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Cross v. State Farm Mutual Automobile Insurance Co.

Court of Appeals of Arkansas, Divisions I, II

February 7, 2018

GARA CROSS APPELLANT
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY APPELLEE

         APPE AL FR O M T HE LIT T LE RIVER COUNTY CIRCUIT COURT [NO. 41CV-12-76] HONORABLE CHARLES A. YEARGAN, JUDGE

          Chaney Law Firm, P.A., by: Don P. Chaney and S. Taylor Chaney, for appellant.

          Munson, Rowlett, Moore & Boone, P.A., by: Beverly A. Rowlett, for appellee.

          LARRYD. VAUGHT, Judge

         Gara Cross appeals the order entered by the Little River County Circuit Court granting summary judgment to State Farm Mutual Automobile Insurance Company (State Farm) finding that she was not entitled to uninsured-motorist (UM) coverage. Cross argues on appeal that the circuit court erred in granting summary judgment because (1) she presented a factual question on the issue of whether her injuries arose "out of the operation, maintenance or use of an uninsured motor vehicle"; (2) she presented a factual question on the issue of whether she was legally entitled to recover from the owner or driver of an uninsured motor vehicle; and (3) the government-owned-vehicle exclusion violates public policy. We agree and reverse and remand.

         The Arkansas Highway and Transportation Department (AHTD) was performing "chip-and-seal" road-construction work on State Highway 108 in July 2006. The project involved heavy equipment laying down liquid asphalt and pea gravel in the roadway. In the early morning of July 13, 2006, Cross was driving to work when her vehicle slid on loose gravel, and she suffered injuries in a single-vehicle accident.

         Cross was the permissive driver of Glenn Hankins's vehicle, which was insured by State Farm. Hankins had UM coverage as required by state law.[1] Cross filed a complaint against State Farm for UM benefits, asserting that because the AHTD was not required to maintain liability insurance, it qualified as an uninsured motorist.

         State Farm answered and filed a motion for summary judgment, arguing that the accident was not caused by the negligence of a driver of an uninsured vehicle; Cross's injuries did not arise out of the operation, maintenance, or use of an uninsured motor vehicle; the alleged uninsured motor vehicle and driver had not been identified and thus physical contact was required (under the "hit-and-run" provision of the UM coverage); and the policy excluded government-owned vehicles from the definition of an "uninsured motor vehicle." After a hearing, the circuit court found in favor of State Farm and entered summary judgment. Specifically, the circuit court found that (1) because there was no "collision" between Cross's vehicle and the AHTD dump truck, the accident did not arise out of the operation, maintenance, or use of an uninsured motor vehicle; (2) because Cross was unable to identify which truck and driver caused the alleged negligence, physical contact between her vehicle and the uninsured motorist was required under the hit-and-run provision of the UM coverage; and (3) the AHTD vehicles were excluded from UM coverage pursuant to the government-owned-vehicle exclusion. Cross timely appealed.

         The first issue on appeal revolves around the State Farm UM insuring clause:

We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be sustained by an insured and caused by an accident arising out of the operation, maintenance or use of an uninsured motor vehicle.

(Emphasis in policy.) Cross argues on appeal that the circuit court erred in finding that she did not present a factual question on the issue of whether her accident arose out of the operation, maintenance, or use of an uninsured vehicle because there was no "collision." The phrase "arising out of the operation, maintenance or use of" in the context of underinsurance motorist (UIM) coverage was discussed at length in Hisaw v. State Farm Mutual Automobile Insurance Co., 353 Ark. 668, 122 S.W.3d 1 (2003). In Hisaw, the plaintiff was injured when he leaned into a wrecked car and the car door hit his back, causing neck and back injuries. The circuit court granted summary judgment to the UIM carrier, finding that the plaintiff's injuries did not arise out of the operation, maintenance, or use of the underinsured vehicle.

         On appeal, the supreme court construed the phrase "arising out of the operation, maintenance, or use of an uninsured motor vehicle." The court held that the phrase must be interpreted broadly and that the term "use" was vague and ambiguous and susceptible to more than one reasonable interpretation. Id. at 681, 122 S.W.3d at 7-8. The Hisaw court noted that "courts have held that an injury arises out of the use of [an] 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 680, 112 S.W.3d at 7 (citing Georgeson v. Fidelity & Guar. Ins. Co., 48 F.Supp.2d 1262 (D. Mont. 1998) (internal citations omitted)). The Hisaw court continued:

Whether an accident is caused by the use of a vehicle must be determined on a case-by-case basis. Bredemeier v. Farmers Ins. Exchange, 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 Casualty & Surety Co. v. McMichael, 906 P.2d 92 (Colo. 1995). The causal requirement is more than "but-for" causation, but less than legal, proximate cause.

Hisaw, 353 Ark. at 680-81, 122 S.W.3d at 7 (quoting Georgeson, supra). Ultimately, the court found that whether the plaintiff's injuries were caused by an accident "arising out of the operation, maintenance or use of an underinsured motor vehicle" was a question for the jury to resolve. Id. at 683, 122 S.W.3d at 9. Summary judgment was reversed and remanded on this issue.

         Likewise, in the case at bar, we must reverse the circuit court's summary-judgment finding that the accident did not arise out of the operation, maintenance, or use of an uninsured motor vehicle. The AHTD project supervisor, Kathy Barham, explained in her affidavit the proper method for the "chip-and-seal" construction project. She said that AHTD employees would spray liquid asphalt onto the roadway. Then, dump trucks would haul pea gravel from a storage area to a spreader located at the jobsite. The trucks would connect to the spreader, and the spreader would pull the dump truck along the highway. As they traveled together, the truck would dump the pea gravel into the spreader as needed, and the spreader would control the flow of the gravel onto the roadway surface. Two large rollers would follow behind the dump truck/spreader tandem to compact the gravel into the liquid asphalt.

         However, Cross presented the deposition of Ricky Carter, who testified that at approximately noon on July 12, 2006, the day before Cross's accident, he was driving through the construction zone and witnessed AHTD employees dumping pea gravel out of the dump truck directly onto the roadway. Further, the deposition testimony of Raymond Smith demonstrated that he had been involved in a very similar accident in the same area under identical conditions on July 12, 2006, the day before Cross's accident. He stated that he lost control of his vehicle when it hit the loose gravel and oil on the road.

         Employing a broad interpretation of the word "use" as we are required to do, we hold that Cross presented sufficient evidence to create a question of fact about whether her accident arose out of the operation, maintenance, or use of an uninsured motor vehicle. A jury should determine whether Cross's injuries were causally connected to the use of the AHTD dump truck. Accordingly, we hold that the circuit court erred in finding that the accident did not arise out of the operation, maintenance, or use of an uninsured motor vehicle.

         We further hold that the circuit court erred in finding that because there was no collision between Cross and an AHTD dump truck, the accident did not arise out of the operation, maintenance, or use of an uninsured motor vehicle. The insuring clause of the policy does not require a collision; instead, it requires only that the accident arise out of ...


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