     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                  July 2, 2020

                               2020COA102

No. 19CA0660, Boyle v. Bristol West Insurance — Insurance —
Automobile Insurance Policies — Uninsured/Underinsured

     A division of the court of appeals concludes for the first time

that a passenger in a motor vehicle involved in a road rage incident

is not “using” that vehicle for purposes of underinsured motorist

coverage when he gets out of the vehicle to confront the driver of the

other vehicle.
COLORADO COURT OF APPEALS                                       2020COA102


Court of Appeals No. 19CA0660
Mesa County District Court No. 18CV30170
Honorable Brian J. Flynn, Judge


Robert Boyle,

Plaintiff-Appellant,

v.

Bristol West Insurance Company,

Defendant-Appellee.


                           JUDGMENT AFFIRMED

                                Division II
                          Opinion by JUDGE TOW
                        Román and Pawar, JJ., concur

                           Announced July 2, 2020


Killian Davis Richter & Mayle, P.C., Nicholas W. Mayle, Benjamin P. Meade,
Joseph H. Azbell, Grand Junction, Colorado, for Plaintiff-Appellant

White and Steele, P.C., Joel N. Varnell, E. Catlynne Shadakofsky, Denver,
Colorado, for Defendant-Appellee
¶1    Plaintiff, Robert Boyle, appeals the district court’s summary

 judgment in favor of defendant, Bristol West Insurance Company

 (Bristol West). This appeal requires us to decide, apparently for the

 first time, whether a passenger in a motor vehicle involved in a road

 rage incident is “using” that vehicle for purposes of underinsured

 motorist coverage if he is injured after getting out of the vehicle to

 confront the driver of the other vehicle. Because we conclude that

 Boyle was not using the vehicle when he was struck by the other

 vehicle, we affirm.

                            I.   Background

¶2    This case comes to us after the district court resolved

 competing motions for summary judgment. As a result, we glean

 the following facts from the undisputed facts set forth in the parties’

 motions.

¶3    Boyle was a passenger in a Toyota insured by Bristol West.

 The Toyota and another vehicle, a Jeep, were involved in an

 incident of road rage, during which both vehicles were driven

 aggressively, cutting each other off and suddenly braking in front of

 each other. When the Toyota came to a red light, the Jeep stopped

 behind the Toyota. Boyle got out of the Toyota and approached the


                                    1
 Jeep. As the driver of the Jeep made a U-turn, the Jeep struck

 Boyle and dragged him for some distance, causing Boyle severe

 injuries.

¶4    The Toyota owner’s insurance policy included uninsured

 motorist coverage, and it insured any “person while occupying,

 maintaining or using [the owner’s] covered auto . . . .” After settling

 for the respective policy limits with both his own insurer and with

 the insurer of the Jeep, Boyle sought underinsured motorist

 benefits from Bristol West.1 Bristol West denied his claim.

¶5    Boyle filed a complaint for declaratory judgment in district

 court. The parties filed cross-motions for summary judgment. The

 district court granted Bristol West’s motion, ruling that, because

 Boyle was not “using” the Toyota when he was injured, he was not

 entitled to benefits from Bristol West.2 The district court denied

 Boyle’s motion.




 1 Uninsured motorist coverage includes underinsured motorist
 coverage. § 10-4-609(4), C.R.S. 2019.
 2 Boyle has never contended that he was either “occupying” or

 “maintaining” the Toyota at the time of the incident.


                                    2
     II.     The District Court Did Not Err by Granting Bristol West’s
                          Motion for Summary Judgment

¶6         Boyle contends that the district court erred by granting Bristol

 West’s motion for summary judgment because Boyle “used” the

 Toyota when he was injured.3 We disagree.

                            A.        Standard of Review

¶7         We review de novo an order granting a motion for summary

 judgment. Salas v. Grancare, Inc., 22 P.3d 568, 571 (Colo. App.

 2001). Summary judgment is appropriate only when the pleadings

 and supporting documents fail to establish a genuine issue of

 material fact and there is a clear showing that the moving party is

 entitled to summary judgment as a matter of law. Id.

