MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 20 20 ME Docket: Wal

- 19

- 401 Argued: May	11,	2020 Decided: June 11 ,	2020 Panel: MEAD,	GORMAN,	JABAR, HUMPHREY,	HORTON, and CONNORS ,	JJ.

DAWN H. HASKELL	et	al.

v. STATE	FARM	FIRE	AND CASUALTY	COMPANY

MEAD ,	J. [ ¶1] Dawn H. Haskell	 and	Martin W. Witham	 appeal	 from	 a	 summary judgment	entered	by	the Superior	C ourt	(Waldo	County, R.	Murray,	J. )	in	favor of	State	Farm	Fire	and	Casualty	Company	on	Haskell	and	Witham’s	complaint to	reach	and	apply	the	State	Farm	vehicle	insurance	coverage	of	a	man	found jointly	and	 severally	liable	 to	Haskell	and	Witham	 for	damages. Haskell	and Witham	 argue	 that they	 were	 entitled	 to	 a	 summary	 judgment	 because	 the underlying	 tort	 judgment	 established	 that	 State	 Farm’s	 insured	 had	 caused their	injuries	and	that	the	State	Farm	automobile	insurance	policy	covers	the damages	awarded	to	them	for	those	injuries.		We	aff irm	the	court’s	judgment.2 I.		BACKGROUND [¶ 2 ] The	 material	 facts	 are	 drawn	 from	 the	 parties ’ statements	 of material	 facts,	which	were	properly	supported	by	citations	 to	 the	record, see M.R.	Civ.	P.	56(h)(4),	viewed	in	the	light	most	favorable	to	Haskell and	Witham.
See InfoBridge,	 LLC	 v.	 Chimani,	 Inc. ,	 2020	 ME	 41,	 ¶ 12,

--- A.3d

--- . On March 27, 2013,	 Grover	 Bragg	 owned	 a	 truck	 insured	 by	 State	 Farm. Bragg used	 that	 truck	 in	 the	 early	 morning	 hours	 to	 transport	 an	 intoxicated	 and delusional	 friend	awa y	 from	Bragg’s	home.		Bragg’s	 friend	jumped	out	of	 the truck	while	the	truck	was	moving.		Bragg	pulled	over	but	did	not	exit	his	truck. Bragg’s	 friend	 then	 broke	 into	 Haskell	 and	 Witham’s	 house	 and	 thoroughly damaged	 windows	 and	 other	 property.	 	 At	 one	 po int,	 he	 got	into	 the	 bed	 of Bragg’s	 truck,	 but	 he	 left	 again	 and	 reentered	 Haskell	 and	 Witham’s	 house. When	 Witham	 attempted	 to	 restrain	 him,	 he	 assaulted	Witham,	 resulting	 in injury. [¶ 3 ] The	insurance	policy	on	Bragg’s	vehicle insured	Bragg	“ for	.	.	. the ownership,	maintenance,	or	use	of ”	his	vehicle. The	policy provided	as	follows regarding	coverage	for	liability	to	others:
We will	 pay	 damages	 an insured becomes	 legally	 liable	 to	 pay because	of:

