Standard for Determining Whether Conduct Arises out of the use of a Vehicle
Through the Duty/Risk analysis it must be determined whether the insured’s conduct of which the plaintiff complains is a legal cause of the accident. If so, then it must be determined whether that conduct arose out of the use of a vehicle. In order for the conduct to arise out of use, the automobile must be essential to the theory of liability; the specific duty breached by the insured must flow from use of the automobile. If the specific duty breached by insured existed independently of the automobile, then liability does not arise out of use even though the duty could have been performed by use of an automobile. In the final analysis, common sense must be utilized in making the often difficult determination of whether use of the automobile is an essential ingredient of the duty breached by the insured.
See Carter v. City/Parish of EBR, 423 So.2d 1080 (La.1982), Kessler v. Amica Mutual Co., 573 So.2d 476 (La.1991), and McKenzie and Johnston, Louisiana Civil Law Treatise, Insurance (West).
The word “use” has a broader meaning than operation of the vehicle and generally includes any use of a vehicle related to its inherent purpose. As it applies to guest passengers, the words “arising out of” use means “originating from,” “growing out of,” or “flowing from” the use. Thus, all that is required is an adequate nexus between the vehicle and the accident. It is sufficient that the accident causing the injury is connected with the normal or expected use of a vehicle. It is sufficient that the accident causing the injury is connected with the normal or expected use of a vehicle. See Bernard v. Ellis, 111 So.3d 995 (La.2012).
- 1 Free Consultation
- 2 Will Travel to You
- 3 No Fee Unless We Recover