Opinion
No. 2 CA-CV 2016-0161
08-17-2017
DENNIS RULE, Plaintiff/Appellant, v. ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Defendant/Appellee.
COUNSEL Dwyer Hernandez, P.C., Tucson By David J. Dwyer Law Offices of John L. Tully, P.C., Tucson By John L. Tully Counsel for Plaintiff/Appellant Herman Goldstein Law Firm, Phoenix By Evan S. Goldstein and Hesam Alagha Counsel for Defendant/Appellee
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pima County
No. C20153244
The Honorable Jeffrey T. Bergin, Judge
AFFIRMED
COUNSEL Dwyer Hernandez, P.C., Tucson
By David J. Dwyer Law Offices of John L. Tully, P.C., Tucson
By John L. Tully
Counsel for Plaintiff/Appellant Herman Goldstein Law Firm, Phoenix
By Evan S. Goldstein and Hesam Alagha
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Judge Vásquez and Judge Kelly concurred. STARING, Presiding Judge:
The Hon. Virginia C. Kelly, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court.
¶1 Dennis Rule appeals from a declaratory judgment that the injuries he suffered during an altercation with a juvenile who had stolen his neighbor's van were not covered by Rule's uninsured motorist (UM) insurance policy. Because we conclude Rule's injuries were not causally connected to the use of the van, we affirm.
Factual and Procedural Background
¶2 In January 2011, Rule and his family house-sat for their next-door neighbors. Very early one morning, a juvenile offender stole the neighbors' van. Rule quickly discovered the theft and contacted the police.
¶3 The juvenile returned in the van while Rule was waiting for the police to arrive. The juvenile turned off the ignition and headlights and Rule saw him reaching towards the floorboard. Rule, believing the juvenile had dropped the keys and might try to drive away again, grabbed his arm and pulled him out of the van. The juvenile would not surrender the keys, and the two grappled outside the van until the police arrived minutes later. During the struggle, Rule suffered injuries to his hand and wrist.
¶4 Rule claimed coverage under his UM policy through Allstate Fire and Casualty Insurance Company. Allstate denied his claim, and he filed an action seeking a declaratory judgment that the policy covered his injuries. Allstate moved for summary judgment, arguing the policy did not cover Rule's injuries because they were not accidental and did not "arise out of the ownership, maintenance, or use of an uninsured auto." Rule filed a cross-motion for summary judgment, advancing the opposite position.
¶5 The trial court granted summary judgment in favor of Allstate and correspondingly denied Rule's motion, finding his injuries were caused by the physical altercation with the juvenile, and thus did not arise out of use of the van. The court entered a final judgment declaring coverage did not exist for Rule's injuries. Rule appealed the judgment, and we have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).
The trial court subsequently amended the judgment to correct a clerical error.
Discussion
¶6 Summary judgment is appropriate when "the moving party shows that there is no genuine dispute as to any material fact and . . . is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a). We review a grant of summary judgment de novo, and "view the evidence and all reasonable inferences in the light most favorable to the party against whom summary judgment was entered." Duncan v. Scottsdale Med. Imaging, Ltd., 205 Ariz. 306, ¶ 2, 70 P.3d 435, 437 (2003). The interpretation of insurance policy language is a matter of law we review de novo. First Am. Title Ins. Co. v. Action Acquisitions, LLC, 218 Ariz. 394, ¶ 8, 187 P.3d 1107, 1110 (2008).
¶7 Rule's UM policy provides coverage when an insured suffers bodily injury that is "caused by an accident and arise[s] out of the ownership, maintenance, or use of an uninsured auto." Allstate does not dispute that the neighbors' van was uninsured with respect to the juvenile's unauthorized use. See 9 Steven Plitt et al., Couch on Insurance § 123:47 (3d ed., rev. 2017) (damages caused by operator of stolen vehicle generally not covered by vehicle owner's policy). Rule argues the trial court erred in determining his injuries did not arise from the ownership or use of the van, and that summary judgment in favor of Allstate was thus inappropriate.
Rule also contends the judgment cannot be sustained on the alternate theory that his injuries did not result from an accident. Because we conclude Rule's injuries were not causally connected to the use of the van, we need not address whether they were incurred in an accident under the UM policy.
¶8 Rule argues the trial court incorrectly determined his injuries did not "arise out of the ownership, maintenance, or use of an uninsured vehicle." He contends his motive in confronting the juvenile was to recover the keys and prevent further unauthorized use of the van. Thus, he argues, the van "was an indispensable component . . . and a cause of the injury." We disagree.
Rule also asserts his injuries arose out his "ownership" of the van, because he was acting as the owners' agent. On appeal, Rule first raised this issue in his reply brief, and reiterated it at oral argument. We thus do not consider it. See United Bank v. Mesa N. O. Nelson Co., 121 Ariz. 438, 443, 590 P.2d 1384, 1389 (1979).
