Uninsured Motorist (UM) Insurance coverage can save policyholders headaches and provide support when they are involved in an accident with an uninsured driver. With growing concern over crime in our cities, the question becomes whether this coverage is available to policyholders for things such as drive-by shootings. Inherent in the name – drive-by – there is no doubt that the crime is tangentially connected to cars. Most of the time, that car is long gone when the victims look to recover. In terms of insurance, on its face this seems like it would be analogous to a hit and run accident – one of the most common circumstances for invoking a policyholder’s UM coverage. However, an interpretation of the applicable policy language and case law reveals that victims of drive-by shootings will not have coverage under their UM policies.
Most policies of insurance contain the following language in their UM coverage section, or something to this effect:
“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 me sustained by an insured and caused by an accident arising out of the operation, maintenance or use of an uninsured motor vehicle.”
When it comes to interpreting automobile liability policies, Schmidt v. Utilities Ins. Co., 182 S.W.2d 181 (Mo. 1944), albeit an old case, announced the leading doctrine on construing what “arising out of” means. To the Supreme Court of Missouri, “arising out of” is “understood to mean ‘originating from’ or having its origin in,’ ‘growing out of’ or ‘flowing from.’” Id. at 219. The plaintiff in Schmidt had been walking down the street when he tripped over wooden blocks placed on the sidewalk by two truck drivers while unloading their deliveries, and the plaintiff was injured. The driver’s company’s insurance stated they would pay “all sums which the insured shall become obligated to pay … because of bodily injury … sustained by any person or persons, caused by accident and arising out of the ownership, maintenance, or use of the automobile.” Id. at 218 (emphasis added.).
The Supreme Court of Missouri noted that injuries do not “arise out of the use of the trucks if it was directly caused by some independent act, or intervening cause wholly disassociated from, independent of and remote from the use of the trucks.” Id. at 219. In applying its logic, the Court found that the blocks on the sidewalk were there “to facilitate the use and operation of the trucks, as trucks, and then negligently [placed] on the sidewalk where they might be retained … and be available for future use.” Id. at 222. In short, the Court found the blocks arose out of the use of the trucks and there were no intervening causes of the injury.
Turning this working standard of the definition of “arising out of” to gunshots in a general manner, subsequent courts have declined to extend policies to cover them. In Cameron Mut. Ins. Co. v. Ward, 599 S.W.2d 13 (Mo. App. W.D. 1980), the plaintiff/policyholder was shot after exiting his vehicle. A rifle in the policyholder’s truck discharged, shooting the policy holder. Id. at 17. The court determined that “the truck was the mere “situs” or “locus” of the accident and that the … resultant injury sustained … did not “arise out of the use of the truck.” Id. at 18. This had major implications for how Missouri courts view gunfire relating to cars going forward, especially in the context of drive-by shootings. As a more general rule, not just relating to gunfire, another court made the assertion that, “under Missouri law the automobile must be more than just the situs of the injury; it must be the instrumentality which caused the injury.” Lemmons v. Prudential Property & Casualty Ins. Co., 878 S.W.2d 853, 856 (Mo. App. E.D. 1994). In short, subsequent Missouri courts differentiate injuries that happen because of cars with injuries that happen around cars.
In Ward v. International Indem. Co., 897 S.W.2d 627 (Mo. App. E.D. 1995), a passenger in an unidentified motor vehicle shot and killed the plaintiff/policyholder while he was driving his own vehicle, and his estate brought action against his own insurer under the uninsured motorist provision in the policy. Id. at 628. The trial court granted summary judgment for the insurance company on the grounds that the injury was not recoverable under the policy. Id. The operative policy language was, “[t]he damages must result from bodily injury sustained by the insured caused by an accident.” Id. While the shooting was a terrible occurrence, the court noted that “[i]njuries inflicted on a victim of a drive-by shooting by the occupant of a motor vehicle are not injuries which arise out of the ‘use’ of the motor vehicle because the motor vehicle is merely the ‘situs’ or ‘locus’ of the cause of the victim’s injuries and the discharge of the gun is unconnected to the inherent use of the motor vehicle.” Id. at 629 (citing Steelman v. Holdford, 765 S.W.2d 372, 378 (Mo. App. 1989) (see also Ford v. Monroe, 559 S.W.2d 759 (Mo. App. 1977) (an insured’s passenger injured by shots fried from an uninsured vehicle could not recover under the uninsured motorist clause of insured’s policy because the bullet injury was not caused by an accident “arising out of the ownership, maintenance or use” of the uninsured vehicle.).
The 8th Circuit Court of Appeals affirmed a federal district court applying Missouri law that came to the same conclusion. In Patel v. LM Gen. Ins. Co., 922 F.3d 875 (8th Cir. 2019), the policyholder was sitting in his car when he was the victim of a drive by shooting. Id. at 876. Their estate filed a lawsuit against the insurance company to recover under the UM coverage provisions of his automobile insurance policy. Id. The district court granted summary judgment for the insurance company because any liability of the uninsured motorist did not “arise out of the use” of the uninsured vehicle. Id. The operative language of the insurance policy was, “the owner’s or operator’s liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle.” Id. at 877. The 8th Circuit concluded that “[i]njuries inflicted on a victim of a drive-by shooting by the occupant of a motor vehicle are not injuries which arise out of the ‘use’ of the motor vehicle because … the discharge of the gun is unconnected to the inherent use of the motor vehicle.” Id. at 879 (quoting Ward, 897 S.W.2d at 629).
Drive-by shootings are becoming all too common in Missouri and when they happen, victims are often left looking to pick up the pieces. While some may look to their own automobile insurance policy’s uninsured motorists provision because their experience has similarities to hit-and-run accidents, Missouri courts have consistently held that the firing of a gun is not connected to the inherent use of a motor vehicle and bullet injuries are not caused by actions arising out of the ownership, maintenance, or use of vehicles. This has implications not only for the victims of drive-by shootings, but also insurance companies who may have to tell their policyholders that their recovery lies outside the bounds of the uninsured motorist policies.
Of course, the specifics of every incident is particular to that case, and variations in the facts could lead to different outcomes. If you need assistance interpreting the coverages in your policy, give one of our experienced insurance coverage lawyers a call and we can assist in a review and application of the specific facts of your incident to the language of the policy and the law of the applicable state.
Article written by Law Clerk David Miller | Gausnell, O’Keefe & Thomas, LLC