FEDERAL COURT PONDERS WHETHER FLOOD DEATH AROSE OUT OF USE OF AUTOMOBILE
A federal judge in Dallas recently denied an insurer’s motion for summary judgment, potentially opening up this issue for further litigation. Covington Specialty Ins. Co. v. USAI LP, 3:18-CV-3271-N, 2020 WL 2132598 (N.D. Tex. May 4, 2020) (slip op.) involved a wrongful death suit wherein a private security guard patrolling a property in a vehicle drowned when rapidly rising waters swept both him and his vehicle away. The defendant’s general liability carrier contended the claim was excluded by the policy’s automobile exclusion.
The underlying petition alleged, “…floodwaters engulfed Decedent’s vehicle. As the Decedent escaped the vehicle, floodwaters swept the vehicle and Decedent over the embarkment and into Turtle Creek.” The petition went on to allege the guard’s body was later found separately from the vehicle.
The Court noted that for an auto exclusion to apply, the automobile must be more than the mere situs of the accident, but instead must be a substantial factor in bringing about the injury. Examining these allegations under the eight-corners rule, the court held it was not clear that the automobile was even the situs of the accident, let alone a substantial factor in bringing it about. Thus, the insurer could not achieve summary judgment on its claim that it owed no duty to defend the insured.