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Being shot from a passing car is not a sustainable UM statement



Insurance is important because it protects the insured against many risks of loss such as injuries from a collision and driving of an uninsured motor vehicle. However, insurance does not protect against any potential risk of loss.

In Joan Jones McGuire, et al. v. Motorists Mutual Insurance Company, et al., No. 29165, 2021-Ohio-3945, Court of Appeals of Ohio, Second District, Montgomery (November 5, 2021) Joan Jones McGuire and William McGuire appealed from the trial court's introduction of a summary judgment against them on their complaint about seeking benefits for uninsured motorists from Motorists Mutual Insurance Company. The complainants claimed that their Motorists Mutual car insurance extended the coverage of uninsured motorists to Joan McGuire, who was shot by a passenger in an unidentified motor vehicle. The trial court found that there was no coverage.

Factual and procedural history

On February 3, 2018, Joan McGuire was a passenger in a vehicle driven by her husband, William McGuire. The vehicle was covered by a mutual car insurance. William was the insured named under the insurance, which included coverage for uninsured motorists. As the McGuires family traveled on Third Street in Dayton, Ohio, the occupants of two other cars exchanged gunfire. Joan McGuire suffered serious injuries when a stray bullet hit her head. The other vehicles fled the scene and their passengers could not be identified.

After the shooting, Joan McGuire sought benefits for uninsured drivers under Motorists Mutual policy. The insurance company disputed her claim. McGuires then sued alleging breach of contract, requesting a declaratory judgment and specific performance, and claiming an unfair profit. The trial court found no coverage for uninsured drivers for three related reasons:

  1. the shooting was an intermediate cause of Joan McGuire's injury, unrelated to the use of an uninsured vehicle;
  2. the assistance that caused her injury was a firearm, not an uninsured motor vehicle ; and
  3. her damage did not arise from the ownership, maintenance or use of an uninsured motor vehicle,

Analysis

The substantive law of the claim under consideration determines whether a fact is "material". With regard to Motorists' Mutual policy, the interpretation of a liability insurance for cars raises a legal issue which a court of appeal is examining without respect to the court. In interpreting the terms of an insurance, the Court of Appeal is guided by rules for contract interpretation.

When provisions of an insurance contract are reasonably susceptible to more than one interpretation, they will be interpreted strictly against the insurer and generously in favor of the insured. However, this rule can not be used to create ambiguity where no one exists. The basic objective in interpreting insurance policies is to ascertain the intentions of the parties by reading the agreement in its entirety and to determine a reasonable interpretation of any disputed terms in a manner that is intended to give the agreement its intended effect.

Motorists Mutual's policy required McGuires to establish that the liability of the unknown owner or operator arose from the ownership, maintenance or use of a collision vehicle that hit or caused bodily injury without hitting the vehicle that Joan McGuire occupied. There was no evidence that the shooter's vehicle came into contact with the McGuire vehicle.

Although McGuires cites cases from various jurisdictions, they failed to address the decision of the Ohio Supreme Court in Howell v. Richardson, 45 Ohio St.3d 365, 544 NE2d 878 (1989), which we find to be dispositive in relation to the question of "ownership, maintenance or use". In Howell, a negligent offender fired a firearm from his vehicle into another vehicle, striking one of the occupants. After receiving a verdict against the tortfeasor, the victim sued the tortfeasor's insurer. The trial court ruled in favor of the insurer and found that the act of shooting from a vehicle fell outside the policy language covering bodily injury "caused by an accident resulting from the ownership, maintenance or use" of a motor vehicle. Ohio's Supreme Court has ruled that common sense could not find that the shooting was due to the "use" of a motor vehicle. It upheld the judgment and found that bodily injury to an insured person as a result of a tortfeasor firing a firearm is not covered by the terms of an insurance policy which limits the coverage to damages caused by an accident resulting from the ownership, maintenance or use of a car. [19659005] The Court of Appeal could not see any material difference between Howell and the present case as to whether Joan McGuire's injury was caused by the "use" of a motor vehicle. On the basis of Howell and the other cases, the court concluded that Joan McGuire's injury did not arise from the "ownership, maintenance or use" of an uninsured motor vehicle by law. Her injury was caused by the use of a firearm. Against this background, the district court correctly handed down a summary judgment in favor of Motorists Mutual regarding the appellants' complaints.

By law, there was no causal link between the ownership, maintenance or use of the uninsured motor vehicle and there was no causal link between the use of the uninsured motor vehicle and the bodily injuries sustained by the complainant as a result of the shooting

The District Court correctly ruled against the complainants on all four claims in their complaints. The claim for breach of contract failed because the appellants by law were not entitled to uninsured motorist cover. The request for a declaratory assessment regarding the right to coverage was rejected as the complainants were not entitled to uninsured motorist coverage. The request for specific performance under the provision on uninsured motorists was rejected because there was no coverage. Finally, the fact that a disclosed claim was rejected did not indicate unfair enrichment.

Since there was no contact between the vehicles nor did a vehicle cause any damage to Mrs. McGuire, there was no potential for coverage under the uninsured motor insurance provision. as it required the damage to result from the vehicle not firing a bullet from a car or any other location. It's sad that Mrs. McGuire was injured by a criminal who fired a weapon at someone else and unfortunately – since most criminals are not shooters – hit and injured her. Regardless, there was no possibility that the UM coverage applied and the court confirmed the trial court correctly.


© 2021 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his internship to the position of insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders.

He also acts as an arbitrator or mediator for insurance-related disputes. He practiced law in California for more than 44 years as a lawyer for insurance coverage and claims management and more than 54 years in the insurance industry.

Subscribe to Excellence in Claims Handling at https://barryzalma.substack.com/welcome.

He is available at http://www.zalma.com and zalma@zalma.com. Zalma is the first recipient of the first annual Claims Magazine / ACE Legend Award. For the past 53 years, Barry Zalma has devoted his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to enable insurers and their claimants to become professionals in insurance claims.

Go to training available at https://claimschool.com; articles at https://zalma.substack.com, the podcast Zalma On Insurance at https://anchor.fm/barry-zalma; Follow Mr Zalma on Twitter at https://twitter.com/bzalma ; Go to Barry Zalma videos at https://www.rumble.com/zalma; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to Insurance Claims Library – https://zalma.com/blog/insurance-claims-library/ T the last two issues of ZIFL are available at https://zalma.com/zalmas-insurance-fraud- letter -2 / podcast now available at https://podcasts.apple.com/us/podcast/zalma-on-insurance/id1509583809?uo=4


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