April 25, 2022- Jennifer McKinley v. Interinsurance Exchange of the Automobile Club, No. A-1-CA-38632

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number:	2
Filing Date: April 25, 2022	3
No. A-1-CA-38632	4
JENNIFER MCKINLEY, as Personal	5
Representative of the ESTATE OF	6
WILLIAM MCKINLEY,	7
Plaintiff-Appellant,	8
v.	9
INTERINSURANCE EXCHANGE OF	10
THE AUTOMOBILE CLUB and	11
FARMERS INSURANCE COMPANY	12
OF ARIZONA,	13
Defendants-Appellees.	14
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	15
Lisa C. Ortega, District Judge	16
Plotsky & Dougherty, P.C.	17
David L. Plotsky	18
Albuquerque, NM	19
L. Helen Bennett	20
Albuquerque, NM	21
for Appellant	22
Eaton Law Office, P.C.	23
James P. Barrett	24
Albuquerque, NM	25
for Appellee Interinsurance Exchange of the Automobile Club	26
Court of Appeals of New Mexico
Filed 4/25/2022 9:21 AM

Hatcher Law Group, P.A.	1
Scott P. Hatcher	2
Santa Fe, NM	3
for Appellee Farmers Insurance Company of Arizona	4

OPINION	1
WRAY, Judge.	2
{1} 	Plaintiff Jennifer McKinley, on behalf of the Estate of William McKinley,	3
appeals the district court’s grant of summary judgment in favor of Interinsurance	4
Exchange of the Automobile Club (Auto Club) and Farmers Insurance Company of	5
Arizona (FICA) (collectively, Defendants). Plaintiff additionally brought claims	6
against Defendants Tyler Hernandez and Craig Whited (collectively, the Hernandez	7
Defendants), which were dismissed by stipulation.	8
{2} 	The sole issue on appeal is whether the district court correctly ruled, based on	9
stipulated facts, that the intentional stabbing of William McKinley was not covered	10
by either of the identified uninsured/underinsured motorist (UM/UIM) policies	11
under which he could be considered an insured. Our Supreme Court’s standard, set	12
forth in Britt v. Phoenix Indemnity Insurance Company, 1995-NMSC-075, 120 N.M.	13
813, 907 P.2d 994, has long been applied to evaluate whether a UM/UIM insurance	14
policy includes coverage for an intentional tort committed by an uninsured or	15
underinsured tortfeasor. Applying Britt, we conclude that the stipulated facts in the	16
present case did not demonstrate that the Hernandez Defendants used the vehicle to	17
facilitate the harm. We therefore affirm.	18

2
BACKGROUND	1
{3} 	For the purposes of summary judgment, the relevant facts were stipulated in	2
the district court and before us on appeal. On December 26, 2015, the Hernandez	3
Defendants drove to a neighborhood in an uninsured vehicle and carried out a series	4
of car burglaries. Around 4:00 a.m., the Hernandez Defendants parked the uninsured	5
vehicle at the bottom of Mr. McKinley’s driveway, walked up the driveway to Mr.	6
McKinley’s parked truck, and broke a window. Mr. McKinley caught the Hernandez	7
Defendants stealing property from his truck. As the Hernandez Defendants fled, they	8
dropped some of the stolen property at the bottom of Mr. McKinley’s driveway but	9
managed to get his tool bag into the uninsured vehicle. Mr. McKinley chased the	10
Hernandez Defendants into the uninsured vehicle and fought with them there.	11
During the fight, one of the Hernandez Defendants stabbed Mr. McKinley, and they	12
both drove off in the uninsured vehicle. Mr. McKinley died from his injuries later	13
that day. Hernandez was criminally charged and convicted for Mr. McKinley’s	14
death.	15
{4} 	Because the Hernandez Defendants’ vehicle was uninsured or minimally	16
insured, Plaintiff brought claims for UM/UIM coverage under two policies issued	17
by 	Defendants. 	The 	FICA 	policy 	regarding 	“Uninsured 	Motorist 	Coverage	18
(Including Underinsured Motorist Coverage)” stated:	19
We will pay all sums which an insured person is legally entitled to	20
recover as damages from the owner or operator of an uninsured motor	21

