June 19, 2019
In Patel v. LM General Insurance Company, Patel was killed by gunfire while he was stopped in traffic in St. Louis, when the occupants of an unknown vehicle fired several shots from the unknown vehicle hitting Patel. After the first shots were fired Patel exited his vehicle and was shot again outside of the vehicle.
The uninsured motorist (UM) coverage provision of the defendant’s policy issued to Patel provided UM coverage limits of $250,000 for each person, naming Patel and his widow as insureds. The insuring agreement of the policy provided in essence that the insurer will pay compensatory damages the insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by an insured and caused by an accident. The owner or operator’s liability for damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle.
The term “arising out of the… use” of an automobile has been the subject of many Missouri cases over the years addressing coverage. A number of those cases have turned on the issue of whether the insured liability to a third party was covered by an auto liability policy because the third party’s injuries arose out of the insured’s use of an insured automobile. Missouri cases hold that “arising out of” requires proof of a causal connection though the standard of causation is broader than just proximate cause.
The issue in Patel raises the question of whether intentionally inflicted injury by the occupants of an uninsured automobile was covered because the uninsured motorist liability arose out of the use of an uninsured auto. The Eighth Circuit Court of Appeals cited existing case law nearly on all fours with the facts of Patel. In Ward v. International Indemnity, the decedent, while driving his car was shot and killed by a passenger in another unidentified vehicle. The Plaintiff’s mother argued that the other vehicle was an instrumentality of the shooting that aided and abetted the shooter, but that argument was rejected by the court in Ward, when the court determined that injuries inflicted on a victim of a drive by shooting by the occupant of a motor vehicle are not injuries which arise out of the use of the motor vehicle, since the motor vehicle was merely the situs or locus of the cause of the victim’s injuries; the discharge of the gun is unconnected to the inherent use of the motor vehicle. In other words, the fact that the shots were fired from a motor vehicle is merely coincidental with the facts of the cause of decedent’s death. Human conduct that is wholly independent of the operation or use of a motor vehicle is what caused the death. The Eighth Circuit determined that the Missouri Court of Appeals has consistently cited Schmidt v. Utilities Insurance Company, a 1944 Missouri Supreme Court case as being the seminal Missouri case construing the phrase “arising out of” in an auto liability policy.
The Eight Circuit determined that the drive by shooters’ use of firearms to kill Patel was not directly connected and necessarily incident to the operation and use of the uninsured motor vehicle and that human conduct wholly independent of the operation or use of the motor vehicle was the cause of the death. The Eighth Circuit affirmed the judgment of the District Court in granting summary judgment for defendant LM Insurance Company.