a. bodily	injury	t o	others;	and3

b. damage	to	proper ty caused	by	an	accident	that	involves	a	vehicle	for	which	that insured is	provided	Liability	Coverage	by	this	policy. (Emphasis	omitted.) [¶ 4 ] In	 April	 2014,	 Bragg	 was	 served	 with	 Haskell	 and	 Witham’s complaint	alleging	Bragg’s	negligence,	among	 other claims that	 they brought against	 Bragg’s	 friend	 and	 others.	 	 Bragg	 did	 not	 file	 a	 timely	 answer,	 and	 a default	was	entered	against	him	in	June	2014. By March	2015,	State	Farm had received the	complaint , and in	2016,	it employed	counsel	to	represent	Bragg , admitting	 that	 it	 had the	 duty	 to	 defend.	 	 Bragg,	 through	 counsel,	 filed	 an answer	but	did	not	move	to	set	aside	the	entry	of	default. [¶ 5 ] At	 a	 hearing	 on	 damages,	 Bragg	 raised	 arguments	 and	 offered evidence	about	the	extent	of	damages	attributable	to him.		The	court concluded that	 Bragg	 and	 his	 friend	 were	 jointly	 and	 severally	 liable	 to	 Haskell	 and Witham and	 awarded damages in	 the	 amount of	 $428,071.64. Bragg’s negligence	was	based	on	findings	that,	worried	about	the	safety	of	people	in	his home and	possible	property	damage,	Bragg	took	his	intoxicated	and	delusional friend	for	a	drive , rather	than	calling	the	authorities , and	followed	his	friend’s directions	in	going	down	the	road	where	Haskell	and	Witham	live.		Based	on4 the	default,	the	court	acc epted	as	true	the	allegations	that	Bragg	was	aware	of and	assisted	his	friend	in	becoming	intoxicated	before	driving	his	friend	away from	his	home. We affirmed	 that	judgment	 on	appeal. See Haskell	v.	Bragg , 2017	ME	154,	167 A.3d	1246. [¶ 6 ] Haskell	and Witham	then	commenced	the	present	action	seeking	to reach	and	apply	Bragg’s	vehicle	insurance	policy, see 24

- A	M.R.S.	§	2904	(2020) , and	 to	 obtain	 a	 declaratory	 judgment	 that	 the	 coverage	 applies.	 	 State	 Farm moved	 for	summary	judgment,	and	Haskell	and	Wit ham	 filed	a	cross

- motion for	summary	judgment. [¶ 7 ] The	court entered	a	summary	judgment	in	favor	of State	Farm	and denied	 Haskell	 and	 Witham’s motion	 for	 summary	 judgment .	 	 The	 court reasoned	that,	although	State	Farm	was	bound	by	the	judgment	finding	B ragg liable	to	Haskell	and	Witham,	State	Farm	could	argue	that	the	conduct	for	which Bragg	 was	 held	 liable	 was	 not	 covered	 by	 the	 State	 Farm	 policy.	 	 The	 court concluded	that	the	damages	payable	to	Haskell	and	Witham	were	not	damages that	 Bragg	 became	 liab le	 to	 pay	 because	 of	 “an	 accident	 that	 involve[d]”	 a vehicle	covered	by	the	State	Farm	policy	and that	the	damages did	not	arise	out of	Bragg’s	use	of	the	vehicle.5 [¶ 8 ] Haskell	and	Witham	timely	appealed. See 14	M.R.S.	§	1851	(2020);
M.R. App.	P. 2B(c)(1).
II.	DISCUSSION [¶ 9 ]	 	 We	 review	 a	 court’s	 entry	 of	 summary	 judgment	 de	 novo	 as	 a question	of	law. Kelley	v.	N.	E.	Ins.	Co. ,	2017	ME	166,	¶	4,	168	A.3d	779. Two issues	have	been	 raised	 on	appeal:	 (A)	whether	 the	judgment	entered	in	 the underlyin g	 litigation	 determined	 all	 issues	 of	 causation	 pertinent	 to	 the coverage	decision,	and	(B)	whether	the	incident	for	which	Bragg	was	held	liable falls	within	the	coverage	of	the	State	Farm	policy.
A. Causation [¶1 0 ] “Upon	the	entry	of	a	default	for	failu re	to	timely	appear	or	respond in	an	action,	the	facts	alleged	in	the	complaint	are	deemed	to	have	been	proved and	 affirmative	 defenses	 are	 deemed	 to	 have	 been	 waived.” Haskell , 2017 ME 154,	 ¶	 4,	 167	 A.3d	 1246	 (citing M.R.	 Civ.	 P.	 8(b)

- (d) ).	 	 Thus,	 the

co mplaint’s	 allegations	 that	 Bragg’s	 negligent	 actions	 caused	 damages	 to Haskell	and	Witham	are	deemed	to	have	been	proved. Id. ¶	17. [¶1 1 ]		We	need	not	decide	whether	those	allegations	should	be	deemed proved	against	the	insurer	in	this	reach

