# American National Property & Casualty Co. v. Julie R.

> California Court of Appeal · November 8, 1999 · 90 Cal. Rptr. 2d 119

URL: https://www.frixlaw.com/law-library/cases/9751377

## Case

- **Full name:** AMERICAN NATIONAL PROPERTY AND CASUALTY CO., Plaintiff and Respondent, v. JULIE R., Defendant and Appellant
- **Court:** California Court of Appeal
- **Decided:** November 8, 1999
- **Citations:** 90 Cal. Rptr. 2d 119; 76 Cal. App. 4th 134; 99 Daily Journal DAR 11393; 99 Cal. Daily Op. Serv. 8949; 1999 Cal. App. LEXIS 978
- **Precedential status:** Published
- **Opinion:** Dissent by Epstein
- **Judges:** Kuhl, Epstein
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9751377

## How later opinions describe it (automated extraction)

- concluding that “[m]ere use of a vehicle in some way connected to the events giving rise to the injury is insufficient”; use of the vehicle must be a “predominating cause” or “substantial factor” in causing the injury (citations omitted)
- explaining that coverage clauses are to be interpreted broadly “‘so as to afford the greatest possible protection to the insured ....’”

## Opinion text

EPSTEIN, Acting P. J., Dissenting.
A man so operates and positions his car as to imprison his passenger, whom he then rapes. The more detailed pertinent facts are these: the man drove the young woman, soon to be his victim, to Malibu, then to Hollywood where they had dinner. He then drove the car, with the lady as a passenger, onto a freeway and pulled over in such a way that the passenger door was pressed against a chain link fence. The passenger door also was locked. When the man made sexual advances toward the woman, she tried to get out of the car. She could not, because the passenger car door was locked with the window up, and she could not find the control panel to lower it. She also was too far back in the seat, which the man had reclined, to kick out the front window, although she tried to do so. The man took advantage of these circumstances to rape her.
In employing the car as a cage to imprison the woman, was the attacker using it in such a way that the victim’s injuries arose out of the “use of a motor vehicle”? To ask that question is to answer it. The answer is “yes.”
*146 The vehicle was uninsured. The woman was insured under the uninsured and underinsured motorist provision of her father’s policy. 1 (Henceforth, I shall use the term “uninsured motorist” to refer to both uninsured and underinsured motorists.) That policy covered injuries resulting from use of an uninsured vehicle. The precise question before us is whether the policy, which reflects a mandatory statutory provision (Ins. Code, § 11580.2), covers the circumstances of this case. I believe that it does, and, given the posture in which the case is presented to us, the trial court erred in granting summary judgment in favor of the respondent insurer.
The posture of the case precludes our consideration of whether the uninsured motorist statute requires an “accident” to trigger coverage (it does not use that term) and whether the Legislature intended it to apply to injuries inflicted by the intentional tort of an uninsured motorist. Language in several cases views the legislative purpose as being to provide the same protection to a person who is injured by an uninsured motorist as that person would have if the tortfeasor had insurance covering the incident. (See Farmers Ins. Exchange v. Hansel (1970) 12 Cal.App.3d 570, 572 [ 90 Cal.Rptr. 654 ]; Rowe v. Farmers Ins. Exchange (1992) 7 Cal.App.4th 964, 967 [ 9 Cal.Rptr.2d 314 ].) Sometimes this is expressed in terms of fulfilling the reasonable expectations of the insured party. (See, e.g., United Services Automobile Assn. v. United States Fire Ins. Co. (1973) 36 Cal.App.3d 765, 770 [ 111 Cal.Rptr. 595 ] and cases cited.) It is not likely that the parties to such a policy contemplated use of the vehicle to commit an intentional tort. Yet there are numerous cases that inform us that uninsured motorist coverage does apply to intentional torts committed by an uninsured motorist. (See, e.g., National American Ins. Co. v. Insurance Co. of North America (1977) 74 Cal.App.3d 565, 571 [ 140 Cal.Rptr. 828 ] [eggs thrown at pedestrians from a moving vehicle]. Of course, in an action against a third party tortfeasor, Insurance Code section 533, which bars coverage for willful acts, may be a defense to the carrier.)
The issue is interesting, but I agree with the majority that the posture of this case prevents us from reaching it. (Maj. opn., ante, at p. 138, fn. 1.) We must assume, for purposes, of this case, that there is no prohibition against application of the uninsured motorist statute to intentional tort situations.
The leading case in the field is State Farm Mut. Auto. Ins. Co. v. Partridge (1973) 10 Cal.3d 94 [ 109 Cal.Rptr. 811 , 514 P.2d 123 ]. In the more than *147 quarter century that has passed since that case was decided, our high court has not seen fit to modify or limit the language it used then. In Partridge , the court said that the “arising out of’ formula “has broad and comprehensive application, and affords coverage for injuries bearing almost any causal relation with the vehicle. . . .” (Id. at p. 100.) In a significant footnote, the court observed that in cases involving the discharge of a firearm in a vehicle (the situation in Partridge), coverage had been denied where there was “absolutely no causal relation between the accidental firing of the gun and the use of the automobile. . . . Whenever circumstances reveal that the insured vehicle did bear some, albeit slight, causal connection with the shooting accident, courts have generally permitted recovery under automobile liability policies.” (Id. at p. 101, fn. 8, italics in original.)
