Does Uninsured-Motorist Coverage Pay for a Drive-By Shooting? A Dayton Court Says No

Published November 12, 2021 · Ohio Appeals Courts

On February 3, 2018, Joan McGuire was riding in the passenger seat of the family car on Third Street in Dayton, with her husband driving. Occupants of two other cars began shooting at each other. A stray bullet struck Mrs. McGuire in the head, causing serious injuries. Both cars fled, and no one in them was ever identified.

The McGuires did what many careful families would do. They turned to their own auto policy with Motorists Mutual, which included uninsured-motorist (UM) coverage, the coverage that is supposed to protect you when the person who hurt you cannot be found or has no insurance. The insurer denied the claim. On November 5, 2021, in McGuire v. Motorists Mut. Ins. Co., 2021-Ohio-3945, the Second District Court of Appeals agreed with the insurer.

This is a hard result for a family that did nothing wrong. It is also an important lesson about what UM coverage does, what it does not do, and where shooting victims can still look for help.

What the policy covered

Like most Ohio auto policies, the Motorists Mutual policy promised to pay damages an insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle. The policy's definition of an uninsured motor vehicle included a hit-and-run vehicle whose owner or operator cannot be identified and which hits, or causes bodily injury without hitting, the insured or the insured's vehicle. Critically, the policy required that the owner's or operator's liability "arise out of the ownership, maintenance or use" of that vehicle.

The McGuires argued that "use" is broad enough to include using a car to carry gunmen to the scene, shoot from it, and escape. The trial court in Montgomery County disagreed and granted summary judgment for the insurer.

Why the court said no

The Second District relied on two Supreme Court of Ohio decisions that have shaped this area of law for decades.

• In Kish v. Cent. Natl. Ins. Group of Omaha, 67 Ohio St.2d 41 (1981), a driver was shot and killed by the other motorist after a rear-end collision. The Supreme Court held that the shooting was an intervening cause unrelated to the use of the vehicle, so there was no UM coverage. The Court acknowledged that the result would have been different if the attacker had used his car, rather than a shotgun, as the weapon.
• In Howell v. Richardson, 45 Ohio St.3d 365 (1989), the Court applied the same reasoning to a shot fired from one vehicle into another, holding that injury from the discharge of a firearm is not covered by policy language limited to injuries resulting from the ownership, maintenance, or use of an automobile.

The Second District saw no meaningful difference between those cases and Mrs. McGuire's. It also pointed to its own 1999 decision denying coverage to a driver hit by a beer bottle thrown from another car. In each case, a projectile, not the vehicle, caused the injury. As the court put it: "Her injury arose out of the use of a firearm."

The court added a second reason. Under the policy, a hit-and-run vehicle had to hit the insured's car or cause injury without hitting it, as when a phantom driver forces you off the road. The shooters' car did neither; the gun did. The court distinguished the Supreme Court's decisions allowing UM claims in no-contact cases, where an unidentified driver swerves and causes a crash, because there the vehicle itself caused the harm. Our 2016 post on phantom-driver claims discusses those cases.

Where the line falls

Put plainly, Ohio courts ask what instrument caused the injury.

• The vehicle was the weapon: If another driver rams you, runs you off the road, or deliberately strikes you as a pedestrian, the injury arises from the use of a vehicle, and UM coverage can apply when that driver is uninsured or unidentified. We explained this in our post on road rage and intentional acts.
• A gun, a bottle, or a fist was the weapon: If someone in or near a car shoots, throws something, or assaults you, Ohio courts have generally held the injury does not arise from the use of the vehicle, even if the car brought the attacker to you.
• Gray areas exist. The McGuire opinion discusses appellate decisions finding coverage, or at least a question for a jury, where an assailant took over the victim's own car and used it during the crime. Facts matter, and policy language matters.

Other paths for a shooting victim

A UM denial is not the end of the road. Depending on the facts, injured people and families can look to:

• The shooter. If the shooter is identified, Ohio law lets crime victims sue for damages caused by a criminal act, even without a conviction. The shooter's homeowner's or other liability policy may need to be examined, though intentional-act exclusions are common.
• Ohio's crime victims compensation program. Under R.C. 2743.52(A), the Ohio Attorney General makes awards of reparations for economic loss arising from criminally injurious conduct, such as medical bills and lost wages, when the program's requirements are met. It has its own application rules and deadlines.
• A property owner. When a shooting happens in a parking lot, apartment complex, bar, or other business, the owner's security practices may support a negligent-security claim.
• Your other coverages. Health insurance, disability coverage, and other benefits under your own policies are each written differently. Our guide chapter on using your own insurance explains how they fit together.

What this means for you

McGuire is a binding decision for courts in the Dayton region, and it tells families the honest truth: uninsured-motorist coverage protects you against uninsured and hit-and-run drivers, not against every crime committed from a car. That makes UM coverage no less essential. It remains the main protection Dayton families have when a driver with no insurance, too little insurance, or no identity causes a crash, as our hit-and-run and uninsured drivers page explains. Review your declarations page, carry strong UM limits, and when something terrible happens that does not fit the policy, look at every other avenue before giving up. Our UM/UIM claims page covers how these claims work.