Accidental Shooting

Quadriplegia, Confidential Settlement

We represented a twenty year old college student who lost all bodily functions below his neck, including the ability to breathe on his own, as result of a shooting accident that damaged his spinal cord.

The Incident

On an October day a college student and other young men went to a rural, wooded area in Lane County to play a paintball game.  The game involved two teams of four and was played in a limited area next to a BLM road.  At about 11:00 a.m., the players began the first round of the game.  The paintball game was noisy.  A round started with a player yelling “Go!”  Teammates yelled to one another and yelled “I’m Out!” or similar statements when they were hit by paint.  The paintball guns themselves propel paint through loud air (CO2) bursts, and are capable of shooting 8-20 paintballs per second. First rounds in paintball are usually the loudest, because all players start with a full stock of paint ammunition and therefore do not feel pressured to ration their shots.  The first round for this game included the rapid fire of the guns.  The eight players shot their guns almost non-stop, with the combined players shooting thousands of CO2 blasts.  Indeed, every moment of the first round was filled with the sounds of loud popping CO2 bursts.

On that same day, others decided to spend their time enjoying off-road/four-wheel drive recreation.  One of those was a man who was driving his jeep with his girlfriend as a passenger.  That man’s parents were in a second Jeep, and his aunt drove a third Jeep.  They all drove their Jeeps on the BLM road adjacent to the paintball game.

The drivers focused their attention on maneuvering their Jeeps through the muddy and heavily rutted contours of the BLM road.  They did not notice  what was going on in the woods adjacent  to him. The road as it passed the paintball game went uphill.  The Jeep drivers were concerned that one might get stuck or have problems climbing the hill.  So, each Jeep driver waited and allowed the driver ahead to clear the hill before proceeding. 

While the third driver waited, his attention was focused on the other Jeeps and the driving task ahead of him.  The engine of his Jeep was running, the hard top of the Jeep was on, and the vehicle radio was on.  The engine of his Jeep had a modified muffler that made the exhaust system  louder.  Due to his visual concentration on the driving conditions and the Jeep’s interference with his ability to hear the forest outside, the driver did not see or hear the eight person paint ball game going on next to him, just 50-100 feet away in the woods.

After waiting in his running Jeep for approximately 1-2 minutes for the other Jeeps to ascend the hill, the third driver noticed from the corner of his eye something in the woods to the left of his vehicle, which he thought was a skunk.  He grabbed his rifle, stored between the center console and the front seat, and pointed it out the driver’s side window.  He steadied and aimed the rifle by bracing his left forearm on the vehicle’s door frame, and he pulled the trigger.  Within moments after shooting, the driver saw that people were in the woods and he realized that something was wrong.  It was not a skunk that he shot, it was the young college student.

One of the young men playing the game later explained that based on his first hand sensory experience as a person on foot in the area when the shot was fired from the Jeep, the sounds of the paintball game were so loud and obvious that a person on foot, and outside of a running vehicle would have easily realized that a game of paintball was being played by a group of people in the woods next to the BLM road.  Similarly, the driver later acknowledged that the use of the Jeep likely affected his ability to perceive that people were nearby.  He had hunted on foot for years, and based on that personal experience, he believes that if he had been on foot instead of operating his Jeep, he likely would have been able to hear the noises of the people who were playing the paintball game, realized that other people were nearby, and would not have pulled the trigger.  In other words, the mixing of the driving activities and the hunting activities was the conduct that led to the young man being shot.

How to pay for the harms and losses?

The out of pocket costs alone to support a young person with quadriplegia run well into the seven figures (millions of dollars).  This is not to compensate the injured person, but simply to provide necessary care and services.  The human losses are incalculable.  One of the jobs of the injured person’s attorney in a case as this is to find all of the resources that are available to help.

The person who pulled the trigger certainly did not have the personal resources.  He could work his entire life and not put a significant dent into the costs of taking care of a person with this kind of spinal cord injury.  Our analysis was there should be three liability insurance policies available.  First, the shooter’s parents had a $500,000 homeowner’s insurance policy that provided general liability coverage because the shooter was a resident of his parent’s home. The homeowner insurance carrier eventually paid its $500,000 policy limits.  While that may sound like a lot of money, it was unfortunately just the first drop needed in a very large bucket. 

Second, the driver had an automobile liability insurance policy,  which covered injuries resulting from the “use” of a motor vehicle.  We were eventually able to obtain those $250,000 policy limits. 