The court refined the amount of use needed to trigger coverages. It need not amount to proximate cause; “[sjome minimal causal connection between the vehicle and an accident is, however, required. ‘Although the vehicle need not be, in the legal sense, a proximate cause of the injury, the events giving rise to the claim must arise out of, and be related to, its use.’ ” (State Farm Mut. Auto. Ins. Co. v. Partridge, supra, 10 Cal.3d at p. 100, fn. 7 , quoting Entz v. Fidelity & Casualty Co. (1966) 64 Cal.2d 379, 385 [ 50 Cal.Rptr. 190 , 412 P.2d 382 ].)
As the majority point out, some later cases have added new qualifications: that the use be a predominant or substantial factor in bringing about the injury. I see no justification for a predominance requirement, but I will accept that the use or operation of the vehicle must be a substantial (as opposed to insubstantial) factor in bringing about the injury. To borrow the majority’s metaphor (maj. opn., ante, at p. 142), there is no coverage if the role of the vehicle is merely that of “furniture.” Farmers Ins. Exchange v. Hansel, supra, 12 Cal.App.3d at page 572 provides a useful example. In that case the tortfeasor broke a bottle on a car bumper, then used the broken bottle as a weapon; he also tried to use a car door as a shield. The court held that the resulting injury did not arise out of use of the vehicle. Those facts bear no resemblance to our case. In our case, the vehicle was not used as a passive piece of furniture, but as a cage to prevent the victim from escaping, thus enabling the motorist to commit the act of rape.
The majority cite authority to the effect that the mere circumstance that a vehicle is used to transport someone to the site where an injury occurs (e.g., Truck Ins. Exch. v. Webb (1967) 256 Cal.App.2d 140 [ 63 Cal.Rptr. 791 ] [vehicle used to transport boxes to a location where they were negligently *148 burned; no coverage]) is not enough for coverage, and I agree. But, again, that is hardly our case.
Nor is coverage prevented by the obvious fact that the rape would not have occurred if the driver had not willed it. The same thing, or something like it, is true in virtually every case in which a vehicle is used in the commission of a tort, particularly an intentional tort.
The majority say that, although the uninsured motorist used physical aspects of the car to confine the victim (maj. opn., ante, at p. 142), neither movement of the car nor its operation contributed to the attack. “Operation” is a concept broader than driving, and includes acts that are fairly regarded as necessary incidents to driving a vehicle. Use is an even broader concept. “It extends to any activity utilizing the vehicle.” (Cabral v. Los Angeles County Metropolitan Transportation Authority (1998) 66 Cal.App.4th 907 , 914 [ 78 Cal.Rptr.2d 385 ].) In our case, the driver drove the vehicle to a stop so that the passenger door was pressed against a fence. That is “operation.” He locked the passenger window in a closed position and reclined the passenger seat, assuring the inability of the victim to get away. That is in “use” of the vehicle.
Other cases cited in the majority’s canvass, and by the parties, might also be discussed, and either applied or distinguished. No case has been cited in which a vehicle was used to transport the victim to a remote location where the vehicle itself was used as a trap to prevent her escape.
One of the cited cases, however, illustrates by contrast the distinction between “furniture” or happenstance use of a vehicle, and use of the vehicle as a significant factor in commission of a tort. The case is Peters v. Firemen’s Ins. Co. (1998) 67 Cal.App.4th 808 [ 79 Cal.Rptr.2d 326 ]. (Maj. opn., ante, at p. 139.) That is the case where a man, operating a boat, had consensual sex with a woman passenger while the boat was sailing in the Catalina channel. The lady contracted heipes as a result of the encounter and the issue, of course, was whether her injury arose out of use or operation of the vessel. The court found no basis to conclude that the boat was a substantial factor in bringing about the woman’s injury: it simply happened to be the situs of the rendezvous. But suppose the lady had been lured onto the boat and attacked at sea where she had no means of escape. Would the case have turned out differently? I think so.
In this case, the trial Court found no triable issue of material fact, and granted summary judgment in favor of the insurer. My colleagues agree, *149 believing the car no more than “furniture.” (Maj. opn., ante, at p. 142.) It was more than that. Its use was a substantial factor in enabling the rape of the victim. I respectfully dissent.
I agree with the majority (maj. opn., ante, at p. 138.) that there is no difference between the phrase “result from” use or operation of the vehicle, used in the uninsured motorist statute, and the phrase “arising out of,” which is typically used in liability cases. Consequently, liability cases construing the latter are pertinent here.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9751377. Public record. Not legal advice.