MAINE SUPREME JUDICIAL COURT                                      Reporter of Decisions
Decision: 2020 ME
Docket:   Wal-19-401
Argued:   May 11, 2020
Decided:  June 11, 2020

Panel:      MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.



                             DAWN H. HASKELL et al.

                                         v.

                 STATE FARM FIRE AND CASUALTY COMPANY


MEAD, J.

         [¶1] Dawn H. Haskell and Martin W. Witham appeal from a summary

judgment entered by the Superior Court (Waldo County, R. Murray, J.) in favor

of State Farm Fire and Casualty Company on Haskell and Witham’s complaint

to reach and apply the State Farm vehicle insurance coverage of a man found

jointly and severally liable to Haskell and Witham for damages. Haskell and

Witham argue that they were entitled to a summary judgment because the

underlying tort judgment established that State Farm’s insured had caused

their injuries and that the State Farm automobile insurance policy covers the

damages awarded to them for those injuries. We affirm the court’s judgment.
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                                I. BACKGROUND

      [¶2] The material facts are drawn from the parties’ statements of

material facts, which were properly supported by citations to the record, see

M.R. Civ. P. 56(h)(4), viewed in the light most favorable to Haskell and Witham.

See InfoBridge, LLC v. Chimani, Inc., 2020 ME 41, ¶ 12, --- A.3d ---.        On

March 27, 2013, Grover Bragg owned a truck insured by State Farm. Bragg

used that truck in the early morning hours to transport an intoxicated and

delusional friend away from Bragg’s home. Bragg’s friend jumped out of the

truck while the truck was moving. Bragg pulled over but did not exit his truck.

Bragg’s friend then broke into Haskell and Witham’s house and thoroughly

damaged windows and other property. At one point, he got into the bed of

Bragg’s truck, but he left again and reentered Haskell and Witham’s house.

When Witham attempted to restrain him, he assaulted Witham, resulting in

injury.

      [¶3] The insurance policy on Bragg’s vehicle insured Bragg “for . . . the

ownership, maintenance, or use of” his vehicle. The policy provided as follows

regarding coverage for liability to others:

      We will pay damages an insured becomes legally liable to pay
      because of:

      a.    bodily injury to others; and
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      b.     damage to property

      caused by an accident that involves a vehicle for which that insured
      is provided Liability Coverage by this policy.

(Emphasis omitted.)

      [¶4]   In April 2014, Bragg was served with Haskell and Witham’s

complaint alleging Bragg’s negligence, among other claims that they brought

against Bragg’s friend and others. Bragg did not file a timely answer, and a

default was entered against him in June 2014. By March 2015, State Farm had

received the complaint, and in 2016, it employed counsel to represent Bragg,

admitting that it had the duty to defend. Bragg, through counsel, filed an

answer but did not move to set aside the entry of default.

      [¶5] At a hearing on damages, Bragg raised arguments and offered

evidence about the extent of damages attributable to him. The court concluded

that Bragg and his friend were jointly and severally liable to Haskell and

Witham and awarded damages in the amount of $428,071.64.                  Bragg’s

negligence was based on findings that, worried about the safety of people in his

home and possible property damage, Bragg took his intoxicated and delusional

friend for a drive, rather than calling the authorities, and followed his friend’s

directions in going down the road where Haskell and Witham live. Based on
4

the default, the court accepted as true the allegations that Bragg was aware of

and assisted his friend in becoming intoxicated before driving his friend away

from his home. We affirmed that judgment on appeal. See Haskell v. Bragg,

2017 ME 154, 167 A.3d 1246.

      [¶6] Haskell and Witham then commenced the present action seeking to

reach and apply Bragg’s vehicle insurance policy, see 24-A M.R.S. § 2904 (2020),

and to obtain a declaratory judgment that the coverage applies. State Farm

moved for summary judgment, and Haskell and Witham filed a cross-motion

for summary judgment.

      [¶7] The court entered a summary judgment in favor of State Farm and

denied Haskell and Witham’s motion for summary judgment.             The court

reasoned that, although State Farm was bound by the judgment finding Bragg

liable to Haskell and Witham, State Farm could argue that the conduct for which

Bragg was held liable was not covered by the State Farm policy. The court

concluded that the damages payable to Haskell and Witham were not damages

that Bragg became liable to pay because of “an accident that involve[d]” a

vehicle covered by the State Farm policy and that the damages did not arise out

of Bragg’s use of the vehicle.
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      [¶8] Haskell and Witham timely appealed. See 14 M.R.S. § 1851 (2020);

M.R. App. P. 2B(c)(1).

