Brian McCluskey v. Progressive Northern Ins. Co. (2012)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT

This action is an insurance coverage dispute resulting from an unidentified gunman's shooting of the plaintiff, Brian McCluskey.   In his complaint dated October 29, 2010, the plaintiff alleges that, on October 30, 2007, he was a front-seat passenger in a vehicle owned and operated by Steven Kenyon (the Kenyon vehicle), which was proceeding westerly on Dorothy Road in Bristol.   The Kenyon vehicle stopped at the intersection of Dorothy Road and Jerome Avenue with its passenger window open.   While the car was stopped, an unidentified person or persons suddenly “discharged a paintball gun with it aimed at the [Kenyon] vehicle,” and hit the plaintiff with a paintball through the open passenger window, seriously injuring the plaintiff.

The defendant insured Mr. Kenyon's vehicle on the date in question.   Plaintiff claims uninsured motorist benefits pursuant to Conn. Gen.Stat. § 38a–336.

On July 11, 2011, the defendant moved for summary judgment.   On October 21, 2011, the defendant filed a supplemental memorandum in which it submitted additional exhibits in support of its motion.   On November 4, 2011, the plaintiff filed an objection to the defendant's motion and a memorandum in support of its objection with exhibits.   The court heard oral argument on November 7, 2011.

DISCUSSION

The factual basis for the plaintiff's claim is not well explained in his complaint.   All he alleges is that he was shot with a paintball gun, by an unidentified assailant;  while he was riding as a passenger in a vehicle insured by the defendant.   In his reply to the subject motion, plaintiff states that the shot came from “a parking area/lot that was filled with automobiles and the unidentified shooter used an unidentified motor vehicle to conceal himself when shooting me.”  (Plaintiff's Affidavit, ¶ 7.)   Plaintiff claims that these facts are sufficient to trigger defendant's uninsured motorist coverage.   The court disagrees.

The insurance policy at issue contains the following pertinent language:

if you pay the premium for Uninsured/Underinsured Motorist Coverage, we will pay for damages, other than punitive, exemplary, or statutory multiple damages, which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury:

1. sustained by an insured person;

2. caused by an accident;  and

3. arising out of the ownership, maintenance, or use of an uninsured motor vehicle.

(Emphasis in original.)

If plaintiff is to recover uninsured motorist benefits under this policy, he must ultimately prove a bodily injury (1) sustained by an insured person;  (2) caused by an accident;  and (3) arising out of the ownership, maintenance, or use of an uninsured motor vehicle.   The defendant argues only that the second and third requirements have not been met.   The court finds that plaintiff has not and cannot meet the third requirement of the policy, and that defendant is therefore entitled to summary judgment in its favor.

“[I]t is generally understood that for liability for an accident or an injury to be said to ‘arise out of’ the ‘use’ of an automobile for the purpose of determining coverage under the appropriate provisions of a liability insurance policy, it is sufficient to show only that the accident or injury ‘was connected with,’ ‘had its origins in,’ ‘grew out of,’ ‘flowed from,’ or ‘was incident to’ the use of the automobile, in order to meet the requirement that there be a causal relationship between the accident or injury and the use of the automobile.”  Hogle v. Hogle, 167 Conn. 572, 577 (1975).

In Hogle, the plaintiff passenger brought suit against the defendant driver to recover damages for personal injuries sustained when the vehicle operated by the defendant collided with a tree.   The plaintiff argued that the collision was caused by the defendant's negligent operation of the automobile.   The trial court granted the defendant's motion to cite in his homeowner's insurer as a third-party defendant.  Id., 574–75.   The defendant, as third-party plaintiff, argued that his homeowner's insurer was obligated to pay any judgment rendered against him in the original action because his dog “had jumped from the rear seat of the car to the left front window, striking [him] while he was driving, and had caused the accident.”   The defendant further argued that his homeowner's insurance policy covered “any injury or damage caused by the activities of any dog he owned.”   The homeowner's insurer argued that it was not obligated to pay the judgment because of an exclusion from coverage in its policy for the operation or use of automobiles while away from the covered premises.  Id., 575–76.

Applying this standard, our Supreme Court stated that the obligation of the homeowner's insurer to pay the judgment “does not depend on whether it was [the defendant's] negligent operation of the car, or the activities of his dog inside the car, which constituted the ‘proximate cause’ of the accident, and, consequently, of [the plaintiff's] injuries, as [the defendant] contends.   Such obligation, rather, depends in this case on another fact, namely, whether [the defendant's] ‘use’ of his car was connected with the accident or the creation of a condition that caused the accident.”  Id., 578.   The Court held that there was no genuine issue of fact as between the defendant and the homeowner's insurer that the defendant's “use of the automobile was in some way ‘connected with’ the accident which resulted in the injuries complained of by [the plaintiff].”  Id.