¶9 In order for an injury to arise out of the use of a vehicle, there must be some causal connection between an accident and "the inherent nature of the automobile, as such." Vanguard Ins. Co. v. Cantrell, 18 Ariz. App. 486, 488, 503 P.2d 962, 964 (1972), disapproved on other grounds by Ohio Cas. Ins. Co. v. Henderson, 189 Ariz. 184, 191, 939 P.2d 1337, 1344 (1997). The requisite connection can exist in cases that involve injury caused by uses of a vehicle, such as to carry cargo, that do not directly involve driving. See Morari v. Atl. Mut. Fire Ins. Co., 105 Ariz. 537, 540, 468 P.2d 564, 567 (1970) (gunshot wound caused by negligent removal of loaded gun from truck's cargo); Farmers Ins. Co. of Ariz. v. Till, 170 Ariz. 429, 432, 825 P.2d 954, 957 (App. 1991) (failure to secure window separating truck from camper resulted in dog attacking passenger).
Arizona cases concerning homeowner's and automobile insurance "tend to fit together so that one policy or the other generally provides coverage because one policy's inclusion is the other policy's exclusion." Allstate Ins. Co. v. Johnston, 194 Ariz. 402, ¶ 7, 984 P.2d 10, 11 (1999). Accordingly, cases such as Morari, 105 Ariz. at 539, 468 P.2d at 566, involving the automobile exclusion of a homeowner's insurance policy, are applicable to the analysis of cases involving automobile insurance coverage. --------
¶10 On the other hand, an injury does not necessarily arise out of the use of a vehicle simply because it occurs inside the vehicle or at the hands of someone using a vehicle. See Ruiz v. Farmers Ins. Co. of Ariz., 177 Ariz. 101, 102-03, 865 P.2d 762, 763-64 (1993) (use of uninsured vehicle to pursue and shoot passenger in other car "facilitated" but did not cause victim's injury); Mazon v. Farmers Ins. Exch., 107 Ariz. 601, 603, 491 P.2d 455, 457 (1971) (no causal connection where insured injured by rock thrown from unidentified vehicle); Love v. Farmers Ins. Grp., 121 Ariz. 71, 73-74, 588 P.2d 364, 366-67 (App. 1978) (no causal connection where kidnappers drove insured's vehicle to remote location and beat him to death); Cantrell, 18 Ariz. App. at 487-88, 503 P.2d at 963-64 (injury to clerk shot by motorist through drive-up window did not arise out of use of vehicle); Brenner v. Aetna Ins. Co., 8 Ariz. App. 272, 273, 276, 445 P.2d 474, 475, 478 (1968) (no causal connection where passenger accidentally shot second passenger). An accident arises out of use of a vehicle only if it is "caused by a negligent act in the use of the motor vehicle." Associated Indem. Corp. v. Warner, 143 Ariz. 585, 587-88, 694 P.2d 1199, 1201-02 (App. 1983) (collision caused by use and unexpected starting of airplane engine, not by insured auto used only to charge battery), modified on other grounds, 143 Ariz. 567, 694 P.2d 1181 (1985). "The fundamental question is whether the use of the vehicle was itself the cause of the injury." Ruiz, 177 Ariz. at 104, 865 P.2d at 765.
¶11 Furthermore, coverage exists only when the vehicle's use is pursuant to its intrinsic nature "as a means of transport." Benevides v. Ariz. Prop. & Cas. Ins. Guar. Fund, 184 Ariz. 610, 613, 911 P.2d 616, 619 (App. 1995). Accordingly, we have held there is no coverage for a shooting provoked by an insured's refusal to lower the volume of his truck stereo, because the vehicle was used as a "mobile boom box" and not for transport. See id.
¶12 We conclude the trial court correctly determined Rule's UM policy did not cover his injuries because they did not "arise out of the ownership, maintenance, or use of an uninsured auto." Rule's physical confrontation with the juvenile began at the van's door and occurred mostly outside the van, which was stationary and had its lights and ignition off. The fact Rule had a laudable motive for confronting the juvenile and attempting to recover the keys and prevent additional unauthorized use of the van does not create a sufficient causal nexus between the juvenile's use of the van and Rule's injuries. We agree with the trial court's determination that Rule's injuries resulted from grappling with the juvenile, and not from the juvenile's use of the vehicle. The van was, at most, the location of part of the incident. See id. at 612, 911 P.2d at 618 ("No causal link exists when the car is merely the situs of the accident.").
Attorney Fees
¶13 Both parties request attorney fees on appeal pursuant to A.R.S. § 12-341.01(A). We deny Rule's request for attorney fees because he has not prevailed on appeal. And, in our discretion, we decline to award attorney fees to Allstate, the prevailing party. Allstate is, however, entitled to its costs on appeal pursuant to A.R.S. § 12-341.
Disposition
¶14 For the foregoing reasons, we affirm the judgment of the trial court.