                    NOTICE: NOT FOR OFFICIAL PUBLICATION.
       UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
          PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
            ARIZONA COURT OF APPEALS
                                DIVISION ONE


  UNITED FINANCIAL CASUALTY COMPANY, Intervenor/Appellant,

                                       v.

    ASSOCIATED INDEMNITY CORPORATION, Intervenor/Appellee.

                            No. 1 CA-CV 15-0564
                              FILED 11-3-2016


           Appeal from the Superior Court in Yavapai County
       No. P1300CV201300369, P1300CV201300989 (Consolidated)
                The Honorable David L. Mackey, Judge

                      VACATED AND REMANDED


                                  COUNSEL

Richards Law Office PC, Phoenix
By Charles F. Richards, Jr.
Counsel for Intervenor/Appellant

Sanders & Parks PC, Phoenix
By Mark G. Worischeck, Shanks Leonhardt
Counsel for Intervenor/Appellee



                      MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Patricia A. Orozco joined.
                          UNITED v. ASSOCIATED
                           Decision of the Court

G O U L D, Judge:

¶1           Intervenor/appellant United Financial Casualty Company
(“United”) appeals the superior court’s declaratory judgment that United,
and not intervenor/appellee Associated Indemnity Corporation
(“Associated”), had a duty to defend and indemnify the insured in the
underlying tort action. For the following reasons, we vacate the judgment
and remand for entry of judgment for United.

                  FACTS AND PROCEDURAL HISTORY

¶2            Dorothy Ahlen lived at the Prescott Lakes Senior Apartments
(“Prescott Lakes”), an independent living facility owned and operated by
Mills Prescott, L.L.C. On March 20, 2012, Mills Prescott employee Ed
Parsons drove Ahlen to a medical appointment in a shuttle van Mills
Prescott offered as a service to Prescott Lakes residents. Shortly after Ahlen
exited the van, she fell in a snow bank and injured herself. Ahlen had no
memory of the fall, but a witness reported that she saw Ahlen exit the van,
walk across a clear sidewalk onto the snow bank, and fall forward.1

¶3           Ahlen filed this lawsuit against, as relevant, Parsons and Mills
Prescott, and the companies that managed Prescott Lakes (collectively,
“Mills Prescott”). Mills Prescott‘s commercial general liability (“CGL”)
insurer, Associated, and commercial automobile insurer, United, both
intervened in the lawsuit for the purpose of participating in discovery
relevant to Ahlen’s claims and insurance coverage issues.

¶4            United’s commercial automobile insurance policy stated that
United would pay damages for “bodily injury . . . for which an insured
becomes legally responsible because of an accident arising out of the . . . use
of an insured auto.”2 Conversely, Associated’s CGL policy excluded, as
relevant here, coverage for “bodily injury . . . arising out of the . . . use . . .
of any” automobile. Both insurers filed complaints in intervention


1       The record contains conflicting evidence about whether Parsons was
still at the scene when Ahlen fell. However, this disputed fact is not
material to our analysis. See Giovanelli v. First Fed. Sav. & Loan Ass’n of
Phoenix, 120 Ariz. 577, 582 (App. 1978) (stating that a disputed fact does not
preclude summary judgment if that fact does not affect one party’s right to
judgment as a matter of law).

2      There is no dispute that the shuttle van was an “insured auto” under
the automobile policy.


                                        2
                        UNITED v. ASSOCIATED
                         Decision of the Court

requesting that the court determine whether the policies they issued to
Mills Prescott required them to defend and indemnify Mills Prescott in the
underlying litigation.

¶5             United moved for summary judgment on the coverage issue,
arguing that the undisputed evidence showed that Ahlen exited the vehicle
in a safe place and manner and, therefore, her injuries did not arise out of
the use of the vehicle, a necessary predicate for coverage under the
automobile policy. Associated opposed the motion and cross-moved for
summary judgment on the grounds that there was no material dispute of
fact that Parsons negligently operated the vehicle by allowing Ahlen to exit
in a dangerous place and manner. It asserted that because Ahlen’s injury
arose out of the use of the shuttle van, the CGL policy excluded coverage.

