United States District Court, W.D. Arkansas, Fort Smith Division
OPINION AND ORDER
HOLMES, III CHIEF U.S. DISTRICT JUDGE
the Court are Defendant St. Paul Fire and Marine Insurance
Company's (“St. Paul”) motion for summary
judgment (Doc. 11), statement of facts (Doc. 12), and brief
in support (Doc. 13), as well as Plaintiff Buddy Jones's
(“Officer Jones”) response (Doc. 16), brief in
support (Doc. 17), and response to the statement of facts
(Doc. 18). With leave of Court, Officer Jones also filed
supplemental responses (Docs. 21, 22, and 23). St. Paul filed
a reply (Doc. 24), and the matter is ripe for consideration.
For the reasons stated herein, St. Paul's motion will be
December 31, 2004, Officer Jones of the Fort Smith Police
Department was injured by uninsured motorist Michael
Jones when Officer Jones attempted to arrest
Michael Jones. That day, Officer Jones had been driving his
patrol vehicle in search of Michael Jones. While on patrol,
Officer Jones encountered an occupied vehicle in a parking
lot and pulled his patrol vehicle alongside it. Officer Jones
began to suspect that Michael Jones was driving the now
suspect vehicle. The passengers in the suspect vehicle
alerted Michael Jones that Officer Jones knew it was Michael
Jones driving the suspect vehicle. Michael Jones reversed the
suspect vehicle and drew away from Officer Jones's patrol
vehicle. Officer Jones exited his patrol vehicle and
approached the suspect vehicle on foot. He intended to arrest
Michael Jones and return with him to the patrol vehicle.
Michael Jones put the suspect vehicle in forward gear and
began driving. Officer Jones wound up on the hood of the
suspect vehicle, eventually fell from the suspect vehicle to
the ground, and was severely injured.
time Officer Jones was injured, patrol vehicles used by the
Fort Smith Police Department were insured under a policy
issued to the City of Fort Smith by St. Paul. The policy
included coverage for some injuries caused by uninsured
motorists. On December 19, 2013, St. Paul denied a claim
Officer Jones made on the policy. On November 23, 2015,
Officer Jones filed this lawsuit in the Circuit Court of
Sebastian County, Arkansas. On January 29, 2016, St. Paul
removed the lawsuit to this Court. On August 26, 2016, St.
Paul filed the instant motion for summary judgment.
support of its motion for summary judgment, St. Paul argues
that Officer Jones is not entitled to coverage under the
uninsured motorist provisions of an insurance policy St. Paul
issued to the City of Fort Smith at the time of the injury
because Officer Jones did not provide timely notice of his
claim to St. Paul and because he is not a protected person
under the policy. Officer Jones responds that there are
genuine disputes of material fact with respect to whether St.
Paul received timely notice and whether Officer Jones is a
protected person. Resolution of either of these issues in
favor of St. Paul entitles St. Paul to judgment. Because the
Court finds that Officer Jones was not a protected person
under the policy, this opinion does not address the arguments
concerning the timeliness of notice.
party moves for summary judgment, it must establish both the
absence of a genuine dispute of material fact and that it is
entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56; Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986); Nat'l Bank
of Commerce of El Dorado, Ark. v. Dow Chem. Co., 165
F.3d 602 (8th Cir. 1999). In order for there to be a genuine
issue of material fact, the non-moving party must produce
evidence “such that a reasonable jury could return a
verdict for the nonmoving party.” Allison v.
Flexway Trucking, Inc., 28 F.3d 64, 66-67 (8th Cir.
1994) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). Only facts “that might affect
the outcome of the suit under the governing law” need
be considered. Anderson, 477 U.S. at 248.
“[T]he non-movant must make a sufficient showing on
every essential element of its claim on which it bears the
burden of proof.” P.H. v. Sch. Dist. of Kan. City,
Mo., 265 F.3d 653, 658 (8th Cir. 2001) (quotation
omitted). Facts asserted by the nonmoving party “must
be properly supported by the record, ” in which case
those “facts and the inferences to be drawn from them
[are viewed] in the light most favorable to the nonmoving
party.” Id. at 656-57.
construction and legal effect of written contracts [including
insurance policies] are matters to be determined by the
court, not by the jury, except when the meaning of the
language depends upon disputed extrinsic evidence.”
Southall v. Farm Bureau Mut. Ins. Co. of Ark., 632
S.W.2d 420, 421 (Ark. 1982). The insurance
policy at issue here provides benefits for
injuries caused by uninsured motorists and sustained by
protected persons in covered autos. The policy is issued to
the City of Fort Smith, which under the policy is a
“[p]artnership, limited liability company, corporation,
or other organization.” (Doc. 23-2, p. 18). For
partnerships, limited liability companies, corporations, or
other organizations, “protected persons” are
defined as “[a]nyone in a covered auto or temporary
substitute for a covered auto; and [a]nyone entitled to
collect damages for bodily injury to another protected
person.” (Id. (bullets omitted)). Officer
Jones argues that he is a protected person under the policy.