- and

- apply	ac tion,	however,	because	the parties	 do	 not	 dispute	 the	material	 facts	 set	 forth	in	 the	 summary	judgment6 record,	 and	 those	 facts	 are	 consistent	 with	 the	 complaint’s	 allegations. The question for	 us	 to	 decide is	 whether	 th e finding of	 negligence	 based	 on	 the alleged	facts requires	the	insurance	company	to	apply	the	policy’s coverage	for bodily	 injury	 and	 property	 damages	 “ caused	 by an	 accident	 that	 involves	 a vehicle”	insured	by	the	policy. (Emphasis	added.) [¶1 2 ] We	“have repeatedly	stated	that	an insurer’s	duty	to	indemnify	is independent	from	its	duty	to	defend	and	that	its	duty	to	defend	is	broader	than its	 duty	 to	 indemnify.” Elliott	 v.	 Hanover	 Ins.	 Co. ,	 1998	 ME	 138,	 ¶ 11,
711 A.2d 1310

. State	 Farm	 did	 not,	 by	 conceding	 that	 the	 allegations	 of the complaint	may	fall	within	Bragg’s	policy	and	honoring	the	duty	to	defend,	waive its	claims	regarding	coverage

. See	id. C ounsel	appeared	under	a	reservation	of rights, and the	 coverage	 issue	 remained	 unresolved	 through	 the	 underlying litigation. [¶1 3 ] Thus, whether	 or	 not Haskell	and	Witham	 proved causation	 for purposes	 of	 the	 negligence	 action, the	 terms	 of	 the policy will	 determine whether	 coverage	 is	 owed. Id. (holding	 that,	 even	 when	 an	 insurer	 fails	 to defend	 its	 insured,	 the	 policy

— not	 the	 finding	 of	 tort	 liability

— determines whether	the	insurance	company	must	pay	the	insured). The	court	was	correct that,	 although	 Bragg’s	liability for	injuries may	 have	 been established	in	 the7 underlying	litigation,	the	injuries were	not	necessarily “caused	by	an	accident that	involves	a	vehicle”	insured	by	the	policy. The	question	here	is	whether	the facts presented	on	summary	judgment ,	 viewed	in	 the	light	most	 favorable	 to Haskell	and	Witham, see InfoBridge,	LLC ,	2020	ME	41,	¶ 12,

-- - A.3d

- -- , bring	the damages	within	the	coverage	of	Bragg’s	vehicle	insurance	policy.
B. Summary	Judgment	on	Policy	Coverage [¶1 4 ] Haskell	and	Witham do	 not	contend	 that	 there	 are	 any	genuine issues	 of	material	 fact.	 	 Rather,	 they	 argue that	 the	 court	misinterpreted	 the language	of	the	policy	in	concluding	that	the	damages	awarded	to	Haskell	and Witham	in	the	underlying	lawsuit	were	not	caused by an	acc ident	that	involved Bragg’s vehicle. [¶1 5 ] “The	review	of	a	judgment	in	a	reach	and	apply	action	requires us to	first	identify	the	basis	of	liability	and	damages	from	the	underlying	complaint and	judgment	and	then	to	review	the	.	.	.	insurance	policy	to determine	if	any	of the	 damages	 awarded	 in	 the	 underlying	 judgment	 are	 based	 on	 claims	 that would	be	 recoverable	pursuant	 to	 the	 .	 .	 .	policy.” Kelley ,	2017	ME	 166,	¶	 5,
168 A.3d	779	(quotation	marks	omitted).		“The	meaning	of	language	contained
in	an	ins urance	contract	is	a	question	of	law	that we review	de	novo.” Patrons Oxford	Ins.	Co.	v.	Harris ,	2006	ME	72,	¶	7,	905	A.2d	819

