Defense Digest

UM Benefits Not Available In "Road Rage" Assault: Limitations On Coverage Apparently Do Exist

The Delaware Supreme Court recently addressed the issue of whether a victim of a "road rage" assault is eligible for uninsured motorist benefits pursuant to a UM policy. In State Farm Mutual Automobile Insurance Company and Nationwide Assurance Company (k/n/a Colonial Insurance Company of Wisconsin) v. Richard D. Buckingham, III, Del. Supr., __ A.2d __, No. 350, 2006 Steel, C.J. (February 21, 2007), the Delaware Supreme Court applied the Klug test and concluded that uninsured motorist coverage is unavailable when an act of independent significance, such as an intentional criminal act of assault, breaks the causal link between the use of a vehicle and the infliction of injury to an insured.

On February 27, 1999, Robert D. Buckingham, III, was cruising in a 1996 Pontiac Firebird at approximately 9 p.m. when he stopped for a traffic light at the intersection of Route 72 and Route 4 in Newark, Delaware. An unidentified pick-up truck stopped directly behind his vehicle, and Buckingham noticed the truck's interior light briefly turn on and off. Buckingham did not see anyone exit the vehicle. Moments later, the unidentified driver of the pick-up truck was standing next to his vehicle, opened his door, and began assaulting Buckingham with what was believed to be a tire iron. During the assault, the unidentified assailant made several references to rocks flying up and striking his truck. The assailant returned to his vehicle and proceeded to drive off into the darkness. Unfortunately, neither Buckingham nor his passenger were able to ascertain the assailant's license plate number. Buckingham reported the incident to authorities, but the assailant was never located. As a result of this assault, Buckingham sustained numerous injuries, including a fractured skull, a fractured cheekbone, and a detached retina.

On July 30, 2003, Buckingham filed an action against State Farm and Nationwide seeking uninsured motorist benefits. The policy issued by State Farm contained the following language regarding uninsured motorist coverage:

The insurance policy issued by Nationwide contained similar language in terms of uninsured motorist coverage, and all parties agreed the unidentified assailant was an "uninsured motorist" under the terms of both policies. The seminal issue presented was whether the injuries sustained by Buckingham arose out of the operation, maintenance, or use of an uninsured motor vehicle.

Pursuant to Super. Ct. Civ. R. 16.1, the parties participated in mandatory, non-binding arbitration. Tracy A. Burleigh, Esquire, of our Wilmington office, served as arbitrator and found in favor of the defendants, concluding the injuries sustained by Buckingham did not arise out of the operation, maintenance, or use of the uninsured motor vehicle. Buckingham appealed the arbitrator's decision, and all parties filed Motions for Summary Judgment in Superior Court. The trial judge granted Buckingham's Motion for Summary Judgment, concluding the injuries he sustained did, in fact, arise out of the operation, maintenance, and use of the uninsured motor vehicle. State Farm and Nationwide filed a timely appeal to the Delaware Supreme Court.

The exclusive issue on appeal was whether Buckingham's injuries arose out of the operation, use, or maintenance of a motor vehicle under the terms of the insurance policies issued by State Farm and Nationwide. To resolve this issue, the Delaware Supreme Court applied the Klug test, a three-prong test enunciated in Continental Western Insurance Western Company v. Klug, 415 N.W.2d 876 (Minn. 1987) and adopted by the Delaware Supreme Court in National General Insurance Co. v. Royal, 700 A.2d at 132 (Del. 1997): (1) whether the vehicle was an "active accessory" in causing the injury; (2) whether there was an act of independent significance that broke the causal link between the use of the vehicle and the injuries inflicted; and (3) whether the vehicle was used for transportation purposes.

To be an "active accessory," the vehicle does not have to be a proximate cause of the injury, but must be more than the mere situs of the injury. Since the alleged provocation for the assault was rocks striking the assailant's vehicle, the Delaware Supreme Court concluded the vehicle was an "active accessory." The Court also summarily concluded the vehicle was used for transportation reasons since the vehicle transported the assailant to the site of the assault. Having found the first and third prongs of the Klug test satisfied, the second prong of the Klug test, whether an act of independent significance broke the causal link between the use of the vehicle and the injuries inflicted, became the sole determining factor.

While mindful of the longstanding Delaware principle that insurance contracts are liberally construed in favor of finding uninsured/underinsured motorist coverage, the Delaware Supreme Court recognized even liberal construction of insurance policies has its limits. Relying upon a fundamental principle of tort law that an intentional criminal act, such as battery, generally breaks the requisite causal connection, the Delaware Supreme Court concluded the assailant's intentional and criminal act of exiting his vehicle and assaulting Buckingham broke the requisite causal link between the vehicle and injuries sustained by Buckingham.

Buckingham further argued the causal connection was not disrupted because the "tire iron" used in the assault was an instrument used in the operation and maintenance of the vehicle. In rejecting this argument, the Court held that the focus should be placed upon the criminal intent of the assailant when he exited the vehicle, not the actual instrument he used to commit the assault.

The second prong of the Klug test having not been met, the Court held the injuries inflicted upon Buckingham by the unknown assailant did not arise "out of the ownership, maintenance or use of an uninsured motor vehicle." The Delaware Supreme Court reversed the trial court's decision and held the policies issued by State Farm and Nationwide did not provide uninsured motorist benefits to Buckingham.

Although Delaware courts have historically interpreted insurance policies broadly to find coverage under the theory that innocent insureds should be financially protected from individuals who tortiously utilize their automobiles without the ability to adequately compensate their victims, the Delaware Supreme Court finally placed a limitation on coverage preventing UM policies from being construed as, and converted into, general liability policies. In a court system which strives to find coverage, the Delaware Supreme Court, by defining an instance where the causal link between the uninsured vehicle and injuries was disrupted, apparently recognized some limitation must exist in modern society where the automobile is such an intricate part and will inevitably appear in almost every chain of events, ultimately resulting in the tortious conduct. Of course, in keeping with tradition, the Court also concluded the mere act of a rock striking the vehicle is sufficient to render the motor vehicle an "active accessory."

* Douglas is an associate in our Wilmington, Delaware, office. He can be reached at (302) 552-4375 or dtwalsh @mdwcg.com.