3
vehicle because of . . . [b]odily injury sustained by the insured person.	1
The bodily injury must be caused by accident and arise out of the	2
ownership, maintenance or use of the uninsured motor vehicle.	3
The Auto Club policy contained similar language. Defendants moved for summary	4
judgment and argued that no coverage existed, because Mr. McKinley’s injuries did	5
not arise from the “use” of an uninsured vehicle. Plaintiff filed a similar cross-motion	6
for partial summary judgment. All three motions sought a ruling based on competing	7
analyses 	of 	essentially 	stipulated 	material 	facts. 	The 	district 	court 	granted	8
Defendants’ motions and denied Plaintiff’s motion. Plaintiff appeals from the district	9
court’s order granting Defendants’ motions.	10
DISCUSSION	11
{5} 	Plaintiff’s claims for coverage arise from the two UM/UIM policies. UM/UIM	12
coverage is governed both by the language of the insurance policy itself and by New	13
Mexico’s uninsured motorist statute. NMSA 1978, § 66-5-301 (1983). The Britt	14
Court explained that generally “the uninsured motorist statute and contracts arising	15
thereunder should be construed liberally in favor of coverage in order to implement	16
the remedial purposes behind that statute.” 1995-NMSC-075, ¶ 11. That purpose is	17
“to expand insurance coverage and to protect individual members of the public	18
against the hazard of culpable uninsured motorists.” Id. (internal quotation marks	19
and citation omitted). Because of these statutory policies, the burden to establish	20
UM/UIM coverage may be “something less” than the burden to prove liability when	21

4
making “an insured motorist claim.” Id. ¶ 12. Nevertheless, to establish coverage	1
under the policy, the injuries must arise from “the use of an uninsured vehicle.” Id.	2
¶¶ 3, 15. The Britt test thus seeks a balance between the broad protections of the	3
UM/UIM statute and the requirements of the insurance contract. See id. ¶¶ 9, 15-16.	4
{6} 	The parties agree the Britt test applies in the present case. As Plaintiff notes,	5
“[t]he parties agreed to have the [d]istrict [c]ourt decide the coverage issue on cross-	6
motions for summary judgment, deciding as a matter of law on stipulated facts.” Our	7
role on appeal is therefore to determine whether the district court properly applied	8
the summary judgment standard and the Britt test to the stipulated facts, in order to	9
evaluate whether the policies at issues extended coverage as a matter of law to Mr.	10
McKinley’s injuries.	11
I. 	Summary Judgment and the Standard of Review	12
{7} 	“Summary judgment is proper if there is no genuine issue as to any material	13
fact and the moving party is entitled to judgment as a matter of law.” Romero	14
Excavation & Trucking, Inc. v. Bradley Const., Inc., 1996-NMSC-010, ¶ 4, 121	15
N.M. 471, 913 P.2d 659 (internal quotation marks and citation omitted). At the	16
summary judgment stage, if the moving party satisfies its initial burden to make a	17
prima facie factual showing warranting summary judgment, “the burden shifts to the	18
non-movant to demonstrate the existence of specific evidentiary facts which would	19
require trial on the merits.” Romero v. Philip Morris Inc., 2010-NMSC-035, ¶ 10,	20

5
148 N.M. 713, 242 P.3d 280 (internal quotation marks and citation omitted). If the	1
party opposing summary judgment adduces evidence regarding material disputed	2
facts and/or reasonable inferences, summary judgment is inappropriate. Id. ¶¶ 10-	3
11. “Even where the basic facts are undisputed, if equally logical but conflicting	4
inferences can be drawn from the facts, summary judgment should be denied.”	5
Fischer v. Mascarenas, 1979-NMSC-063, ¶ 10, 93 N.M. 199, 598 P.2d 1159.	6
{8} 	The parties in the present case approached summary judgment based on	7
stipulated facts and did not dispute the inferences to be drawn from the facts. Plaintiff	8
asserted additional facts, but did not support them with additional evidence.	9
Although Plaintiff filed a motion for partial summary judgment based on one of the	10
Britt requirements, the motion relied on the same evidence Defendants presented in	11
their motions for summary judgment. Plaintiff did not identify for the district court	12
reasonable inferences to be drawn in her favor from the stipulated facts that would	13
create a dispute of fact, nor does she argue to this Court that the district court	14
improperly failed to draw reasonable inferences from the stipulated facts in her	15
favor. When parties stipulate to the facts, as in the present case, on appeal, they “are	16
bound by the facts as stipulated.” Romero Excavation & Trucking, Inc., 1996-	17
NMSC-010, ¶ 4. We therefore review the grant of summary judgment de novo and	18
consider whether the district court “correctly applied the law” to the stipulated facts.	19
See id. ¶ 5.	20