                                 B.    Applicable Law

¶8         In Colorado, automobile insurers must include coverage for

 injuries “arising out of the ownership, maintenance, or use of a

 motor vehicle” caused by uninsured motorists, unless such

 coverage is rejected in writing by the named insured.

 § 10-4-609(1)(a), C.R.S. 2019. As noted, the Bristol West policy on



 3 Boyle raises three overlapping issues on appeal pertaining to the
 motion for summary judgment. Accordingly, we address them
 together.

                                            3
 the Toyota included such coverage. Our supreme court has

 articulated a two-prong test for determining when injuries arise out

 of the use of a motor vehicle. State Farm Mut. Auto. Ins. Co. v.

 Kastner, 77 P.3d 1256, 1261-65 (Colo. 2003).

¶9    The first prong focuses on the “use” of a motor vehicle. Id. at

 1261-63. The vehicle’s use at the time the injuries were suffered

 must have been conceivable to the parties at the time of contracting

 and not foreign to the vehicle’s inherent purpose. Id. at 1262.

 Some motor vehicles may have conceivable uses beyond mere

 transportation. Id. at 1262-63; see also Aetna Cas. & Sur. Co. v.

 McMichael, 906 P.2d 92, 94-103 (Colo. 1995) (determining that a

 road construction worker who was using his truck as a barricade

 while he sawed concrete barriers in the median of a highway some

 distance in front of his truck was “using” his vehicle as

 contemplated by the uninsured motorist policy where the vehicle

 had a factory-equipped overhead beacon and emergency flashers);

 Trinity Universal Ins. Co. v. Hall, 690 P.2d 227, 231 n.4 (Colo. 1984)

 (using a vehicle to sell food and drink was a conceivable use where

 the vehicle had been factory-modified for use as a catering truck

 and mobile refreshment stand); Titan Constr. Co. v. Nolf, 183 Colo.


                                   4
  188, 193-94, 515 P.2d 1123, 1125-26 (1973) (unloading and

  loading cement from a ready-mix cement truck constituted a use

  within the meaning of a liability-to-third-persons policy provision

  because such use was inherent in the nature of the vehicle).

  However, with respect to noncommercial passenger vehicles, the

  only conceivable use that is not foreign to their inherent purpose is

  use as a means of transportation, unless an insurance policy

  provides otherwise. Kastner, 77 P.3d at 1262.

¶ 10   The second prong, which has two parts, concerns the “arising

  out of” component — i.e., the causal connection between the motor

  vehicle’s use and the injuries suffered. Id. at 1263-65. First, the

  claimant must show that but for the use of the motor vehicle, the

  injuries would not have occurred. Id. at 1264. Second, the

  claimant must show that there was an unbroken causal chain

  between the use of the vehicle and the claimed injuries. Id. Thus,

  the use of the vehicle and the injuries must be directly related or

  inextricably linked such that no independent significant act or non-

  use of the vehicle interrupted the “but for” causal chain between the

  vehicle’s use and the injuries suffered. Id.




                                    5
       C.     Boyle’s Injuries Did Not Arise Out of the Use of the Toyota

  1.        Boyle’s Association With the Vehicle Does Not Establish Use of
                                      the Vehicle

¶ 11        Relying on Cung La v. State Farm Automobile Insurance Co.,

  830 P.2d 1007 (Colo. 1992), Boyle first contends that he was using

  the Toyota because he was targeted for the assault as a result of his

  connection with the vehicle. But Boyle misreads Cung La.

¶ 12        In Cung La, the victim was driving the insured vehicle when he

  was shot by a passenger in another car. Id. at 1008.4 The victim

  had been identified by his assailants because his vehicle, a white

  Mustang, had driven away from a recent altercation. Id. But our

  supreme court did not determine that the victim in Cung La was

  using his car because of his association with it. Rather, the court

  held that the victim was using the car because “the [victim] was

  driving and operating the vehicle in a manner not foreign to its

  inherent purpose.”5 Id. at 1012. Our supreme court has since



  4 The assailants’ vehicle was considered an uninsured vehicle under
  the applicable policy because the owner or driver of that vehicle was
  unknown. Cung La v. State Farm Auto. Ins. Co., 830 P.2d 1007,
  1008 n.3 (Colo. 1992).
  5 Although the court held that the victim was using his car, the case

  was ultimately remanded for a jury to determine “whether the


                                        6
  stated that the Cung La court “assumed that the assailants and the

  insured were ‘using’ their cars as contemplated by the insured’s

  policy since the cars were moving at the time of the shooting.”