. “If	the	language	of	an8 insurance	policy	is	unambiguous, we interpret	it	in	accordance	with	its	plain meaning,	 but we construe ambiguous	 policy	 language	 strictly	 against	 the insurance	 company	 and	 liberally	 in	 favor	 of	 the	 policyholder.” Kelley , 2017 ME 166,	 ¶	 5,	 168	 A.3d	 779 (quotation	 marks	 omitted). We read	 the policy’s	 language	 “from	 the	 perspective	 of	 an	 average	 person	 untra ined	 in either	the	law	or	the	insurance	field	in	light	of	what	a	more	than	casual	reading of	the	policy	would	reveal	to	an	ordinarily	intelligent	insured.” Id. (quotation marks	omitted). [¶1 6 ] The	insurance	policy	provided	coverage	to	Bragg	for	his	use	of	the vehicle	and	covered	his	liability	for	bodily	injury	or	property	damage	to	others “caused	by	an	accident	that	involves	a	vehicle”	covered	by	the	policy. Thus,	we consider	whether	the	causal connection	between	the	conduct	and	the	vehicle	is sufficient	 when	 an	 insured	 uses	 his	 vehicle	 to	 drive	 a n	 intoxicated	 and delusional	 person	 to	 a	 place	 where	 that	 person	 exits	 the	 vehicle	 and	inflicts harm. [¶1 7 ] As	we	have	held	in	determining	whether	in juries	resulted	from	the “use”	 of	 a	 vehicle, “ [ t ] he	 causal	 relationship	 between	 the	 proper	 use	 of	 the vehicle	 and	 the	 subsequent	 injury	 need	 not	 be	 the	 proximate	 cause	 of	 the injury;	 coverage	 will	 be	 extended	 if	 there	 is	 a	 reasonable	 causal	 connection9 betw een	the	use	and	the	injury.” Me.	Mut.	Fire	Ins.	Co.	v.	Am.	Int’l	Underwriters
Ins.	 Co. ,	 677	 A.2d	 1073,	 1075	 (Me.	 1996) (quotation	 marks	 omitted). We recently	 opined	 that	 a	 dog	 bite	 that	 occurred	 in	 an	 insured	 vehicle	 did	 not constitute	an	“auto	accident” covered	by	the	pertinent	insurance	policy. Kelley , 2017	ME	 166,	 ¶	 7,	 168	 A.3d	 779. We reasoned	 that	 an	 auto	 accident	is	 “an unintended	 and	 unforeseen	 injurious	 occurrence	 involving	 an	 automobile,” which	may	include	incidents	other	than	a	collision	or	ca r	crash,	but	which	does not	 include	 “bodily	 injury	 from	 a	 dog	 bite	 that	 occurred	 in	 a	 car	 that	 had absolutely	 no	 causal	 connection	 to	 the	 injury	 and	 that	 was	 not	 even	 in operation.” Id. [¶1 8 ] Here,	the	policy	language	is	similar	to	the	terms we employed to construe	the	term “auto	accident.” Id. We	interpreted	that	term	to	mean “an unintended	and	unforeseen	injurious	occurrence involving an	automobile,” id. (emphasis	added) ,	and	Bragg’s	State	Farm	policy	covers	damages	caused	by	“an accident	that involv es a	vehicle”	insured	by	the	policy (emphasis	added). Thus, we	 find Kelley useful	 in	 interpreting	 the	 policy	 at	 issue	 here	 as	 we	 consider whether	 the	causal	link	between	 the	 vehicle	and	 the	injuries	is	 sufficient	 for coverage	to	apply.10 [¶1 9 ]	 	 We	 are	 also guided	 by	 our	 interpretations	 of	 insurance	 policy provision s covering	damages	arising	 from	 the	 “use”	 of	a	 vehicle .		We held in Maine	Mutual	 Fire	 Insurance Co. ,	 677	 A.2 d	 at	 1075, that	when	 a	 person	was injured	by	a	dog	who	was	tethered	to	a	truck	and	sitting	on	the	flatbed,	the	“‘use’ of	the	vehicle	as	an	object	to	secure [the] dog	was	not	directly	incidental	to	the operation	 of	 the	 vehicle	 and,	 accordingly,	 there	 [wa]s	 an	 insuffic ient	 causal connection	between	the	injury	and	the	use	of	the	vehicle	to	fall	within	the	terms of	the	automobile	policy.” [¶ 20 ] In	 contrast, we held	 that	 there	 was	 a	 “reasonable	 causal connection”	between	the	“use”	of	the	vehicle	and	the	injury	suffered	w hen	the injury	 arose	 from	 the removal of	 a loaded hunting	 firearm	 from	 the	insured vehicle. Union	Mut.	Fire	Ins.	Co.	v.	Commercial	Union	Ins.	Co. ,	521	A.2d	308,	309, 311	(Me. 1987). [¶ 2 1] Interpreting	analogous	language	in	homeowner	policy	exclusions,

