(Court of Appeals Certifies Question Regarding "Use of an Automobile" to the California Supreme Court)
In Gradillas v. Lincoln General Ins. Co., 792 F.3d 1050 (July 6, 2015), the United States Ninth Circuit Court of Appeals certified the following question to the California Supreme Court for its consideration:
When determining whether an injury arises out of the "use" of a vehicle for purposes of determining coverage under an automobile insurance policy and an insurance company's duty to defend, is the appropriate test whether the vehicle was a "predominating cause/substantial factor" or whether there was a "minimal causal connection" between the vehicle and the injury?
The Court of Appeals' certification of the above question regarding the use of an automobile arises out of the rape of the plaintiff by a bus driver who had parked his bus in a secluded area for purposes of committing the subject crime. The victim filed suit against the bus driver and the owner of the bus. Ultimately, the owner stipulated to the entry of a judgment in the amount of $2 million for the victim and $500,000 to the victim's husband. In return, the bus owner assigned all of his rights to the victim and her husband under the Lincoln General policy. Lincoln General had declined a duty to defend the claim by arguing that the rape of the plaintiff did not "arise out of the use" of the bus. Rather, the bus simply served as a situs of the wrongful conduct.
In requesting the Supreme Court to answer the certified question, the Court of Appeals stated as follows:
Explanation of Our Request
We seek the California Supreme Court's determination as to the proper test to apply in determining whether an injury arises out of the "use" of an automobile for purposes of determining the coverage of an automobile insurance policy and an insurer's duty to defend an insured. We ask for this assistance because the test to be applied in the context of this case will have a significant impact on these and similarly-situated parties, and there is insufficient guidance in the relevant statutes and case law to allow us to resolve this question.
Although a series of California Court of Appeal decisions, Safeco Ins. Co. of Am. v. Parks, 170 Cal. App. 4th 992, 1012, 88 Cal. Rptr. 3d 730 (2009); R.A. Stuchbery & Others Syndicate 1096 v. Redland Ins. Co., 154 Cal. App. 4th 796, 802, 66 Cal. Rptr. 3d 80 (2007); State Farm Mut. Auto. Ins. Co. v. Grisham, 122 Cal. App. 4th 563, 566-67, 18 Cal. Rptr. 3d 809 (2004); Cal. Auto. Ins. Co. v. Hogan, 112 Cal. App. 4th 1292, 1297, 5 Cal. Rptr. 3d 761 (2003); Am. Nat'l Prop. & Cas. Co. v. Julie R., 76 Cal. App. 4th 134, 140, 90 Cal. Rptr. 2d 119 (1999); Rowe v. Farmers Ins. Exch., 7 Cal. App. 4th 964, 971-72, 9 Cal. Rptr. 2d 314 (1992); Peters v. Firemen's Ins. Co., 67 Cal. App. 4th 808, 812-13, 79 Cal. Rptr. 2d 326 (1998); Farmers Ins. Exch. v. Reed, 200 Cal. App. 3d 1230, 1233, 248 Cal. Rptr. 11 (1988), has adopted or recognized the "predominating cause/substantial factor" test, we note that these decisions are in potential conflict with the California Supreme Court's instruction that the "vehicle need not be, in the legal sense, a proximate cause of the injury . . . ." State Farm Mut. Auto. Ins. Co. v. Partridge, 10 Cal. 3d 94, 109 Cal. Rptr. 811, 514 P.2d 123, 127 n.7 (1973). We also note that a handful of California Court of Appeal decisions have either employed the test in Partridge or noted that the test is not a settled question, Prince v. United Nat'l Ins. Co., 142 Cal. App. 4th 233, 244-45, 47 Cal. Rptr. 3d 727 (2006); Kramer v. State Farm Fire & Cas. Co., 76 Cal. App. 4th 332, 336-37, 90 Cal. Rptr. 2d 301 (1999); Interinsurance Exch. v. Flores, 45 Cal. App. 4th 661, 668-69, 53 Cal. Rptr. 2d 18 (1996); Nat'l Am. Ins. Co. v. Ins. Co. of N. Am., 74 Cal. App. 3d 565, 571, 140 Cal. Rptr. 828 (1977).
As we read California law, we do not know whether the district court in this case was required to apply the "substantial factor" test or a "minimal causal connection" test. We submit that this question is worthy of a decision by the California Supreme Court, and that this case presents a suitable vehicle for the California Supreme Court to address this question. See Cal. Rules of Court 8.548(a). The answer given by the California Supreme Court will dispose of this appeal currently pending before the Ninth Circuit.
On August 12, 2015, the California Supreme Court accepted the Court of Appeals' certified question for review.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
