No, says the opinion of judge Fernando Gaitan today in Geico Gen. Ins. Co. vs. Brauner (WD Mo.). The policy covered “bodily injury” “resulting from the possession, maintenance or use” of an automobile, but the court held that this wording did not cover such a situation:
Kansas courts have held that “for an automobile insurer to be liable for an automobile accident, unless the express wording of an insurance policy provides otherwise, the automobile must, one way or another, to be involved in the accident, and the mere fact that an accident takes place in or near the automobile does not impose liability on the insurer.” Here, GEICO argues that the automobile at issue in this case was not being used as a vehicle when HPV transmission occurred; instead, it was mere situs of alleged negligence, or at best was used as shelter (which is also insufficient use under Kansas law to trigger coverage under Kansas auto policies).
brauner [the insured] … maintains that HPV was contracted [by his sexual partner] as a result of a common and foreseeable use of the automobile: sexual relations in the car. Defendant Brauner contends that the injury here is the result of a natural and reasonable incident or consequence of the operation of the vehicle involved, and Kansas law requires no more than a minimal causal connection between the vehicle use and injury. See Garrison v. State Farm Mutual Auto Ins. Co. (Kan. 1995) (finding sufficient causation when the vehicle had been used to transport hunters and a firearm had discharged injuring one party). Brauner argues that “people have generally been known to have used vehicles as a place of sex since the invention of the automobile and if GEICO had wanted to exclude coverage for sex in a car, it could have done so”.
After reviewing the arguments of the parties, the Court concludes that consensual sexual relations inside a car do not constitute “use” of the automobile within the meaning of the policy in question. If the Court were to apply a simple concept of “foreseeability” such as Brauner advocates in his suggested response to his motion for summary judgment, all kinds of injuries would become covered injuries despite the lack of any real relationship between the use of an automobile as an automobile. Here, there is no real causal link between HPV transmission and Brauner’s vehicle; instead, the vehicle is the mere situs of venereal disease transmission. Accordingly, the Court finds that summary judgment should be granted in favor of GEICO.
The court also noted,
Defendant Brauner also argues that using a car for consensual sex is an activity that 50% or more of American adults have engaged in… citing Cindy Struckman-Johnson, Kayla Nalan-Sheffield and Samuel gaster, Sexual Behavior in Parked Cars Reported by Midwestern College Men and Women, The Journal of Gender Research (2017). After reviewing this article, which provides the results of an anonymous survey of only 195 men and 511 women at a small Midwestern university, the Court doubts that such a study corresponds to the general proposition affirmed by the defendant Brauner according to which 50% or more of all American adults have engaged in such behavior.
I have no doubts about it at all.
For an earlier phase of the case, involving the defendant’s attempt to plead under a pseudonym, see this post.