                                II. DISCUSSION

      [¶9] We review a court’s entry of summary judgment de novo as a

question of law. Kelley v. N. E. Ins. Co., 2017 ME 166, ¶ 4, 168 A.3d 779. Two

issues have been raised on appeal: (A) whether the judgment entered in the

underlying litigation determined all issues of causation pertinent to the

coverage decision, and (B) whether the incident for which Bragg was held liable

falls within the coverage of the State Farm policy.

A.    Causation

      [¶10] “Upon the entry of a default for failure to timely appear or respond

in an action, the facts alleged in the complaint are deemed to have been proved

and affirmative defenses are deemed to have been waived.”               Haskell,

2017 ME 154, ¶ 4, 167 A.3d 1246 (citing M.R. Civ. P. 8(b)-(d)). Thus, the

complaint’s allegations that Bragg’s negligent actions caused damages to

Haskell and Witham are deemed to have been proved. Id. ¶ 17.

      [¶11] We need not decide whether those allegations should be deemed

proved against the insurer in this reach-and-apply action, however, because the

parties do not dispute the material facts set forth in the summary judgment
6

record, and those facts are consistent with the complaint’s allegations. The

question for us to decide is whether the finding of negligence based on the

alleged facts requires the insurance company to apply the policy’s coverage for

bodily injury and property damages “caused by an accident that involves a

vehicle” insured by the policy. (Emphasis added.)

      [¶12] We “have repeatedly stated that an insurer’s duty to indemnify is

independent from its duty to defend and that its duty to defend is broader than

its duty to indemnify.”    Elliott v. Hanover Ins. Co., 1998 ME 138, ¶ 11,

711 A.2d 1310. State Farm did not, by conceding that the allegations of the

complaint may fall within Bragg’s policy and honoring the duty to defend, waive

its claims regarding coverage. See id. Counsel appeared under a reservation of

rights, and the coverage issue remained unresolved through the underlying

litigation.

      [¶13] Thus, whether or not Haskell and Witham proved causation for

purposes of the negligence action, the terms of the policy will determine

whether coverage is owed. Id. (holding that, even when an insurer fails to

defend its insured, the policy—not the finding of tort liability—determines

whether the insurance company must pay the insured). The court was correct

that, although Bragg’s liability for injuries may have been established in the
                                                                                7

underlying litigation, the injuries were not necessarily “caused by an accident

that involves a vehicle” insured by the policy. The question here is whether the

facts presented on summary judgment, viewed in the light most favorable to

Haskell and Witham, see InfoBridge, LLC, 2020 ME 41, ¶ 12, ---A.3d ---, bring the

damages within the coverage of Bragg’s vehicle insurance policy.

B.    Summary Judgment on Policy Coverage

      [¶14] Haskell and Witham do not contend that there are any genuine

issues of material fact. Rather, they argue that the court misinterpreted the

language of the policy in concluding that the damages awarded to Haskell and

Witham in the underlying lawsuit were not caused by an accident that involved

Bragg’s vehicle.

      [¶15] “The review of a judgment in a reach and apply action requires us

to first identify the basis of liability and damages from the underlying complaint

and judgment and then to review the . . . insurance policy to determine if any of

the damages awarded in the underlying judgment are based on claims that

would be recoverable pursuant to the . . . policy.” Kelley, 2017 ME 166, ¶ 5,

168 A.3d 779 (quotation marks omitted). “The meaning of language contained

in an insurance contract is a question of law that we review de novo.” Patrons

Oxford Ins. Co. v. Harris, 2006 ME 72, ¶ 7, 905 A.2d 819. “If the language of an
8

insurance policy is unambiguous, we interpret it in accordance with its plain

meaning, but we construe ambiguous policy language strictly against the

insurance company and liberally in favor of the policyholder.”            Kelley,

2017 ME 166, ¶ 5, 168 A.3d 779 (quotation marks omitted). We read the

policy’s language “from the perspective of an average person untrained in

either the law or the insurance field in light of what a more than casual reading

of the policy would reveal to an ordinarily intelligent insured.” Id. (quotation

marks omitted).

