Many have pondered the question, "If a tree falls in the forest and there's no one around to hear it, does it make a sound?" But few have pondered the equally stupid question: "If a car causes an injury but the driver was dead at the time, is that covered by an uninsured-motorist policy?" This might explain why.
The Kansas City Jury Verdict Service reported on December 26 that a jury had found for the plaintiff in Dottrey v. American Family Ins. Co. (No. 0916CV34424). This case arose from a carjacking in 2006, in which a man at a car wash demanded another man's pickup truck at gunpoint. He got it, but unfortunately for him, his victim also had a gun, and he shot the thief with it several times as he was driving away. The truck crashed through one of the bays and hit Dottrey's car. A local news report stated that the thief was "pronounced dead at the scene," although it wasn't clear as to exactly when that took place.
The report also says "no other injuries were reported," but Dottrey later claimed that although she had not been hit by either car, she did fall down, and more importantly that she had developed post-traumatic stress disorder. (According to the verdict report, she did offer evidence of $6,000 in medical expenses due to PTSD.) It appears that - in what was probably a sensible move - she blamed this entirely on the thief. Whether the truck owner was technically justified in using deadly force on somebody driving away with his property might be a valid question, but I couldn't find any evidence she made this argument, and after all he was a victim too. Given that decision, and with the thief dead (and either uninsured or not covered because of the crime), the only other source of money was Dottrey's own auto-insurance policy, which covered her for injuries caused by uninsured motorists.
According to the verdict report, the insurer "denied coverage, maintaining that [the thief] was dead and disputing whether he was the motor vehicle 'operator' at the time of the incident."
Not sure exactly what the relevant policy said, but it was probably something like this, taken from a recent Missouri opinion in a case involving the same insurer:
We will pay compensatory damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle. The bodily injury must be sustained by an insured person and must be caused by accident and arise out of the use of an uninsured motor vehicle.
Whether Dottrey really suffered "bodily injury" doesn't seem to have been disputed, nor does the question whether the vehicle (as opposed to the driver) was uninsured, and Dottrey was not arguing she could recover from the owner. The only other possibility I can think of is that "operator" might be meant only to cover someone who is leasing or otherwise legally entitled to use the vehicle. But if that had been at issue, it wouldn't have mattered whether the thief was dead or not. So based on the (very limited) evidence, it appears that the insurer argued it didn't have to pay because the thief, who was clearly not the "owner," also was not the "operator" of a vehicle at the time Dottrey was injured, because he was dead. Dead bodies can't operate motor vehicles, end of argument, we win, thanks, buh-bye.
Well, no.
Obviously, the guy "operated" the vehicle at least briefly in order to get it to move, unless you think it was propelled along by the bullets. Even if you did want to blame the shooter to some extent, Dottrey would have been "legally entitled to recover" some amount from the "operator," and the policy should have covered that. The insurer may have just thought the PTSD claim was bogus, but for whatever reason it refused to offer more than $3,500, and the case went to trial.
The fact that the jury came back with a verdict of $450,000 probably tells us something about what it thought of the insurer's position.
If anyone has any more information about this case, whether it confirms or rejects anything above, please let me know. Also, trying to steal a pickup in the Midwest is dangerous. Just FYI.