¶6            While the motions were pending, Ahlen settled her lawsuit
against Mills Prescott. United and Associated agreed to jointly fund the
settlement pending the court’s coverage determination.

¶7           The superior court granted summary judgment for
Associated, ruling that the only basis for liability was Parsons’ decision to
allow Ahlen to exit the shuttle van in an unsafe location and because that
was a decision concerning the use of the vehicle, United’s automobile policy
provided coverage.

¶8            United opposed Associated’s proposed form of judgment on
the grounds that it should not include a determination of the insurers’
respective duties to defend Mills Prescott in Ahlen’s underlying action
because United and Associated had not litigated that issue and, in any
event, the settlement extinguished any duty to defend. The court found
United’s objection was without merit and entered a judgment stating that
United had a duty to defend Mills Prescott against Ahlen’s claims and to
indemnify it for the settlement of the underlying action, and that Associated
had no corresponding duty to defend or indemnify.

¶9           United timely appealed.

                                  ISSUES

¶10           United argues the superior court erred by denying its motion
for summary judgment and granting judgment for Associated, ruling that
United had a duty to defend Mills Prescott in the underlying action and
indemnify it for the underlying settlement.




                                     3
                         UNITED v. ASSOCIATED
                          Decision of the Court

                               DISCUSSION

¶11            The superior court must grant summary judgment when the
moving party shows that no material facts are in dispute and the party is
entitled to judgment as a matter of law. Ariz. R. Civ. P. 56(a). This court
reviews a trial court's ruling on cross-motions for summary judgment de
novo. In re Estate of Gardner, 230 Ariz. 329, 331, ¶ 7 (App. 2012). We view
the facts in the light most favorable to the party against whom summary
judgment was granted, id., but review de novo whether a genuine issue of
material fact exists and whether the superior court erred in its application
of the law. Tobel v. Travelers Ins. Co., 195 Ariz. 363, 366, ¶ 13 (App. 1999).
“When cross-motions for summary judgment have been filed, this court
may evaluate the cross-motions and, if appropriate, remand with
instructions that judgment be entered in favor of the appellant[].” Bentley
v. Bldg. Our Future, 217 Ariz. 265, 270, ¶ 11 (App. 2007) (citation omitted).

¶12         United argues the superior court erred by granting summary
judgment for Associated because the undisputed evidence showed that
Ahlen had exited and walked away from the shuttle van before she fell in
the snow bank and, therefore, her injury was not causally related to her use
of the van.

¶13           “Arizona courts have broadly construed the concept of
‘using’ an insured vehicle,” and include within the meaning of that term
“’any activity involved in the utilization of the covered vehicle in the
manner intended or contemplated by the insured.’” Westfield Ins. Co. v.
Aetna Life & Cas. Co., 153 Ariz. 564, 568 (App. 1987) (citing with approval 12
Couch, Cyclopedia of Insurance Law § 45:325, at 668 (2d Ed. 1981)). Thus, for
example, Arizona courts have held that an injury arose out of the “use” of
an insured vehicle when:

       (1) another motorist was injured by a driver towing the
       insured vehicle, Westfield, 153 Ariz. at 568;

       (2) a passenger was injured when the driver of the vehicle
       swerved after a passenger in the insured vehicle made a
       gesture that suggested he had a gun, Allstate Ins. Co. v.
       Johnston, 194 Ariz. 402, 403, ¶ 8 (1999); and




                                      4
                         UNITED v. ASSOCIATED
                          Decision of the Court

       (3) a passenger was injured by a dog that was not properly
       secured in the insured vehicle’s cargo area, Farmers Ins. Co. of
       Ariz. v. Till, 170 Ariz. 429, 431-32 (App. 1991).3

