This month’s introductory blog addresses the new Washington State Supreme Court decision in Kroeber v. Geico Insurance Company, Washington Supreme Court No. 91846-5. The Kroeber decision was issued on January 14, 2016. The case specifically involved questions of whether there was underinsured motorist (“UIM”) coverage for an injury to an insured pedestrian resulting from the intentional firing of a gun from an uninsured pickup truck. In the decision, the Supreme Court addressed two certified questions from the United States District Court for the Western District of Washington. These specific questions involve whether the subject injury arose out of the use of the motor vehicle and whether the shooter’s intent was material.
In regard to the first question, the Court clarified the test for whether the subject injury arose out of the motor vehicle. The Court clarified that the test in Washington is that there must be a causal connection between the subject injury and the use of the vehicle. Simply because the vehicle was the site of the accident does not necessarily mean that the accident arose from the use of the motor vehicle. The Court clarified the test as follows:
The rule our cases have established is that some causal connection exists when the events leading up to an injury involve vehicle use, unless the vehicle is merely the coincidental location of the accident… an injury does not “arise out of” vehicle use when the vehicle is merely the situs of the accident.
However, the Court did not define “arising out of” nor did it define “situs of the accident”. Further, the Court did not actually hold that the subject injury arose out of the tortfeasor’s vehicle.
In regard to the intent issue, the Court found that the shooter’s intent was immaterial given the fact that both parties agreed that the loss involved an accident. It is unclear what the Court would have ruled as to that issue had there been a question from the insured regarding whether the loss involved an accidental injury.
The question of whether a loss arises out of the use of a motor vehicle comes up in the context of not only UIM claims, but also PIP claims and third-party liability claims. The question of what involves vehicle use has been addressed around the country in different courts. This decision will certainly feed that discussion.
If you would like a full copy of this decision or would like to discuss the outcome of this case, please feel free to contact our office.
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About Lether & Associates
Lether & Associates, PLLC is a boutique insurance law firm located on the shores of Lake Union in Seattle, Washington. Our focus is on complex insurance coverage matters in a number of jurisdictions across the United States and internationally. Our attorneys are licensed in Washington State, Idaho, Oregon, Alaska, Ohio, the Federal Courts in all of those jurisdictions, the 9th Circuit Court of Appeals, and the Federal Court for Colorado. The firm also handles cases from all over the United States on a pro hac vice basis. The firm specializes in all types of insurance litigation as well as the litigation of extra-contractual claims.
Thomas Lether our Founder, has been involved in the insurance industry for approximately 30 years. In addition to being an attorney, he acts as a mediator, lecturer, arbitrator, and expert witness on insurance related matters.
Although the firm focuses on complex insurance disputes, Lether & Associates enjoys a healthy sense of humor and outside activities which focus on our waterfront location.
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