Third, the injured young man had had an insurance policy that provided a seven figure amount of underinsured motorist (UIM) coverage.  We requested the applicable UIM policy limits from that insurance company after following all of the mandated procedural requirements.  Upon receipt of the request, that insurance company reviewed some press coverage and the police report.  It did not conduct an independent investigation or interview any witness, and did not interview or ask to interview the injured young man.  It referred the request to apparently three different coverage counsel (one in-house lawyer, two outside law firms) to analyze the claim on that limited factual record.  

The police report and press coverage did not mention that the Jeep’s engine was running, that the muffler was modified, that the driver took aim by stabilizing the rifle on the door frame, that a paint ball game is very noisy with CO2 bursts and people shouting, that the driver did not focus on the woods before shooting because he was concentrating on the road and the four wheel drive task at hand, and that witnesses and the driver himself believed that had the  vehicle not interfered with his hearing perception of the forest and the game he would not likely have made the mistake of shooting from the vehicle.  The third insurance company   simply did not make itself aware of any of these facts that were intimately linked to the cause of the young man’s injury. 

Instead of conducting an independent investigation of the case, the third insurance company, without notice, sued the injured young man in a federal court case, claiming it had no obligation to pay him under the insurance policy.  For reasons unknown, the insurance company  also demanded that the federal court order that the young man pay the insurance company  attorney fees for suing him in federal court. 

On the same day it filed the federal action, the insurance company mailed the injured young man a letter,  received a few days later, denying his request for underinsured motorist benefits.  The letter said that the claim was denied because (1) the insurance company argued that it was questionable whether the young man was insured under the policy as a resident family member of his parents’ household, because at the time of the injury he was attending the University of Oregon; (2) it argued that the gunshot injury did not result from the “use” of a vehicle; and (3) the insurance company said it might think of reasons in the future to deny the claim and it wished to reserve its “right” to raise any other defense that may arise. 

The legal battles

Due to the manner in which it processed the injured young man’s claim and its ultimate denial of that claim, we believed that the insurance company was liable for breach of the insurance contract and breach of its contractual obligations of good faith and fair dealing.  Those legal battles were somewhat technical, and they were vigorously fought.

We argued that the insurance company breached the terms of the contract.  Denial was improper under the terms of the contract because the young man was a resident of his parents’ household for coverage purposes, and he sustained a bodily injury “arising out of the use” of a motor vehicle.  A young person temporarily going to college who is still a dependent of their parents is still a resident of their household for insurance purposes. 

The claim for bodily injury “arising out of the use” of a motor vehicle was more involved.  Oregon’s underinsured motorist insurance statute, Oregon Revised Statute (ORS) 742.504(1) provided that underinsured motorist coverage was available when:  “the insured is legally entitled to recover … from the owner or operator of an uninsured vehicle because of bodily injury sustained by the insured caused by accident and arising out of the ownership, maintenance or use of the [underinsured] vehicle.”  

The Legislature intended underinsured motorist coverage to broadly apply when the circumstances that lead to the insured’s bodily injury involve or have a connection with the use of a vehicle.  As the Oregon Supreme Court has long recognized, the clause “arising out of” the use of a vehicle for the purposes of insurance coverage captures not just injuries caused by vehicles but also captures injuries “originating from, incident to, or having connection with the use of” a vehicle. Oakridge Community Ambulance Service Inc. v. United States Fidelity and Guaranty Company, 278 Or 21, 563 P2d 164 (1977) (in the context of insurance coverage, “[t]he words ‘arising out of’ … are of broader significance than the words ’caused by'” and “are ordinarily understood to mean originating from, incident to, or having connection with the use of the vehicle”(emphasis added)).

The Legislature could have chosen to insert statutory text to limit underinsured motorist coverage to “injuries caused by the use of an underinsured vehicle,” but it did not.  See Carrigan v. State Farm, 326 Or 97, 103,  949 P2d 705 (1997) (“If the legislature desires to restrict the scope of coverage that the statute contemplates, it does not lack the linguistic tools necessary to achieve that outcome.”).  Consequently, underinsured motorist coverage applies when the circumstances that led to the insured’s bodily injury involve or have some connection with the use of a vehicle. 