6
II. 	The Britt Requirements	1
{9} 	The law, in the present case, is the three-part test established in Britt and	2
developed in subsequent precedents. In Britt, our Supreme Court considered whether	3
UM/UIM policy language that limited coverage to accidents “arising out of the	4
ownership, maintenance, or use of the uninsured motor vehicle” applied to cover	5
injuries 	resulting 	from 	an 	intentional 	tort—a 	stabbing—committed 	after 	an	6
uninsured vehicle caused a collision. 1995-NMSC-075, ¶¶ 1-3 (internal quotation	7
marks omitted). The Britt Court determined that the stabbing was an “accident”	8
under the policy, id. ¶ 8, and subsequently adopted a three-part test to determine	9
“whether intentional conduct and its resulting harm arises out of the use of an	10
uninsured vehicle.” Id. ¶¶ 15-16. This Court recently articulated the three-part test	11
as follows:	12
(1) whether a sufficient causal connection exists between the use and	13
the harm, which requires that the vehicle be an active accessory in	14
causing the injury; (2) whether an act of independent significance has	15
broken the causal link; and (3) whether the use to which the vehicle was	16
put was a normal use of that vehicle.	17
Haygood v. United Servs. Auto. Ass’n, 2019-NMCA-074, ¶¶ 10, 12, 453 P.3d 1235	18
(alterations, quotation marks, and citation omitted). A court may only determine that	19
the 	“causal 	connection 	required 	by 	statutory 	and 	policy 	language 	has 	been	20
established and that coverage exists” if the analysis of each of the three requirements	21
results “favorably for the insured.” Id. ¶ 10. In the present case, the district court	22

7
relied on the second Britt requirement and determined that “independent acts of	1
significance broke any causal link between the use of the uninsured vehicle and the	2
intentional stabbing.” We agree, but first consider the Britt holding in greater detail.	3
{10} 	In Britt, our Supreme Court considered the impact of an intentional tort on	4
UM/UIM coverage. See 1995-NMSC-075, ¶ 1. In Britt, the plaintiff was a passenger	5
in a vehicle that was struck from behind by an uninsured vehicle, after which the	6
plaintiff was stabbed by a passenger from the uninsured vehicle. Id. ¶¶ 1-2. Our	7
Supreme Court determined that (1) “there well may have been a sufficient causal	8
link between the use of the uninsured vehicle for transportation and [the plaintiff’s]	9
injuries,” and (2) “transportation would be a normal use.” Id. ¶¶ 15-16. Whether,	10
however, the “attack by the passengers” from the uninsured vehicle independently	11
broke the causal link between the use of the vehicle and the injury depended on the	12
intent of the driver of the uninsured vehicle. Id. ¶ 16. The Court explained that the	13
causal link would remain intact if the uninsured driver rear-ended the front vehicle	14
“in complicity with the assailants or in order to facilitate the attack.” Id. If, however,	15
the intent to attack developed after the collision, the stabbing would have broken	16
“the causal link between the use of the vehicle and [the plaintiff’s] injury.” Id.; see	17
also Haygood, 2019-NMCA-074, ¶ 16 (applying the intent principles from Britt and	18
concluding that “nothing in the record suggests the use of the car as storage	19
facilitated [the] assault and nothing suggests [the assailant] even contemplated the	20