w e similarly held	 that	 an	 injury	 suffered	 when	 the	 insured	 and	 the	 injured person	were	carrying	an	item away	from	a	vehicle to	the	insured’s	shed	did	not fall	within	an	exclusion	in	the	homeowner’s	policy	for	injuries	“arising	out	of the	ownership,	maintena nce,	use,	loading	or	unloading	of”	a	vehicle. Foremost Ins.	Co.	v.	Levesque ,	2005	ME	34,	¶¶	4,	11,	16,	868	A.2d	244 (emphasis	omitted)11 (quotation	marks	omitted)

. We concluded	that	the	exclusion	was	inapplicable because	the vehicle	was	not	involved	in	the	injury,	which	occurred	because the insured had	negligently	 placed an	 object	in	a	walkway	 or	 on	 the	 floor	 of	 the premises. Id. ¶¶ 11, 15

- 16. Conversely,	we	 held that an	identically	worded homeowner’s	policy did exclude	cov erage	for	a	gunshot	wound	suffered	when another	 person	 was	 loading	 a	 rifle	 into	 the	 open	 back	 of	 his	 pick

- up	 truck. Worcester	 Ins.	 Co.	 v.	 Dairyland	 Ins.	 Co. ,	 555	 A.2d	 1050,	 1051

- 52	 (Me.	 1989) (citing Union	Mut.	Fire	Ins.	Co. ,	521	A.2d at 311

- 12). [¶ 22 ] Although	 we	 have	 not	 considered	 issues	 of	 vehicle	 insurance coverage	 for	 damages	 arising	 from	 assaults	 or	 other	 torts	 committed	 by passengers	 outside	 of	 the	 insured	 vehicle,	 courts	 of	 other	 jurisdictions	 have confronted “ the	general	question	of	whether personal	injuries	resulting	 from physical	assaults	by	insured	vehicle	passengers	or	operators	‘arose	out	of’	the ownership,	 maintenance	 or	 use	 of	 the	 vehicle .” Nationwide	 Mut.	 Ins.	 Co.	 v.
Brown ,	 779	 F.2d	 984,	 988	 (4th	 Cir.	 1985). Those	 courts “ have	 almos t unanimously	found	no	causal	relation	between	the	‘use’	of	the	vehicle	and	such assault

- caused	injuries.” Id. Thus,	when	a	person	used	a	truck	to	transport	a person	 to	 the	 scene	 of	a	 shooting,	 the	United	States	Court	 of	Appeals	 for	 the Fourth	Circuit	he ld	that	the	truck	use	“was	merely	incidental,	remote	from	the12 type	of	conduct	 that	is	reasonably	 foreseeable	with	 the	normal	use	of	such	a vehicle;	and	not	 the	causative	 factor	in	producing”	 the	resulting	harm. Id. at 989. T he	“assault,	an	act	wholly	ind ependent	of	the	use	of	the	truck,	caused	the death.		Thus,	the	incidental	use	of	[the]	truck	in	the	shooting	does	not	meet	the causal	relation	test	of	coverage.” Id. [¶ 23 ]		Similarly,	in Kangas	v.	Aetna	Casualty	&	Surety	Co. ,	235 N.W.2d	42,
43

- 44	 (Mich. Ct.	 App.	 1975), the	 c ourt	 considered	 whether	 the	 policy could cover	damages	incurred	when the	insured	driver pulled his	vehicle over	and several	 occupants exited	 the	 vehicle and	 assaulted	 a	 pedestrian.	 	 In	 a	 civil action, the	driver was	found	to	have	aided or	abetted	in	an	assault	or	battery. Id. at	43. The	court	concluded	that ,	whether	or	not	an exclusion	for	intentional acts	precluded	coverage , the	acts	that	caused	the	injuries did	not	“aris[e]	out	of the	 ownership,	 maintenance,	 or	 use”	 of	 the	 vehicle