The broad scope of coverage is further supported by the Oregon Supreme Court’s interpretation of similar statutory text in Carrigan.  In that case, as a man entered his car, a stranger approached and asked for a ride.  The man agreed.  Once en route, the stranger brandished a gun and ordered the man to drive to a neighborhood.   When they arrived, the stranger ordered the man to pull over and get out of the car.   The stranger also stepped out of the car and ordered the man to back away.  The man backed 30 feet away from the car, and the stranger shot him.  Afterward, the injured man sought help from his insurance company because he had bodily injury “resulting from the use” of a vehicle.  There was a dispute with the insurance company, and the Oregon Supreme Court recognized that the Legislature specifically instructs Oregon courts to interpret statutes in the Oregon Insurance Code in favor of the people covered by insurance (the insureds), because the purpose of the Insurance Code is for the protection of the insurance-buying public.  The Oregon Supreme Court ultimately concluded that their was insurance coverage because that man’s injury “arose as a consequence of the carjacking event that involved the ‘use’ of the vehicle. Therefore, plaintiff’s gunshot injury resulted from the use of a motor vehicle.”

In other words, a “gunshot injury results from the use of the vehicle if the injury is a consequence or effect to which any use of the vehicle leads.”   Insurance coverage should be  available “even when the injury was a direct consequence of something that does not constitute the use of a vehicle as long as the event leading to the injury “involved the ‘use’ of the vehicle.  Although the Carrigan case had differences from this case, we argued that this analysis should apply for this injured young man’s case. 

We argued that the underinsured motorist insurance policy should cover this young man’s injury, which “arose as a consequence” of an  event that  involved  “uses” of a vehicle.  Such uses, all of which were substantial factors contributing to the injury, included:

(1) The use of the vehicle for car-hunting, i.e., the fundamental conduct from which the young man’s injury originated;  

(2) The use of the vehicle as an enclosed space from the surrounding woods that diminished the shooter’s auditory  and visual perception of the surrounding woods;

(3) The use of the vehicle for car radio music, which diminished the shooter’s auditory  perception of his surroundings;

(4) The use of the vehicle of leaving its engine running with a muffler modified to be louder, which diminished the shooter’s ability to perceive; 

(5) The use of the vehicle to facilitate the shooting, including bringing the shooter to forested areas where hunting is legal, providing a vantage point from which to shoot his gun, the driver’s use of the vehicle frame to stabilize and brace the rifle to accurately aim, and stowing his rifle near the driver’s seat for the purposes of ready accessibility to shoot from the driver’s seat; and

(6) The  use of the vehicle for 4X4 driving to navigate particularly muddy and heavily-rutted roads, which drew the shooter’s  attention away from the nearby activities.

Reflections on the case

A person who suffers a complete spinal cord injury in the neck has some of the most severe injuries that medicine or law are asked to address.  These injuries are heartbreaking.  The human costs are staggering.  The cost of medical and assistive care over a young survivor’s lifetime runs well into the many millions of dollars. The reality is that few wrongdoers have the resources to put a significant dent in those needs.  On the other hand, even some additional financial resources can make a huge difference to someone’s life.

In this case, the young man needed specific assistive care to alleviate and prevent physical pain and to improve and prevent further physical degradation to his internal and external physical abilities.  He required a mechanical ventilator to breathe, and could make only limited sounds with his voice.  He could have hired an assistive voice companion/therapist (which he did not have the money to do before the lawsuit), then he would have been able to improve his voice so that he could speak more understandably.  If he had been able to employ a voice companion/therapist at the time that the insurance company should have provided the underinsured motorist benefits, he would have been on his way to regaining his physical voice to communicate with others, rather than the relative communicative isolation forced upon him.  There were many other instances where assistive/medical care, which had been unavailable because the insurance company had refused to pay, would have helped to partially restore the young man’s physical condition and alleviate some of his physical pain

Insurance companies can be harsh.  Here, the insurance company not only did no independent investigation of its own, but it sued the young man in federal court and asked that attorney fees be assessed against him, when he had done nothing wrong and there was absolutely no basis for seeking those attorney fees.  The insurance company raised a “residency” defense to paying  a legitimate claim, when we found out during litigation that its own internal documents repeatedly acknowledge that the young man was in fact a resident of his parents’ household at the time of his injury.  And the list goes on; the summary above is only the tip of this litigation iceberg.

As part of this case, we retained qualified insurance industry experts, who were  frankly bewildered why this insurance company picked the fights it did. This case was the young man’s last opportunity for a recovery to improve the quality of his impoverished life.  Too compromised a settlement would have left him with only a pittance, because he was required to reimburse the health insurance company and a government agency out of his recovery.  The case eventually settled for a confidential amount. 

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