8
assault in engaging in this use”). Thus, when a normal use of an uninsured vehicle	1
is interrupted by an intentional tort that is a cause of the injury, a UM/UIM policy	2
may still provide coverage if the insured can prove that the vehicle was used to	3
facilitate the circumstances that caused the harm.1
4
{11} 	Plaintiff maintains that the Hernandez Defendants used the vehicle to cause	5
the injury, because the vehicle provided the Hernandez Defendants with “access to	6
a deadly weapon,” the structure of the car facilitated the attack, and the Hernandez	7
Defendants 	“were 	clearly 	in 	the 	process 	of 	using 	the 	[vehicle] 	to 	escape	8
apprehension when the stabbing occurred.” Plaintiff contends that “Hernandez was	9
clearly prepared to use deadly force and was able to quickly and easily access a	10
deadly weapon upon entering the [vehicle] to flee the scene.” Plaintiff argues that	11
the record does not support a conclusion that the Hernandez Defendants “meant to	12
thieve, not to kill.” The stipulated facts, however, do not support an inference that	13
the Hernandez Defendants used the vehicle to facilitate an attack on Mr. McKinley,	14
either based on access to the knife, the structure of the car, or the potential for escape.	15
{12} 	For the Hernandez Defendants to have used the vehicle to facilitate the attack	16
based on the access to weapons, the record would have to indicate at least that the	17
1Nothing in Britt suggests that the actual outcome, the specific harm, must
have been intended in order to establish coverage. The Britt Court did not require
that the uninsured driver intend for the ultimate stabbing to occur, only that the
vehicle was used “to facilitate the attack.” 1995-NMSC-075, ¶ 16.

9
Hernandez Defendants kept weapons in the vehicle to facilitate attacks. In Miera v.	1
State Farm Mut. Auto. Ins. Co., we noted that the vehicle in question “held both a	2
person and an instrumentality” that the uninsured driver “knew to be dangerous.”	3
2004-NMCA-059, ¶ 14, 135 N.M. 574, 92 P.3d 20. The record in the present case	4
does not reveal where or when the knife was acquired. The record does not show	5
whether the knife was on Hernandez’s person or in the vehicle, or whether it was	6
acquired during the robberies, was always in the vehicle, or carried for protection.	7
The stipulated facts show only that a knife was used to injure Mr. McKinley after he	8
was at least partially inside the vehicle. In short, the record does not reveal whether	9
the Hernandez Defendants used the vehicle for access to weapons.	10
{13} 	In Miera, access to the weapon was considered in combination with other	11
facts, including the known dangerousness of the passenger and the use of the car “to	12
maneuver to a point that accelerated the confrontation.” Id. This is similar to	13
Plaintiff’s contention that the Hernandez Defendants used the structure of the vehicle	14
to facilitate the attack. The stipulated facts, however, show only that the Hernandez	15
Defendants ran away from Mr. McKinley to the vehicle, Mr. McKinley followed, an	16
altercation occurred inside the vehicle, and Mr. McKinley was fatally stabbed. Using	17
the vehicle to benefit from its inherent characteristics suggests some level of	18
planning or intent to attack that is not logically inferred from the bare stipulated facts	19
in the present case. See Romero, 2010-NMSC-035, ¶ 10 (“An inference is not a	20

10
supposition or a conjecture, but is a logical deduction from facts proved and guess	1
work is not a substitute therefor.” (internal quotation marks and citation omitted));	2
State Farm Ins. Co. v. Bell, 39 F. Supp. 3d 1352, 1357-58 (D. N.M. 2014) (describing	3
evidence offered to show the connection between the use of a car’s inherent	4
characteristics and harm); see also Barncastle v. Am. Nat’l Prop. & Cas. Cos., 2000-	5
NMCA-095, ¶ 10, 129 N.M. 672, 11 P.3d 1234 (concluding that “[n]o act of	6
independent significance broke the casual chain,” when “the vehicle allowed the	7
driver and the shooter to pull alongside [the p]laintiff’s vehicle at the red light in an	8
innocent manner,” was running at all times, and concealed the identity of the driver	9
and the shooter (internal quotation marks omitted)). Although the evidentiary burden	10
is not high, see Britt, 1995-NMSC-075, ¶ 12, and circumstantial evidence may	11
suffice to overcome summary judgment, see Schneider Nat’l, Inc. v. N.M. Tax’n &	12
Revenue Dep’t, 2006-NMCA-128, ¶ 18, 140 N.M. 561, 144 P.3d 120, some evidence	13
is required to permit an inference that the Hernandez Defendants used the vehicle’s	14
inherent characteristics to facilitate the attack on Mr. McKinley.	15
{14} 	In Britt, our Supreme Court required some evidence that the ultimate harm, a	16
stabbing, was connected to use of the uninsured vehicle. 1995-NMSC-075, ¶ 16. The	17
Britt Court explained an unbroken connection between the use of an uninsured	18
vehicle, an intentional tort, and an injury could be established by showing the vehicle	19
was used to facilitate the attack. Id. Otherwise, the use of the vehicle would be	20

