"No-Fault" Coverage Insures Injuries Arising Out of the Use of a Vehicle

November 2004

Courts throughout the nation have held that personal injury protection coverage includes injuries that may not necessarily involve a collision between vehicles, but may arise out of the use of the vehicle, even though the connection between the use of the vehicle and the injury is remote. In the absence of a causal connection through an accident or a use of the vehicle, PIP coverage usually will not apply.

by R. Brent Cooper and Dana Harbin
Cooper & Scully

Imagine the scenario. You have parked the car and turned the engine off. You unlatch the seatbelt. You open the vehicle door with the intent to get out of the car, but in a moment, your arm is caught by the seat belt or your foot is caught in the door, and you find yourself impulsively twisting to get loose or stumbling to keep from falling out of the car. That is when the injury occurs to your back, your arm, your leg, or maybe your foot.

You contact your automobile insurance agent and yes, you have coverage for your own carelessness. Courts throughout the nation have interpreted personal injury protection (PIP) insurance coverage in the personal auto policy and no-fault statutes mandating such coverage to insure these types of injuries. The only requirement is a causal connection, though tenuous, between the vehicle and the injury suffered.

Most jurisdictions have statutes that mandate no-fault insurance coverage for accidents resulting from or arising out of the use of a vehicle.¹ For example, article 5.06-3 of the Texas Insurance Code requires that every automobile liability policy "covering liability arising out of the use of any motor vehicle" include PIP coverage. TEX. INS. CODE ANN. art. 5.06-3 (emphasis added).

The issue for most courts when addressing no-fault coverage is the causal connection between the injury and the use of the motor vehicle. While a collision or near collision is not necessarily required to trigger PIP coverage, the vehicle must be more than the mere situs of the accident or injury-producing event. The vehicle must somehow be involved in causing the injury. For example, the Texas Supreme Court found PIP coverage for an injury suffered when the insured entangled his left foot on the raised portion of his truck's door facing while exiting the truck.²

In that regard, the general consensus among the courts is that no-fault coverage applies if a claimant sustains injuries from a slip-and-fall accident while entering into or alighting from the covered vehicle.³ Similarly, if a collision with another vehicle occurs while the claimant is entering into or alighting from the covered vehicle, courts find coverage.⁴

Courts, however, will not find no-fault coverage in the absence of a causal connection between the injury and the actual use of the vehicle. For example, in State Farm Mut. Ins. Co. v Peck, 900 SW2d 910, 913 (Tex App—Amarillo 1995, no writ), the court upheld the denial of PIP coverage when the only connection between the injury and the vehicle was the fact that the insured was sitting in the vehicle when he was bitten by a dog. The fact that the vehicle was the situs of the injury, in the absence of any causal connection to the vehicle itself, was not sufficient to trigger PIP coverage.

In that regard, courts generally deny coverage for injuries sustained from slip-and-fall accidents and collisions that occur prior to the process of entering or after exiting the vehicle. The cardinal issue, once again, is whether a close nexus exists between the use of the vehicle and the injury. The nexus could be one of proximate time or location.⁵

Conclusion

In summary, courts throughout the nation interpret PIP coverage to include injuries that may not necessarily involve a collision between vehicles, but may arise out of the use of the vehicle, even though the connection between the use of the vehicle and the injury is remote. In the absence of a causal connection through an accident or a use of the vehicle, PIP coverage usually will not apply.

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¹See, e.g.:

• Trinity Universal Ins. Co. v Hall, 690 P2d 227, 229 (Colo 1984) (en banc)

• Blish v Atlanta Cas. Co., 736 S2d 1151, 1153 (Fla 1999)

• State Farm Mut. Auto. Ins. Co. v Canady, 239 SE2d 152, 153 (Ga 1977)

• Kentucky Farm Bureau Mut. Ins. Co. v Hall, 807 SW2d 954, 955 (Ky App 1991)

• Putkamer v Transamerica Ins. Corp. of Amer., 563 NW2d 683, 686 (Mich 1997) ("The no-fault act is remedial in nature and is to be liberally construed in favor of the persons who are intended to benefit from it.")

• Ohio Cas. Group of Ins. Cos. v Gray, 732 A2d 1145, 1146 (NJ App 1999)

• Hill v Metro. Suburban Bus Auth., 555 NYS2d 803, 806 (NY App Div 1990)

• State Farm Mut. Auto. Ins. Co. v Estate of Gabel, 539 NW2d 290, 292 (ND 1995)

• Schweitzer v Aetna Life & Cas. Co., 452 A2d 735 (Pa App 1982)

• Texas Farm Bureau Mut. Ins. Co. v Sturrock, 2004 WL 1908330 (Tex, Aug. 27, 2004).