        [¶16] The insurance policy provided coverage to Bragg for his use of the

vehicle and covered his liability for bodily injury or property damage to others

“caused by an accident that involves a vehicle” covered by the policy. Thus, we

consider whether the causal connection between the conduct and the vehicle is

sufficient when an insured uses his vehicle to drive an intoxicated and

delusional person to a place where that person exits the vehicle and inflicts

harm.

        [¶17] As we have held in determining whether injuries resulted from the

“use” of a vehicle, “[t]he causal relationship between the proper use of the

vehicle and the subsequent injury need not be the proximate cause of the

injury; coverage will be extended if there is a reasonable causal connection
                                                                               9

between the use and the injury.” Me. Mut. Fire Ins. Co. v. Am. Int’l Underwriters

Ins. Co., 677 A.2d 1073, 1075 (Me. 1996) (quotation marks omitted). We

recently opined that a dog bite that occurred in an insured vehicle did not

constitute an “auto accident” covered by the pertinent insurance policy. Kelley,

2017 ME 166, ¶ 7, 168 A.3d 779. We reasoned that an auto accident is “an

unintended and unforeseen injurious occurrence involving an automobile,”

which may include incidents other than a collision or car crash, but which does

not include “bodily injury from a dog bite that occurred in a car that had

absolutely no causal connection to the injury and that was not even in

operation.” Id.

      [¶18] Here, the policy language is similar to the terms we employed to

construe the term “auto accident.” Id. We interpreted that term to mean “an

unintended and unforeseen injurious occurrence involving an automobile,” id.

(emphasis added), and Bragg’s State Farm policy covers damages caused by “an

accident that involves a vehicle” insured by the policy (emphasis added). Thus,

we find Kelley useful in interpreting the policy at issue here as we consider

whether the causal link between the vehicle and the injuries is sufficient for

coverage to apply.
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      [¶19] We are also guided by our interpretations of insurance policy

provisions covering damages arising from the “use” of a vehicle. We held in

Maine Mutual Fire Insurance Co., 677 A.2d at 1075, that when a person was

injured by a dog who was tethered to a truck and sitting on the flatbed, the “‘use’

of the vehicle as an object to secure [the] dog was not directly incidental to the

operation of the vehicle and, accordingly, there [wa]s an insufficient causal

connection between the injury and the use of the vehicle to fall within the terms

of the automobile policy.”

      [¶20]    In contrast, we held that there was a “reasonable causal

connection” between the “use” of the vehicle and the injury suffered when the

injury arose from the removal of a loaded hunting firearm from the insured

vehicle. Union Mut. Fire Ins. Co. v. Commercial Union Ins. Co., 521 A.2d 308, 309,

311 (Me. 1987).

      [¶21] Interpreting analogous language in homeowner policy exclusions,

we similarly held that an injury suffered when the insured and the injured

person were carrying an item away from a vehicle to the insured’s shed did not

fall within an exclusion in the homeowner’s policy for injuries “arising out of

the ownership, maintenance, use, loading or unloading of” a vehicle. Foremost

Ins. Co. v. Levesque, 2005 ME 34, ¶¶ 4, 11, 16, 868 A.2d 244 (emphasis omitted)
                                                                            11

(quotation marks omitted). We concluded that the exclusion was inapplicable

because the vehicle was not involved in the injury, which occurred because the

insured had negligently placed an object in a walkway or on the floor of the

premises. Id. ¶¶ 11, 15-16. Conversely, we held that an identically worded

homeowner’s policy did exclude coverage for a gunshot wound suffered when

another person was loading a rifle into the open back of his pick-up truck.

Worcester Ins. Co. v. Dairyland Ins. Co., 555 A.2d 1050, 1051-52 (Me. 1989)

(citing Union Mut. Fire Ins. Co., 521 A.2d at 311-12).

      [¶22] Although we have not considered issues of vehicle insurance

coverage for damages arising from assaults or other torts committed by

passengers outside of the insured vehicle, courts of other jurisdictions have

confronted “the general question of whether personal injuries resulting from

physical assaults by insured vehicle passengers or operators ‘arose out of’ the

ownership, maintenance or use of the vehicle.” Nationwide Mut. Ins. Co. v.

