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The First District Court of Appeal affirmed the trial court's decision to grant defendant auto insurer's motion for summary judgment. In doing so, the Court held that the insured's liability for rape did not arise out of the "use" of its vehicle.
The insured is M & M Luxury Shuttle, Inc. (M & M), a shuttle service operator. Collie Downer was an M & M driver during all relevant times. The underlying plaintiff ("victim"), a run away 16 years old girl, saw Downer with the shuttle in front of a diner. She asked him to take her to a homeless shelter, and Downer agreed. But Downer later told her the shelters were closed until 6:00 a.m., and that she could sleep in his apartment while he returned to work. When inside Downer's apartment, he allegedly raped the victim. She filed an action against Downer and M & M for numerous causes of action, including assault and battery.
M & M had two policies in place during all relevant times: 1) a general liability policy issued by R. A. Stuchbery & Others Syndicate 1096, as Underwriters at Lloyds ("Stuchberry"); and 2) an auto liability policy issued by Redland Insurance Company ("Redland"). M & M tendered the suit to both Stuchbery and Redland. Only Stuchberry accepted, and ended up incurring $274,549.40 in defense costs, and $250,000 to settle the underlying action with the victim.
Thereafter, Stuchberry filed the present coverage action against Redland for reimbursement and equitable contribution. The trial court granted Redland's motion for summary judgment, and the California Court of Appeal affirmed.
Redland's policy covered M & M for bodily injury liability resulting from the "use" of M & M's shuttle. The Court explained the majority of California decisions considering whether an injury results from the "use" of a vehicle apply the "predominating cause/substantial factor test." Under this test, a mere "but for" connection between the use of the vehicle and the alleged injury is insufficient to bring the claim within the scope of coverage. The Court stated this helps distinguish auto liability policies from general liability policies.
The Court said M & M's shuttle was merely used to transport the victim to the locale of the rape. Her injury resulted from Downer's conduct and his intent to rape her in his apartment, and not from the "use" of the shuttle. In other words, the use of the shuttle merely to drive the victim to Downer's apartment did not establish a "sufficient causal connection" between its use and the rape.
Stuchbery argued that with a common carrier, the use of the vehicle is always a substantial factor where a driver physically assaults the passenger. This, according to Stuchberry, is because the relationship between a common carrier driver and passenger is defined by the common carrier's vehicle.
The Court rejected this argument, stating that even if the fact the vehicle belongs to a common carrier is pertinent to determining coverage, the connection here between the use of the shuttle and rape was still too attenuated. Distinguishing case law cited by Stuchberry, the Court emphasized that the victim was not injured while a passenger inside the shuttle. In fact, she exited the shuttle on her own and, without being subject to either physical or verbal coercion from Downer, went into his apartment. Accordingly, the Court held the rape did not result from the shuttle's "use" and Redland owed no duty to defend or indemnify M & M.
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This opinion is not final. A rehearing may be granted or other petition filed. Should either of these events take place, the opinion would be unavailable for use as authority in other cases.
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