. Id. at	 45

- 50 (quotation marks	omitted) .		The	court	concluded	that,	although in	some	circumstances the foreseeable acts	of	others inside the	vehicle might be	covered,	the	connection between	the	conduct	and	the	vehicle	was	not	“more	than	incidental,	fortuitous or	but	for”	when	the	passengers assaulted	someone	outside the	vehicle. Id. at 50.13 [¶ 24 ] Thus, if the	 assailant	 left	 the	 insured	 vehicle	 to	 commit	 t he misconduct, or “the	vehicle	merely	provide[d]	a	situs	for	the	tort,” the	injuries do	 not	 arise	 out	 of	 the	 vehicle’s	 use. State	 Farm	Mut.	 Auto.	 Ins.	 Co.	 v.	Davis , 937 F.2d	1415,	1422	(9th	Cir.	1991) ; see Kelley ,	2017	ME	166,	¶	7,	168	A.3d	779. When	the use	of	a	vehicle	has	been	held	to	have	a	sufficient	causal	relationship to	the	injuries,	the	violence	is	generally	perpetrated	from	a	moving	vehicle. See,
e.g. , Davis ,	937	F.2d	at	1417,	1420	(shooting	from	a	moving	vehicle); Cung	La	v.
State	Farm	Auto.	I ns.	Co. ,	830	P.2d	1007,	1008,	1011	(Colo.	1992) (maneuvering of	vehicle	to	facilitate	a	shooting	from	the	vehicle). [¶ 25 ]		Consistent	with	these	previous	interpretations	of	analogous	policy terms,	we	conclude	that	t he	conduct	that	occurred	when	Bragg’s	fri end	exited the	vehicle	and	inflicted	property	damage	and	personal	injuries	did	not involve the	vehicle within	the	plain	meaning	of	the	policy

. See	Kelley ,	2017	ME	166,	¶ 7, 168	A.3d	779. There	is	no	“reasonable	causal	connection”	between	the	use	of the	v ehicle	and	the	injuries	suffered	by	Haskell	and	Witham. Me.	Mut.	Fire	Ins.
Co. ,	677	A.2d	at	1075	 (quotation	marks	 omitted). All	 of	 the	acts	 that	caused damages	 occurred	 while	 Bragg’s	 passenger	 was	 outside	 of	 the	 vehicle. Although	Bragg’s	negligent	act	may	have	incidentally	involved	him	using	 the vehicle	to	take	his	friend	away	from	Bragg’s	home,	the injuries	and the property14 damage are	not	causally	connected	to	the	vehicle	use	in	a	way	that	brings	them within	the	insurance	coverage. See Kelley ,	2017	ME	166,	¶	7,	168	A.3d	779 ; see also Doe	 v.	 State	 Farm	 Fire	&	 Cas.	 Co. ,	 878	 F.	 Supp.	 862,	 867	 (E.D.	 Va.	 1995) (“[T]here	must	be	a causal	connection	between	 the	injury	and	 the	use	of	 the vehicle	as	a	vehicle.” (emphasis	omitted) ). 1 [¶ 26 ]		Because	the	facts,	viewed	in	the	light	most	favorable	to	Haskell	and Witham,	do	not	bring	their	damages	within	the	policy’s	coverage,	we	affirm	the summary	judgment	entered	by	the	Superior	Court. The	entry	is: Judgment	affirmed.

Marc	N.	Frenette,	Esq.,	and	Adam	R.	Lee,	Esq.	(orally),	Trafton,	Matzen ,	Belleau & Frenette,	LLP,	Auburn,	for	appellants	Martin	Witham	and	Dawn	Haskell Matthew	K.	Libby,	Esq.	(orally),	Monaghan	Leahy,	LLP,	Portland,	 for appellee State	Farm	Fire	and	Casualty	Company

Waldo County Superior	Court	docket	number	CV

- 2018

- 24 F OR C LERK R EFERENCE O NLY

1 Because ,	viewing	the	evidence	in	the	light	most	favorable	to	Haskell and	Witham, we	conclude that	the ir	damages	were	not	caused	by	incidents	that	“involved”	Bragg’s	truck,	we	do	not	address other	issues	of	policy	interpretation,	such	as	whether	those	incidents	constitute	an	“accident.”