Brown, 779 F.2d 984, 988 (4th Cir. 1985).           Those courts “have almost

unanimously found no causal relation between the ‘use’ of the vehicle and such

assault-caused injuries.” Id. Thus, when a person used a truck to transport a

person to the scene of a shooting, the United States Court of Appeals for the

Fourth Circuit held that the truck use “was merely incidental, remote from the
12

type of conduct that is reasonably foreseeable with the normal use of such a

vehicle; and not the causative factor in producing” the resulting harm. Id. at

989. The “assault, an act wholly independent of the use of the truck, caused the

death. Thus, the incidental use of [the] truck in the shooting does not meet the

causal relation test of coverage.” Id.

      [¶23] Similarly, in Kangas v. Aetna Casualty & Surety Co., 235 N.W.2d 42,

43-44 (Mich. Ct. App. 1975), the court considered whether the policy could

cover damages incurred when the insured driver pulled his vehicle over and

several occupants exited the vehicle and assaulted a pedestrian. In a civil

action, the driver was found to have aided or abetted in an assault or battery.

Id. at 43. The court concluded that, whether or not an exclusion for intentional

acts precluded coverage, the acts that caused the injuries did not “aris[e] out of

the ownership, maintenance, or use” of the vehicle. Id. at 45-50 (quotation

marks omitted). The court concluded that, although in some circumstances the

foreseeable acts of others inside the vehicle might be covered, the connection

between the conduct and the vehicle was not “more than incidental, fortuitous

or but for” when the passengers assaulted someone outside the vehicle. Id. at

50.
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      [¶24] Thus, if the assailant left the insured vehicle to commit the

misconduct, or “the vehicle merely provide[d] a situs for the tort,” the injuries

do not arise out of the vehicle’s use. State Farm Mut. Auto. Ins. Co. v. Davis,

937 F.2d 1415, 1422 (9th Cir. 1991); see Kelley, 2017 ME 166, ¶ 7, 168 A.3d 779.

When the use of a vehicle has been held to have a sufficient causal relationship

to the injuries, the violence is generally perpetrated from a moving vehicle. See,

e.g., Davis, 937 F.2d at 1417, 1420 (shooting from a moving vehicle); Cung La v.

State Farm Auto. Ins. Co., 830 P.2d 1007, 1008, 1011 (Colo. 1992) (maneuvering

of vehicle to facilitate a shooting from the vehicle).

      [¶25] Consistent with these previous interpretations of analogous policy

terms, we conclude that the conduct that occurred when Bragg’s friend exited

the vehicle and inflicted property damage and personal injuries did not involve

the vehicle within the plain meaning of the policy. See Kelley, 2017 ME 166, ¶ 7,

168 A.3d 779. There is no “reasonable causal connection” between the use of

the vehicle and the injuries suffered by Haskell and Witham. Me. Mut. Fire Ins.

Co., 677 A.2d at 1075 (quotation marks omitted). All of the acts that caused

damages occurred while Bragg’s passenger was outside of the vehicle.

Although Bragg’s negligent act may have incidentally involved him using the

vehicle to take his friend away from Bragg’s home, the injuries and the property
14

damage are not causally connected to the vehicle use in a way that brings them

within the insurance coverage. See Kelley, 2017 ME 166, ¶ 7, 168 A.3d 779; see

also Doe v. State Farm Fire & Cas. Co., 878 F. Supp. 862, 867 (E.D. Va. 1995)

(“[T]here must be a causal connection between the injury and the use of the

vehicle as a vehicle.” (emphasis omitted)).1

         [¶26] Because the facts, viewed in the light most favorable to Haskell and

Witham, do not bring their damages within the policy’s coverage, we affirm the

summary judgment entered by the Superior Court.

         The entry is:

                           Judgment affirmed.



Marc N. Frenette, Esq., and Adam R. Lee, Esq. (orally), Trafton, Matzen, Belleau
& Frenette, LLP, Auburn, for appellants Martin Witham and Dawn Haskell

Matthew K. Libby, Esq. (orally), Monaghan Leahy, LLP, Portland, for appellee
State Farm Fire and Casualty Company


Waldo County Superior Court docket number CV-2018-24
FOR CLERK REFERENCE ONLY




     Because, viewing the evidence in the light most favorable to Haskell and Witham, we conclude
     1

that their damages were not caused by incidents that “involved” Bragg’s truck, we do not address
other issues of policy interpretation, such as whether those incidents constitute an “accident.”