11
interrupted by the attack itself. Id. As this Court stated in Haygood, “had the intent	1
to attack [in Britt] developed independently of the collision, the attack would have	2
severed any connection between the injury and the earlier qualifying use of the	3
vehicle.” 2019-NMCA-074, ¶ 16. In 	Haygood, we affirmed dismissal of the	4
plaintiff’s claim because the stipulated facts did not support a conclusion that the	5
asserted normal use of the vehicle created an unbroken causal connection with the	6
attack. Id. The Haygood plaintiff argued that the “normal use” of storing drugs in	7
the uninsured vehicle was causally connected to the shooting, because the assailant	8
believed the victim was stealing those drugs. Id. ¶ 15. We concluded that nothing in	9
the stipulated facts suggested the Haygood assailant “even contemplated the assault	10
in engaging in [these] use[s].” Id. ¶ 16. Similarly, in the present case, the stabbing	11
of Mr. McKinley interrupted the use of the vehicle to flee, unless Plaintiff could	12
establish that the Hernandez Defendants used the vehicle to facilitate an attack.	13
{15} 	Plaintiff paints a broad picture of the uses of the vehicle from “transport[ing]	14
the thieves to and from the places they intended to plunder, and then to transport the	15
stolen property,” up to using the vehicle “to protect themselves from apprehension	16
by Mr. McKinley by stabbing him in the close confines of the [vehicle] and then	17
using the [vehicle] to facilitate their escape.” This broad view of the vehicle’s use	18
initially offers an obvious distinction from the facts of Haygood, because in	19
Haygood, the vehicle remained parked before, after, and during the attack. 2019-	20

12
NMCA-074, ¶ 2. In contrast, the Hernandez Defendants drove the vehicle before and	1
after the assault in the present case. Neither the stipulated facts, however, nor any	2
reasonable inference, indicates that the Hernandez Defendants anticipated any attack	3
as they used the uninsured vehicle to rob other vehicles, park in Mr. McKinley’s	4
driveway, or when they ran toward the vehicle and got inside. Nor does any intended	5
use of the vehicle to flee or protect property, under these circumstances, demonstrate	6
use of the vehicle to facilitate an attack against Mr. McKinley. Without evidence to	7
connect flight or protection of the stolen property to the attack, see Bell, 39 F. Supp.	8
3d at 1357-58, the reasonable inference is that the Hernandez Defendants’ attempt	9
at flight was interrupted by the attack on Mr. McKinley.	10
{16} 	Thus, if we take Plaintiff’s broad view of the stipulated facts, beginning with	11
driving into the neighborhood, no evidence suggests that at that time, the Hernandez	12
Defendants used the vehicle to facilitate the attack on Mr. McKinley, or commit	13
violence generally. See Miera, 2004-NMCA-059, ¶¶ 12-14 (considering a sequence	14
of facts to determine that the vehicle “amounted to little more than a holster on	15
wheels”). If we telescope in, and take a more and more narrow view of the events in	16
Mr. McKinley’s driveway and the Hernandez Defendants’ flight to the uninsured	17
vehicle, evidence that the Hernandez Defendants used the vehicle to facilitate the	18
attack on Mr. McKinley remains elusive. By this point, our view of the stipulated	19
facts has taken us inside the vehicle, with the Hernandez Defendants, Mr. McKinley,	20

13
and the weapon, with no evidence that the vehicle was started or moving. From here,	1
the stipulated facts in the present case and in Haygood bear a striking resemblance	2
to each other: a brutal attack that is situated in a vehicle. 2019-NMCA-074, ¶ 2. We	3
therefore take our direction from Haygood’s analysis to hold that the stipulated facts	4
in the record do not satisfy Britt. As a result, the circumstances in this case do not	5
trigger coverage under the policies at issue, because Mr. McKinley’s death did not	6
arise from the use of an uninsured vehicle as set forth in Britt and Haygood.	7
CONCLUSION	8
{17} 	We affirm the district court’s judgment dismissing Plaintiff’s claim for	9
UM/UIM coverage.	10
{18} 	IT IS SO ORDERED.	11
_______________________________	12
KATHERINE WRAY, Judge	13
WE CONCUR:	14
_________________________________	15
ZACHARY A. IVES, Judge	16
_________________________________	17
SHAMMARA H. HENDERSON, Judge	18