²Texas Farm Bureau Mut. Ins. Co. v Sturrock, 2004 WL 1908330 (Tex, Aug. 27, 2004).

³See:

• Walker v M & G Convoy, Inc., No. CIV.A. 88C-DE-191, 1989 WL 158511, at *1 (Del Super Nov. 2, 1989) (concluding that claimant who slipped and fell on ice while securing cars on his employer's car trailer was an occupier of the vehicle and therefore entitled to PIP coverage)

• Padron v Long Island Ins. Co., 356 S2d 1337, 1339 (Fla App 1978) (concluding that injuries sustained by motorist whose left foot slid as he stepped out of car on driver's side, causing right leg to hit bottom part of car door, thereby breaking leg, was bodily injury arising out of use of motor vehicle for which motorist was entitled to PIP benefits)

• Putkamer, 563 NW2d at 688 (concluding that injuries sustained when person slipped on ice while entering car were covered by statutory scheme for PIP coverage)

• Haagenson v National Farmers Union Prop. & Cas. Co., 277 NW2d 648, 651 (Minn 1979) (upholding jury verdict that no-fault provisions covered claimant's injuries suffered while entering motor vehicle)

• Hill, 555 NYS2d at 805-06 (concluding that injuries suffered when a claimant caught her arm in the bus door and then tripped on a nail or tile on the floor were covered by no-fault scheme)

• Berry v Dairyland County Mut. Ins. Co., 534 SW2d 428, 429 (Tex Civ App—Fort Worth 1976, no writ) (concluding PIP coverage existed for injuries sustained when claimant snapped the cartilage in his knee while exiting car); S. Surety Co. v Davidson, 280 SW 336, 337 (Tex Civ App—Fort Worth 1926, no writ) (concluding that coverage existed for injuries sustained when claimant stepped on a brick while exiting the car); cf. Parker v Atlanta Cas. Co., 278 SE2d 119, 120 (Ga App 1981) (PIP coverage was not available when claimant stepped on grease when alighting from car only because the policy excluded conduct within the course of business of repairing or servicing vehicles, unless conduct also involved "actual operation of a motor vehicle as a vehicle on business premises")

⁴See:

• Allstate Ins. Co. v Howe, 623 A2d 1031, 1034 (Conn App 1993) (finding that UIM coverage existed for injuries sustained when claimant was grasping door handle prior to being struck)

• State Farm Mut. Auto. Ins. Co. v Vaughn, 558 SE2d 769, 771 (Ga App 2002) (finding that a student was "using" a school bus, and thus was entitled to UM insurance, when she was hit by a vehicle while crossing the road to gain entry to the bus)

• Lumbermen's Mut. Cas. Co. v Norris, 303 NE2d 505, 507 (Ill App 1973) (UM coverage existed for passenger who got off car's fender to avoid oncoming car but was struck nonetheless)

• Aucoin v Lafayette Ins. Co., 771 S2d 95, 100 (La App 2000) (UM insurance covered injuries sustained while leanin• Hunt v Citizens Ins. Co., 455 NW2d 384, 386 (Mich App 1990) (finding that PIP coverage existed for victim of hit-and-run accident because he was in the process of entering the vehicle when hit)

• Olsen v Farm Bureau Ins. Co., 609 NW2d 664, 671 (Neb 2000) (holding that liability insurance covered the injuries sustained when claimant exited car and was struck by a live wire because the claimant was still occupying the vehicle)

• Travelers Indem. Co. v Commercial Union Ins. Cos., 533 A2d 765, 767-68 (Pa App 1987) (holding UM policy owed benefits for injuries sustained when claimant's car was struck while he was seated in his car with his left foot still on the ground)

• Whitmire v Nationwide Mut. Ins. Co., 174 SE2d 391, 395 (SC 1970) (UM coverage existed for injury sustained by insured while running away from parked car after noticing its imminent collision with an oncoming vehicle)

• National Life & Accident Ins. Co. v Hunter, 519 SW2d 709, 710-11 (Tex Civ App—Beaumont 1975, writ ref'd n.r.e.) (testimony that decedent had not let go of the automobile from which he had emerged permitted the trial court to conclude that insured was a passenger entitled to coverage)