Not every connection between an uninsured motor vehicle and a plaintiff's injury is sufficient.   For an injury to arise from the use of an uninsured motor vehicle, that use must cause or lead to the injury.   Gildersleeve v. Travelers Home & Marine Ins. Co., Superior Court, J.D. of New Haven, Docket No. CV 08 5024259 (December 29, 2009, Robinson, J.) (49 Conn. L. Rptr. 67, 68).   In Gildersleeve, the court granted the defendant's motion for summary judgment on the following undisputed facts:  The plaintiff, while driving down a one-way street, “encountered another vehicle stopped in the middle of the road.   The unknown operator of the vehicle was conversing with a pedestrian who was leaning against it.”  Id., 67.   After waiting approximately thirty to forty seconds, the plaintiff honked his vehicle's horn.  Id. “The unknown driver pulled over.   As the plaintiff attempted to pass, the pedestrian threw a glass bottle toward the plaintiff's vehicle,” breaking the plaintiff's window, hitting him in the face and injuring him.   The court held that there may have been a connection in time between the pedestrian's actions and the operation of the unknown motor vehicle and that there appeared to have been a relationship and interpersonal connection between the pedestrian and the operator of the unknown vehicle.   There was no evidence “from which a trier of fact could reasonably conclude that the pedestrian and the operator of the unknown vehicle acted in concert, or that the pedestrian was reacting as a result of the operation of the unknown vehicle.”   This meant that there was “no evidence to support the conclusion that it was the use or operation of the vehicle [that] caused or led to the actions of the pedestrian.”   See also Walsh v. Nationwide Mutual Ins. Co., Superior Court, J.D. of Ansonia–Milford, Docket No. CV 95 0050665 (April 9, 1998, Grogins, J.) (22 Conn. L. Rptr. 10, 12).  (An injury may arise out of the use of an uninsured motor vehicle if the vehicle is used “in a manner such that it was a necessary element in the infliction of the injury. .).

In Mills v. Colonial Penn Ins. Co., 47 Conn.Sup. 17, 29 (2000) [28 Conn. L. Rptr. 471]. the plaintiff alleged that she was stopped at an overhead traffic signal when “a maroon colored vehicle suddenly and without warning entered into the intersection in the opposite lane and discharged gunshots which struck [me].”  (Internal quotation marks omitted.)  Id., 18.   Judge Blue denied defendant's motion for summary judgment, finding that “[t]he 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.”  (Internal quotation marks omitted.)  Id., 29, quoting Lindstrom v. Hanover Ins. Co., 138 N.J. 242, 252, 649 A.2d 1272 (1994), overruled on other grounds Shaw v. Jersey City, 174 N.J., 567, 811 A.2d 404 (2002).

Judge Sheedy denied a motion for summary judgment in Padillo v. Allstate Ins. Co., J.D. of Fairfield, Docket No. CV00–0375169 (June 19, 2002) [32 Conn. L. Rptr. 325], where the claimant was shot by the driver of another, allegedly uninsured vehicle.   Padillo is distinguishable from the present case because Judge Sheedy was concerned with whether or not that shooting was an “accident” within the meaning of the policy.   Both Mills and Padillo are further distinguishable from this case, as they both involve tortfeasors who were physically occupying motor vehicles when they inflicted the injuries in question.¹  The person who shot Mr. McCluskey was, according to the plaintiff, hiding behind a parked car when he fired the paintball which struck the plaintiff.   Taking cover behind a parked car to commit a tortious act simply does not constitute the use or operation of the vehicle within the meaning of the subject policy.   Plaintiff's assailant could just as well have been hiding behind some other object large enough to conceal him.

CONCLUSION

The defendant has demonstrated that it is entitled to judgment as a matter of law.   Plaintiff has not shown the court that there is any genuine issue of material fact.   The court finds that plaintiff's injuries did not arise out of the ownership, maintenance or use of an uninsured motor vehicle.   Therefore, the plaintiff is not entitled to uninsured motorist benefits under the defendant's policy.

Defendant's motion for summary judgment is therefore granted.   It is so ordered.

Miller, J.

FOOTNOTES

FN1. Judge Rittenband has held that a drive-by shooting did not arise from the use of an uninsured vehicle and granted summary judgment for the insurer in Espinosa v. Atlantic Casualty Co., 46 Conn.Sup. 614 (2000) [27 Conn. L. Rptr. 309]..  FN1. Judge Rittenband has held that a drive-by shooting did not arise from the use of an uninsured vehicle and granted summary judgment for the insurer in Espinosa v. Atlantic Casualty Co., 46 Conn.Sup. 614 (2000) [27 Conn. L. Rptr. 309].

Miller, Grant H., J.