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Vol. 6, Iss. 5
May 17, 2017


Texting While Driving:

Court Says To Owners Coverage



Texting while driving is outrageously dangerously. And even more foolhardy when you consider the unimportant subject matter that people are risking life and limb to communicate. Even people who can agree on nothing, such as political foes or acrimonious opposing lawyers who could disagree on what day of the week it is, would surely at least find common ground on the texting while driving issue. While the statistics vary on the extent that texting while driving plays in motor vehicle accidents, they have one thing in common. It’s staggering.

A Vermont trial court’s recent decision is as unusual of a texting while driving coverage case as you’ll ever see. Richard Downey and Carl Pressman were both texting when Pressman rear-ended Downey. But here’s the even crazier part, they were texting each other. And they weren’t sending smiley face emojis.

Downey and Pressman had arrived at a four-way intersection in Burlington, Vermont at almost the exact time. Downey believed he got there first and made a left hand turn. However, Pressman was of the opinion that he had, and was outraged when Downey made the turn before Pressman could proceed straight. Pressman now turned and began to follow Downey.

Downey and Pressman actually knew each other. Their five year old sons had just been on the same t-ball team – the Polar Bears. And there had been bad blood between the fathers. Pressman believed that Downey’s son, Justin, cost the Polar Bears the league championship. The bases were loaded with one out in the bottom of the last inning with the Polar Bears holding a one run lead. An easy ground ball was hit to Justin at second base. But he had been opening a bag of M&Ms at the time and the ball went through his legs. He missed an easy double play opportunity and two runs scored. Squirrels 9. Polar Bears 8. Both teams got a trophy and ice cream. But only the Squirrels were allowed to get jimmies.

As Pressman proceeded to follow Downey’s vehicle he sent him a text – “Nice move back at that stop sign. You pay as much attention to driving as your kid does at second base.” Downey responded: “You are insane. It was t-ball. They are five years old.” Pressman back to Downey: “Make sure your kid knows in which direction to run on the football field this season.” Downey’s response: “You need help man.” And back and forth it went -- Pressman insulting Downey’s five year old son and Downey telling Pressman that he was pathetic.

After ten minutes of texting, with Pressman still following Downey, Downey stopped at a red light. Pressman, with his attention focused on his phone, plowed into the rear of Downey’s car. Downey was seriously injured. Needless to say, he couldn’t file suit fast enough.

Downey settled with Pressman’s insurer, Maple Syrup Mutual, for policy limits of $100,000. However, this was not adequate for the injuries sustained and Downey did not have a UIM policy. So Downey took an assignment of Pressman’s rights under Pressman’s homeowner’s policy with Maple Syrup Mutual. Needless to say, Maple Syrup denied liability coverage on the basis of the homeowner’s policy’s “Motor Vehicle” exclusion.

But here’s where it got interesting. Downey argued that coverage was not excluded because his injuries were not “arising out of” Pressman’s use of a motor vehicle, as stated in the exclusion, but, rather, Pressman being distracted by texting at the time of the accident.

And the court in Downey v. Maple Syrup Mutual, No. 16-823 (Vt. Super. Ct., Chittenden, April 28, 2017) agreed with Downey’s argument. And the court didn’t seem to think it was even a close call. The court relied on the Vermont’s doctrine of concurrent causation: “Under that doctrine, if the liability of an insured arises from concurrent but separate nonvehicle-related and vehicle-related negligent acts, and the nonvehicle-related act is an included risk under the insured’s homeowner’s policy, coverage exists even though the policy contains an automobile exclusion. In other words, if an occurrence is caused by a risk included within the policy, coverage may not be denied merely because a separate excluded risk was an additional cause of the accident.”

As the Downey court saw it, the texting, even foolishly and inappropriately – and this “takes the cake,” the court added -- was an occurrence (accident) under the Maple Syrup policy. Thus, because a “nonvehicle-related act was an included risk under [Downey’s] homeowner’s policy, coverage exist[ed] even though the policy contain[ed] an automobile exclusion.”

Maple Syrup Mutual is a sticky decision for homeowner’s insurers as texting plays a greater role in automobile accidents.

That’s my time. I’m Randy Spencer. Contact Randy Spencer at

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