• Newman v Erie Ins. Exch., 507 SE2d 348, 352 (Va 1998) (finding that a student was "using" a school bus, and, thus, was entitled to UM insurance, when she was hit by a vehicle while crossing the road to gain entry to the bus)

⁵See:

• Chamblee v State Farm Mut. Auto. Ins. Co., 601 S2d 922, 924 (Ala 1992) (liability coverage denied for injuries to child sustained when child darted into street from median while crossing the street after exiting parked vehicle, as this constituted new activity that was disassociated from the "use" of the vehicle)

• Testone v Allstate Ins. Co., 328 A2d 686, 690 (Conn 1973) (tow truck worker was not entitled to UM coverage because he was two or three feet from vehicle when injured and was, therefore, not entering the vehicle)

• Adamkiewicz v Milford Diner, Inc., No. 90C-JA-23, 1991 WL 35709, at *1 (Del App 1991) (slip and fall on ice not covered under PIP policy because claimant was merely walking toward vehicle)

• State Farm Mut. Auto. Ins. Co. v Yanes, 447 S2d 945, 946 (Fla App 1984) (UM coverage did not exist because claimant had finished exiting the vehicle and had started new act of walking across the street)

• Cole v N.H. Ins. Co., 373 SE2d 36, 38 (Ga App 1988) (claimant who slipped and fell against the car was not covered by no-fault insurance, as she was not "engaged in the 'immediate' act of entering into or alighting from" the vehicle)

• Allstate Ins. Co. v Horn, 321 NE2d 285, 291 (Ill App 1974) (UM coverage denied for claimant who was 24-feet away from vehicle he intended to enter when accident occurred)g against car)

• Crear v National Fire & Marine Ins. Co., 469 S2d 329, 336-37 (La App 1985) (UM coverage denied for injuries suffered when claimant was struck while walking through drive-through area of post office parking lot)

• Rednour v Hastings Mut. Ins. Co., 661 NW2d 562, 567 (Mich 2003) (claimant was not occupying his vehicle when struck by a moving vehicle while walking around his own car to change the tire, and, thus, was not entitled to PIP coverage)

• Block v Citizens Ins. Co. of Amer., 314 NW2d 536, 538 (Mich App 1981) (no-fault coverage denied for a slip-and-fall on ice before insured reached vehicle)

• Steinfeldt v AMCO Ins. Co., 592 NW2d 877, 879-80 (Minn App 1999) (injury suffered while attempting to assist victims of a motor vehicle accident on an adjacent road not covered under no-fault provisions)

• State Farm Mut. Auto. Ins. Co. v Farmers Ins. Co., 569 SW2d 384, 386 (Mo App 1978) (court distinguished entering a vehicle from approaching a vehicle with the intention of entering, concluding that the claimant fell within the latter category)

• Ertelt v EMCASCO Ins. Co., 486 NW2d 233, 235 (ND 1992) (claimant's injuries from heart attack suffered twenty feet away from vehicle not covered under no-fault insurance)

• Aversano v Atl. Employers Ins. Co., 676 A2d 556, 557-58 (NJ App Div 1996), aff'd, 701 A2d 129 (1997) (PIP coverage denied for injuries sustained when claimant fell in a pothole while reaching for his vehicle with keys extended and ready to unlock the door because he had not first made physical contact with the vehicle)

• Hurwich v New York City Transit Auth., 415 NYS2d 693, 693 (NY App 1979) (affirming denial of no-fault benefits because claimant admitted that she was completely off the bus when she fell)

• Estate of Jordan v Colonial Penn Ins. Co., 537 A2d 14, 18 (Pa App 1988) (claimant was no longer an "occupant" of vehicle after walking 3/4 of a mile down the highway) Fulton v Tex. Farm Bureau Ins. Co., 773 SW2d 391, 392 (Tex App—Dallas 1989, writ denied) (PIP and UM coverage do not extend to a passenger freely walking outside the vehicle at the time of the accident)

• Flores v Dairyland County Mut. Ins. Co., 595 SW2d 893, 894-95 (Tex Civ App—Eastland 1980, writ ref'd n.r.e.) (no recovery under PIP policy for injuries sustained when claimant tripped after taking four steps away from insured vehicle)

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Dana Harbin is an attorney in the Dallas office of Cooper & Scully, P.C. where she specializes in insurance coverage and bad faith involving all types of insurance policies, both first and third party. Ms. Harbin earned her BA degree from the University of Texas in Arlington and her JD degree from the University of Texas at Austin. She can be reached at .

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