¶14            However, not all injuries that incidentally involve an insured
vehicle arise out of its “use”; the injury must be causally connected to the
vehicle. Allstate, 194 Ariz. at 403, ¶ 8. For example, this court held in State
Farm Mut. Automobile Ins. Co. v. Loesl, 194 Ariz. 40, 43, ¶ 16 (App. 1999), that
an insured’s “mere transportation of a tortfeasor to a site where he commits
a tort does not establish the requisite causal relationship” necessary to
invoke liability coverage for the “use” of the insured’s vehicle. The court
reasoned that the purpose of the insurance agreement was to “pay for the
negligent acts of the insured committed during the operation or use of the
motor vehicle,” and, therefore, the injury must be caused by a negligent act
in the use of the insured vehicle, even though the use of the vehicle need
not be the proximate cause of the injury. Id. at 42, ¶ 13. See also Brenner v.
Aetna Ins. Co., 8 Ariz. App. 272, 276 (1968) (holding passenger’s injury from
a pistol that accidentally discharged while another passenger was “toying”
with it did not arise out of the use of the vehicle; “From the standpoint of
causation, this injury could have occurred in the woods, in a hunting lodge,
or in a house.”); Love v. Farmers Ins. Grp., 121 Ariz. 71, 74 (App. 1978)
(holding vehicle owner’s assault by criminals who abducted him in the
insured vehicle and beat him to death with candelabrum found in the
vehicle did not arise out of the use of the vehicle; “For purposes of this
essential causal relationship . . . . The attack could have occurred outside
the car as easily as inside the car.”).4



3      See also Morari v. Atlantic Mut. Fire Ins. Co., 105 Ariz. 537, 538-39
(1970) (relying in part on insurance policy’s “loading and unloading
clause,” the court held an injury arose out of the use of a vehicle where the
injury was caused by a hunting rifle discharging while the driver was
unloading it from an insured vehicle that was specifically used to transport
hunters and their rifles).

4      Arizona courts have reached similar results when considering the
applicability of uninsured and underinsured motorist coverage. See e.g.,
Mazon v. Farmers Ins. Exch., 107 Ariz. 601, 603 (1971) (ruling injury to driver
who was struck by a rock thrown from another vehicle did not arise out of
the use of that vehicle); Ruiz v. Farmers Ins. Co., 177 Ariz. 101, 103 (1993)
(holding gunshot injury sustained in a car-to-car shooting did not arise out



                                       5
                          UNITED v. ASSOCIATED
                           Decision of the Court

¶15            The parties have not cited, and we have not found, any
Arizona cases addressing whether an injury sustained shortly after a person
exits an insured vehicle arose out of the use of the vehicle.5 However, cases
from other jurisdictions that have considered the issue offer some guidance
in this matter. See Westfield, 153 Ariz. at 568 (noting Arizona follows the
majority view that the concept of “using” an insured vehicle should be
broadly construed). Generally, an injury involving a pedestrian is not a risk
that falls under the definition of “use” of the pedestrian’s automobile, even
if it occurs in close proximity to the vehicle. See e.g., Carta v. Providence
Washington Indem. Co., 122 A.2d 734, 737 (Conn. 1956) (denying coverage to
pedestrian injured by the insured vehicle rolling toward her after she
exited; “A person is not in the process of alighting if, at the time, he has
completed all acts normally performed by the average person in getting out
of an automobile under similar conditions and if he has embarked upon a
course of conduct entirely distinct from acts reasonably necessary to make
an exit from the car.”); Rosebrooks v. Nat'l Gen. Ins. Co., 434 N.E.2d 675, 676
(Mass. App. 1982) (determining a pedestrian who slipped on ice while


of the use of a vehicle because the plaintiff did not show that the other
vehicle caused her injury).

