureds operation of that vehicle. But for their operation of the vehicle, they would not have been on the shoulder of the highway fixing a flat tire.
Thus, the accident involved the MFA insured vehicle, and MFA is responsible for payment of PIP benefits to its insured for their injuries sustained as a result of the accident. Sections 10-4-707(1)(a) and 10-4-707(1)(c). The allocation of those payments between MFA and GEICO is to be made on an equitable pro rata basis, and thus, MFA is entitled to a partial reimbursement from GEICO. Section 10-4-707(3). Consequently, we remand the matter for a determination of the proper reimbursement amount.
MFA's remaining contention is without merit.
The judgment is reversed and the cause is remanded for further proceedings.
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