There is no dispute that Officer Jones's patrol vehicle
is a “covered auto” and that Michael Jones's
vehicle is not a “covered auto.” The policy
defines the phrase “in an auto or in a covered auto or
in a temporary substitute for a covered auto” to
include being “on the auto or getting in, out, or off
of it.” (Id.). Officer Jones was not in, on,
getting in, getting out, or getting off his patrol vehicle.
The express terms of the policy do not cover this accident.
operation of Arkansas law, however, the uninsured motorist
policy must also extend coverage to Officer Jones if he was
“using” his patrol vehicle at the time of the
accident. Ark. Code Ann. § 23-89-403(a)(1); Tate v.
Paul Revere Fire Ins. Co., 216 S.W.2d 385, 386 (Ark.
1949) (holding uninsured motorist statute must be read into
indemnity policies); First Sec. Bank of Searcy v.
Doe, 760 S.W.2d 863, 866 (Ark. 1988) (holding that
pursuant to uninsured motorist statute, policy with terms
limiting uninsured motorist coverage to those
“occupying” a covered vehicle must be read to
extend uninsured motorist coverage to the “user”
of a covered vehicle). The parties' briefs recognize that
whether Officer Jones was “using” his patrol
vehicle at the time of the accident is the question that will
resolve whether he was a protected person under the policy.
(Doc. 13, pp. 18-23; Doc. 17, p. 10; Doc. 24, pp. 6-7). There
is no genuine factual dispute as to what Officer Jones was
actually doing at the time he sustained injuries from an
uninsured motorist. Because the essential facts are
undisputed, resolution of the question of whether Officer
Jones was using his patrol vehicle presents a matter of law
for the Court to decide.
of a vehicle (as read into the policy pursuant to statute)
“is inherently ambiguous, and must therefore be
construed broadly to include all proper uses of a
vehicle.” Hisaw v. State Farm Mut. Auto.
Ins. Co., 122 S.W.3d 1, 8 (Ark. 2003) (basing its
holding on and quoting at length the analytical factors set
out in Georgeson v. Fidelity & Guar. Ins. Co.,
48 F.Supp.2d 1262 (D. Mont. 1998)). In determining whether
Officer Jones's injury arose out of his use of his patrol
vehicle, and following the Arkansas Supreme Court, this Court
will use the analytical factors set out in
The meaning of the term “use”, as contemplated in
an automobile liability policy, has been the subject of
extensive litigation. Courts generally agree that the term
“use” is inherently ambiguous, and must therefore
be construed broadly to include all proper uses of a vehicle.
Farmers Ins. Exch. v. Tibi, 20 M.F.R. 96, 104-105
(D. Mont. 1995), citing, Appleman, Insurance Law and
Practice, § 4316 (1979); Union Mut. Fire Ins. Co. v.
Commercial Union Ins. Co., 521 A.2d 308, 310 (Me. 1987).
Premised upon this liberal construction, courts have held
that an injury arises out of the use of a [sic] insured
vehicle, for insurance purposes, if it is shown that some
causal connection exists between the liability-causing event
and a proper use of the vehicle. Id. at 105,
citing, Watson v. Watson, 326 So.2d 48, 49
(Fla. App. 1976); Annotation, Automobile
Liability Insurance: What are Accidents or Injuries
“Arising out of Ownership, Maintenance, or Use”
of Insured Vehicle, 15 A.L.R. 4Th 10 (1982).
Whether an accident is caused by the use of a vehicle must be
determined on a case-by-case basis. Bredemeier v. Farmers
Ins. Exch., 950 P.2d 616, 617 (Colo.App. 1997).
“An injury arises out of the use of a vehicle within
the provisions of an automobile insurance policy when a
causal connection is reasonably apparent between the use to
which the vehicle is being put and the resulting
injury.” Id., quoting, G. Couch,
Cyclopedia of Insurance Law § 45:56 (R.
Anderson 2d ed. 1981). To prove causation under such
circumstances, a plaintiff need only show that the injury
originated in, grew out of, or flowed from the use of a
vehicle, not that the vehicle itself was the source of the
injury. Thus, the vehicle need only be integrally related to
the claimant's activities and the injury at the time of
the accident. Id., citing, Aetna Cas.
& Sur. Co. v. McMichael, 906 P.2d 92 (Colo. 1995).
The causal requirement is more than “but-for”
causation, but less than legal, proximate cause.
See, Hawkeye-Security Ins. Co., 124 Idaho
953, 866 P.2d 976, 980 (1994) (“It is not enough to say
that ‘but for' the use of the automobile, the
injury would not have occurred.”); Barry v. Ill.
Farmers Ins. Co., 386 N.W.2d 299, 301 (Minn.App. 1986)
(“[A] causal connection is less than proximate cause