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Automobile Insurance Coverage For Drive-By Shootings
By: Charles W. Benton, Esq.

Unfortunately, in today's society drive-by shootings are no longer extraordinarily uncommon occurrences. Victims of these assaults are often seriously wounded, and are increasingly seeking compensation for their injuries from automobile liability or uninsured motorist insurance carriers.

Analyzing applicable insurance policy and statutory provisions, some courts have found coverage for drive-by shooting incidents, especially when a vehicle was essential in allowing the assault to take place. Most courts, however, have denied coverage, finding that a automobile's operation and the shooting were essentially separate incidents.

The Supreme Court of New Jersey has aligned itself with the minority position. In Lindstrom v. Hanover Ins. Co., 138 N.J. 242, 649 A.2d 1272 (1994), someone in a passing car fired a shot into a group of people attending an outdoor party. A partygoer was struck in the head by the bullet and was rendered a quadriplegic. The victim sought payment of Personal Injury Protection (PIP) benefits under his father's automobile insurance policy. The Supreme Court found that a substantial nexus between the accident and the use of the automobile must exist before PIP coverage can be invoked. The Court's inquiry focused on whether the act which caused the injuries was a reasonable consequence of the use of a vehicle and one against which the parties would expect protection. The Court found that the shooting was an accident since, from the victim's perspective, it was an unintentional act. With respect to the assailant's use of a car, in the Court's mind the automobile did more than provide an enhanced opportunity for the assault; it also gave the shooter anonymity and a means of escape. From the Court's perspective, the assailant may not have committed what was apparently a random act of violence without the use of a car.

In contrast, the Supreme Court of Arizona in Ruiz v. Farmers Ins. Co. Of Arizona, 177 Ariz. 101, 865 P.2d 762 (1993) found that the victim of a shooting which occurred between two cars in pursuit of one another on the highway was not entitled to an uninsured motorist insurance award. The policy in question provided coverage for bodily injury caused by an accident and arising out of the ownership, maintenance or use of an uninsured motor vehicle. The Court established that there must be a causal relationship between an injury and the ownership, maintenance or use of the vehicle. In the Court's view, the fact that the victim was injured while using a vehicle by someone else using another vehicle was not relevant; the victim needed to show that the uninsured vehicle caused and produced the injuries, and did not merely facilitate them. The Court determined that the passenger's injuries did not arise out of the use of the uninsured vehicle, but were caused by the independent, voluntary and deliberate acts of a criminal using the uninsured vehicle not as a car but as a moving platform from which to discharge a firearm. To hold otherwise, the Court felt, would vastly expand uninsured motorist insurance coverage beyond what the Arizona legislature intended.

An analysis of the decisions pro and con on the issue of insurance coverage for drive-by shootings reveals discussions concerning causation and insurance policy and statutory construction. All of these decisions, however, are ultimately grounded in public policy considerations, express or implied. Surely, more and more state courts will soon be forced to treat this emotionally charged issue head-on. The ultimate outcome of this judicial debate in any one state is virtually impossible to predict.

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