  Kastner, 77 P.3d at 1265. Here, in contrast, the Toyota was not

  moving, nor was Boyle in the Toyota when he was injured.

  Therefore, Boyle’s position was not analogous to that of the victim

  in Cung La.

¶ 13   Nor, as Boyle argues, was his situation similar situation to

  that of the assailants in Cung La. The assailants in Cung La used

  three vehicles to block the victim’s car from driving away, thus

  facilitating the assault. Cung La, 830 P.2d at 1008. But here, there

  is no evidence to suggest that the Toyota was intentionally blocking

  the other vehicle from leaving the scene. Rather, the Toyota was

  stopped at a stop light. The fact that the other vehicle executed a

  U-turn to leave the area, injuring Boyle in the process, suggests

  that Boyle, not the Toyota, was blocking the other vehicle from

  leaving.




  [victim’s] use of or presence in the vehicle was causally related to
  his injuries.” Cung La, 830 P.2d at 1012.

                                     7
¶ 14    In any event, the fact that Cung La discussed whether the

  victim’s shooting involved the use of the assailants’ uninsured

  vehicle is inapposite to this case. There, the policy covered any

  injury “arising out of the operation, maintenance or use of an

  uninsured motor vehicle.” Id. (emphasis added). In contrast, under

  the terms of the Bristol West policy, Boyle (who did not own the

  vehicle) was only insured for injuries he suffered arising out of the

  use of “the covered auto.” Thus, even if Boyle could be said to have

  been “using” the Jeep, he could not recover from Bristol West.

   2.   Boyle’s Proximity to the Toyota Does Not Establish Use of the
                                   Vehicle

¶ 15    Boyle also argues that because he only stepped out of the

  Toyota briefly and remained within a few feet of it, he was still using

  the vehicle. But the key inquiry is not how long he was outside of

  the car or how far he strayed from it. Rather, the question is

  whether the activity he was engaged in was a cognizable use of the

  vehicle.

¶ 16    Boyle relies on cases that involve commercial vehicles to

  support his argument. See Mays v. Travelers Prop. Cas. Co. of Am.,

  No. Civ. A 04-D-486 CBS, 2005 WL 2406108 (D. Colo. Sept. 28,



                                     8
  2005); McMichael, 906 P.2d 92. But as previously stated,

  cognizable commercial vehicle “uses” are more expansive than those

  for noncommercial vehicles. Kastner, 77 P.3d at 1262-63.

  Nevertheless, even in determining whether a commercial vehicle

  was in “use” by the victim, “[t]hese cases did not turn on the

  proximity of the claimant to the vehicle at the time of the accident

  but, rather, the particular activity in which the claimant was

  engaged.” McMichael, 906 P.2d at 102.

¶ 17   Nor do the cases cited by Boyle that involve noncommercial

  vehicles turn on proximity to the vehicle. In Government Employees

  Insurance Co. v. MFA Mutual Insurance Co., 802 P.2d 1122 (Colo.

  App. 1990), the victim was injured after stepping out of the car to

  change a flat tire. Id. at 1124. A division of this court held that

  “the storage of a spare tire is a use within the inherent purpose of

  an automobile.” Id. at 1125. And in Progressive Casualty Insurance

  Co. v. Farm Bureau Mutual Insurance Co., 53 P.3d 740 (Colo. App.

  2002), the victim stepped out of the vehicle to render aid to those in

  a car accident. Id. at 742. A division of this court also held that

  the need for a motorist to leave his or her vehicle to assist other

  motorists in need of assistance after an injury-causing accident was


                                     9
  a “foreseeable event arising out of the use of the vehicle.” Id.