5      Arizona courts have recognized that an injury to a person outside of
a vehicle who is utilizing specialized vehicle equipment might arise out of
the “use” of the vehicle for purposes of uninsured and underinsured
motorist coverage. See Tobel, 195 Ariz. at 370, ¶ 36 (holding employee was
entitled to underinsured motorist benefits after he was struck by another
vehicle while removing roadway barriers; the court determined the
employee’s use of the truck was causally related to his injuries because the
truck was used to load and unload barriers in the roadway, and the
employee was “using” the truck’s safety equipment that was designed to
protect him during the barrier loading/unloading process at the time of the
accident); see also Chavez v. Ariz. Sch. Risk Retention Trust, Inc., 227 Ariz. 327,
329, ¶ 8 (App. 2011) (ruling that for purposes of underinsured motorist
coverage, school bus passengers were using the vehicle when struck by a
passing automobile while waiting in line to board; the bus driver had
deployed the bus’s flashing safety lights, which were designed to allow
students to safely navigate streets to board and disembark from the bus.)
These rulings are inapposite, however, as there is no evidence in this case
that Ahlen utilized any specialized features when exiting the shuttle van,
or that she was exiting the vehicle at the time of her fall.




                                        6
                         UNITED v. ASSOCIATED
                          Decision of the Court

holding onto and preparing to enter insured vehicle was not using the
vehicle for purposes of insurance coverage); Cleaver v. Big Arm Bar & Grill,
Inc., 502 S.E.2d 438, 442 (W. Va. 1998) (stating an injury to passenger riding
in a vehicle that struck a pedestrian who was running from his car did not
arise out of the use of the pedestrian’s car). While courts have recognized
an exception when the insured allows a child to exit the vehicle in a
dangerous manner, see e.g., Nat’l Indem. Co. v. Farmers Home Mut. Ins. Co.,
157 Cal. Rptr. 98 (Cal. App. 2 Dist. 1979) (holding injury to child passenger
who exited vehicle and ran into the street arose out of the use of the vehicle);
Nationwide Mut. Ins. Co. v. Davis, 455 S.E.2d 892, 894-95 (N.C. App. 1995)
(ruling insured was “using” vehicle when child in her care exited vehicle
and was struck by an oncoming truck while crossing the adjacent road), the
injury must occur as part of exiting the vehicle.

¶16            In this case, the evidence showed that Ahlen was an adult
who had no difficulty walking independently or negotiating the steps off
the shuttle van. Her injury occurred roughly one minute after she exited
the van when she was approximately 10 to 12 feet away from the vehicle
and walking toward her destination. Under these circumstances, we
conclude as a matter of law that (1) Ahlen’s injury did not arise out of the
“use” of the van as necessary to invoke coverage under United’s automobile
policy, and (2) was not subject to the automobile “use” exclusion in
Associated’s CGL policy.6 See Johnston, 194 Ariz. at 403, ¶ 8; Loesl, 194 Ariz.
at 42, ¶ 13; Brenner, 8 Ariz. App. at 276; Love, 121 Ariz. at 74.

¶17           Accordingly, the superior court erred by denying United’s
motion for summary judgment and granting judgment for Associated.
Bentley, 217 Ariz. at 270, ¶ 11.7 Further, in our discretion we deny both
parties’ requests for attorneys’ fees pursuant to A.R.S. § 12-341.01.




6     Based on the parties’ joint settlement agreement, we do not reach the
issue of whether Ahlen’s injuries may otherwise be covered under
Associated’s CGL policy.

7     Because we vacate the superior court’s judgment, we do not consider
United’s argument that the judgment improperly included a determination
that United had a duty to defend Mills Prescott in the underlying action.




                                       7
                       UNITED v. ASSOCIATED
                        Decision of the Court

                             CONCLUSION

¶18           For the foregoing reasons, we vacate the judgment and direct
the superior court on remand to enter judgment for United. We will award
costs to United upon compliance with Arizona Rule of Civil Appellate
Procedure 21.




                        AMY M. WOOD • Clerk of the Court
                        FILED: AA




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