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Alese C. Mills was stopped at a traffic light on Sherman Avenue in New Haven, Conn., late on the night of Sept. 5, 1997 when a maroon car entered the intersection from the opposite lane. Suddenly, bullets started to fly, striking Mills, 68, in the forearm and abdomen and damaging her mini van. The unidentified shooter got away. Mills, who’s never been convicted of any crime, thinks the incident was a case of mistaken identity or a random act. But her insurance company, Colonial Penn Insurance, contended that this was no accident — certainly no auto accident — and refused to pay under her uninsured motorists’ claim. In the insurance policy, the key provision referred to “accident,” not “auto accident,” wrote New Haven Superior Court Judge Jon C. Blue, reasoning that the coverage was not limited to auto accidents. “Accident” was not defined in the policy, and Blue held that the term must be construed in “its plain and ordinary manner as it would be understood by the average person reading the policy.” The ever-scholarly Blue reached back over 130 years of caselaw to side with courts finding an expansive view of the term “accident” in insurance cases. In 1870, a man named Ripley, who bought a policy covering death “by any accident while traveling,” was fatally beaten by robbers while walking between two towns in Michigan. Ripley v. Railroad Passengers Assur. Co. ruminated, “[p]erhaps in a strict sense, any event which is brought about by the design of any person is not an accident.” But from Ripley’s perspective, the event was unplanned and unexpected, and would be considered an accident, the court held. A strange 1998 case from Oregon, in which a driver killed a passenger while intentionally wrecking his truck for the insurance, likewise concluded that the passenger bought his own policy expecting protection against “being intentionally injured by an uninsured motorist.” WHAT’S ‘THE USE’? Beyond defining “accident,” a second question was whether Mills’ injury arose from the “use of the uninsured motor vehicle.” No Connecticut court has ruled whether a drive-by shooting arises out of the use of a vehicle, for purposes of uninsured motorist coverage. Blue declined to construe the phrase as meaning that the vehicle was the proximate cause of the accident — only that its use was a part of the cause. He quoted a factually similar New Jersey Supreme Court case, Lindstrom v. Hanover, which explained why a vehicle was integral to the act: More than just providing a setting and enhanced opportunity for the shooting, the vehicle also furnished anonymity and a means of escape, the court observed, concluding that the shooter “would not have committed such an act of apparently random violence without the use of a car.” Mills was represented by Michael S. Hillis, of New Haven’s Dombroski, Knapsack & Hillis. Colonial Penn was represented by Anthony Nuzzo Jr., of Cheshire’s Nuzzo & Roberts. Neither attorney had returned calls for comment by press time.

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