  (quoting Metro. Prop. & Cas. Ins. Co. v. Neubert, 969 P.2d 733, 735

  (Colo. App. 1998)).

¶ 18   Here, in contrast, Boyle did not leave the Toyota to render

  assistance to another injured party. Rather, he stepped out of the

  Toyota to approach the occupant of the other vehicle involved in a

  road rage incident. His use of the Toyota was therefore not one that

  was “contemplated by the policy in question.” Mason v. Celina Mut.

  Ins. Co., 161 Colo. 442, 444, 423 P.2d 24, 25 (1967); see also Roque

  v. Allstate Ins. Co., 2012 COA 10, ¶ 15 (holding that a driver’s act of

  parking his car behind plaintiff’s vehicle during a road rage incident

  to block plaintiff’s vehicle from driving away was “not using the car

  for transportation and not another use contemplated by the policy”).

¶ 19   Unlike a flat tire or a car accident victim in need of assistance,

  a passenger getting out of a vehicle to approach another driver

  involved in a road rage incident is not inherent to using a vehicle for

  transportation or a use contemplated by the insurer when issuing

  the policy.




                                    10
   3.    Boyle’s Leaving the Toyota to Approach the Jeep Interrupted
                              the Causal Chain

¶ 20    Finally, Boyle’s actions fail to satisfy the second prong of the

  Kastner test as well. By leaving the vehicle to confront the driver of

  the Jeep, Boyle engaged in an independent significant act or non-

  use of the vehicle. In doing so, he interrupted the “but for” causal

  chain between the covered use of the vehicle for transportation and

  his injury. See Roque, ¶ 16.

¶ 21    Boyle argues that he would have been injured by staying in

  the Toyota, and thus it would be absurd to deny him coverage

  merely because he exited the car to avoid the injury. But the case

  Boyle relies on, Frain v. Keystone Insurance Co., 640 A.2d 1352 (Pa.

  Super. Ct. 1994), is inapposite. In Frain, the plaintiff was injured

  as she fell while running from her parked vehicle to avoid being

  struck by an oncoming tractor trailer. Id. at 1353. The appellate

  court noted that though the plaintiff was not in the vehicle when

  she was injured, she had been entering the vehicle at the time she

  noticed the imminent collision. Id. at 1356. The court noted that a

  requirement that she enter the vehicle, rather than attempt to




                                     11
  remove herself from the imminent danger, would encourage

  irresponsible behavior. Id.

¶ 22   In contrast, Boyle did not get out of the Toyota to avoid an

  imminent collision. Indeed, there was no evidence that his or his

  driver’s safety was contingent on his getting out and approaching

  the Jeep on foot.6 By doing so, he engaged in an independent non-

  use of the vehicle that interrupted the causal chain.

¶ 23   In sum, based on the undisputed facts, Boyle was not using

  the Toyota in a manner contemplated by the insurance policy when

  he was injured. Further, because he had voluntarily left the vehicle

  for a purpose that was not inherent to transportation and was not

  avoiding imminent injury, his injuries did not arise out of the use of

  the vehicle. Because there was no genuine issue of material fact as

  to whether the injuries arose out of the use of the Toyota, the



  6 Boyle asserts that there is a factual dispute as to whether he
  approached the Jeep in a threatening manner. But Boyle also
  admits in his opening brief that this factual dispute is not material.
  We agree. Whatever his motive or demeanor while approaching the
  Jeep, Boyle’s decision to leave the vehicle for a purpose other than
  transportation was not “use” of the Toyota. Thus, even if this fact is
  in dispute, it is not a material dispute sufficient to defeat summary
  judgment. See Salas v. Grancare, Inc., 22 P.3d 568, 571 (Colo. App.
  2001).

                                    12
  district court properly granted Bristol West’s motion for summary

  judgment.

                           III.    Conclusion

¶ 24   The judgment is affirmed.

       JUDGE ROMÁN and JUDGE PAWAR concur.




                                    13
