use of a motor vehicle III

3. Let me briefly introduce one final case, which ought to deepen the confusion. Diehl v. Cumberland Mutual Fire Ins. Co, 686 A2d 785 (1997). Here are the straightforward facts:

"On December 26, 1989, Plaintiff Richard Diehl was driving away from his home when he noticed his brother George Diehl approaching in a pickup truck. Richard pulled over to the side of the road. He got out of his vehicle, walked around the rear of the truck and was bitten in the face by George's dog, which was in the open cargo area of the pickup truck. The truck was owned by Theresa Brown and insured by the New Jersey Automobile Full Insurance Underwriting Association by its servicing carrier, CSC Insurance Services (CSC). At the time of the incident, George resided with his mother who had homeowner's insurance with defendant Cumberland Mutual Fire Insurance Company (Cumberland)."

The question before the lower (and Supreme Court) was whether George was covered through his mother's homeowner's policy or through the liability section of the automobile policy issued by CSC. The lower court held that the liability section of the homeowner's policy afforded coverage (more than $55,000) to George and hence would be used to pay for Richard's injuries. On appeal the Supreme Court looked at the NJ fiscal responsibility statute which provided that an automobile liability policy covered the "ownership, maintenance, operation or use of a motor vehicle."

Instead of asking, as did the NC court, whether the action being complained about was something that normally happened with automobiles, the NJ court framed the test in different words:

"The inquiry should be whether the negligent act which caused the injury, although not foreseen or expected, was in the contemplation of the parties to the insurance contract a natural and reasonable incident or consequence of the use of the automobile, and thus a risk against which they might reasonably expect those insured under the policy would be protected. Whether the requisite connection or degree of relationship exists depends upon the circumstances of the particular case," 686 A2d at 788.

It was this test that should be used to determine whether in fact there was a "substantial nexus between the accident and the use of an automobile." The court then went on to speak about a drive-by shooting case recently decided in NJ. You will recall that the NC court decided that such a shooting would not create a sufficient causal nexus to ensure coverage for the injured party. Here is what the NJ court said:

"In our view the automobile did more than provide a setting or an enhanced opportunity for the assault. In addition to allowing the assailant to be at the place of attack, it furnished the assailant with what he must have assumed would be both anonymity and a means of escape. The assailant would not likely have committed such an act of apparently random violence without the use of a car."

Thus the court concluded:

"we are satisfied that automobile liability insurance should cover this injury caused by a dog bite to the face occurring while the dog was in the open rear deck of a pickup truck because it arose out of the use of the vehicle to transport the dog. Moreover, the bite incident was facilitated by the height and open design of the deck. In our view the act was a natural and foreseeable consequence of the use of the vehicle, and there was a substantial nexus between the dog bite and the use of the vehicle at the time the dog bit the plaintiff," Id. at 788.

Conclusion

When the great Christian theologian Augustine was asked about what "time" was, he said that he was very clear in his own mind what time was, as long as no one asked him to define it. I think the same might be said about the meaning of the "use" of a vehicle for purposes of liability or uninsured motorist coverage. When no one asks us about what "using" the vehicle is, we know exactly what we mean. Even when someone inquires about what the "use" of a vehicle is, we might mumble the words, "causal connection" between use and loss. But then, when someone presses us further and asks what a causal connection between use and loss, we begin to cringe. Or, at least, that should be the message you get from the variety of cases I have surveyed in these essays.

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