Posted on 03/11/2023 5:36:25 AM PST by billorites
No, says Judge Fernando Gaitan's opinion today in Geico Gen. Ins. Co. v. Brauner (W.D. Mo.). The policy covered "bodily injury" "arising out of the ownership, maintenance or use" of an automobile, but the court held that this language didn't cover such a situation:
Kansas courts have held that "For an automobile insurer to be liable for an automobile accident, unless the express language of an insurance policy provides otherwise, the automobile must, in some manner, be involved in the accident, and the mere fact that an accident takes place in or near the automobile does not impose responsibility upon the insurer." Here, GEICO argues that the auto at issue in this case was not being used as a vehicle when the transmission of HPV occurred; instead, it was the mere situs of the alleged negligence, or at best was being used as a shelter (which is also an insufficient use under Kansas law to trigger coverage under Kansas auto policies).
Brauner [the insured] … argues that the HPV was contracted [by his sexual partner] as a result of a common, foreseeable, automobile use—sexual relations in a car. Defendant Brauner argues that the injury here is a result of a natural and reasonable incident or consequence of the use of the involved vehicle, and Kansas law requires no more than a minimal causal connection between the use of the vehicle and the injury. See Garrison v. State Farm Mutual Auto Ins. Co. (Kan. 1995) (finding a sufficient causal connection where the vehicle had been used to transport hunters and a gun discharged injuring a party). Brauner argues that "people have been generally known to have used vehicles as a venue for sexual relations dating back to the invention of the automobile and if GEICO wanted to exclude coverage for sex in a car, it could have done so."
Upon review of the parties' arguments, the Court finds that consensual sexual relations inside a car do not constitute a "use" of the automobile within the meaning of the subject policy. If the Court applied a mere "foreseeability" concept such as what Brauner advocates for in his reply suggestions to his summary judgment motion, all manner of injuries would become covered injuries despite having no real relationship between the use of an auto as an auto. Here, there is no real causal connection between the transmission of HPV and Brauner's vehicle; instead, the vehicle is the mere situs of the transmission of venereal disease. Accordingly, the Court finds that summary judgment must be granted in GEICO's favor.
The court also noted,
Defendant Brauner also argues that the use of a car for consensual sex is an activity that 50% or more American adults have engaged in … citing Cindy Struckman-Johnson, Kayla Nalan-Sheffield, & Samuel Gaster, Sexual Behavior in Parked Cars Reported by Midwestern College Men and Women, The Journal of Sex Research (2017). After reviewing that article, which provides the results of an anonymous survey of a mere 195 men and 511 women at a small midwestern university, the Court is dubious that such study stands for the broad proposition asserted by Defendant Brauner that 50% or more of all American adults have engaged in such behavior.
I'm not dubious at all about that.
For an earlier phase of the case, involving the defendant's attempt to litigate pseudonymously, see this post.
That title is so funny. Then I read it and realized it’s an actual THING. [smh]
Heh. ;-)
Commnets about ambulace chasing lawyers is moot here. This is the insurance company suing their client. Not unusual.
Also the claim is the Mr. Brauner infected the young lady with HPV. The woman had already won a $5.2 million judgement. This is a description from an eariler court order sending the case to a federal court in Western Missouri.
This isn’t the typical insurance coverage dispute. Following alleged unprotected sexual activity with defendant Martin Brauner in his car, a Missouri woman-M.O.-allegedly contracted anogenital human papillomavirus (HPV) from him. M.O. then demanded $1 million in damages under Brauner’s Kansas Auto Insurance Policy issued by plaintiffs Geico General Insurance Company and Government Employees Insurance Company (collectively, “GEICO”). GEICO brought this declaratory judgment action against defendant Brauner and M.O., seeking a declaration of no coverage for M.O.’s alleged injuries. GEICO brought the action in our court because Brauner is a Kansas resident, the at-issue insurance policy is a Kansas Auto Policy, and some of the alleged actions that led to the underlying tort claim took place in Kansas.
Geico Gen. Ins. Co. v. Brauner, No. 21-2164-DDC-ADM, (D. Kan. Feb. 9, 2022)
Quite frankly, I don’t think the $5.2 million judgement is warrented. From another article:
According to the insurers’ memorandum in support of summary judgment, insured Martin Brauner and a woman identified as M.O. began a sexual relationship in November 2017 and engaged in unprotected sex at M.O.’s home, at Brauner’s home and inside his 2014 Hyundai Genesis.
M.O. was diagnosed with HPV in October 2018, but the two continued to have unprotected sex, the insurers say.
It doesn’t buff right out?
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