A subrogation claim resulting from an automotive accident comes across your desk. It is clear the tortfeasor has liability – they literally ran the insured off the road, got out of their car, and physically assaulted them. Slam dunk case, right? Actually, no; not at all. More often than not, road rage ruins viable subrogation claims by introducing evidentiary, legal, and contractual complications. As usual, nothing in insurance subrogation is cut and dry, even when fault is clear.
Rathbone Group subrogation attorneys Rebecca Wright and Steve Alsip unpack the rules of road rage as it applies to insurance claims and settling a subrogation case in a recent podcast episode of On Subrogation: Road Rage. Here, we’ll review some of the subrogation cases they’ve dealt with where someone’s anger ended up complicating what should have been a straight shot to subrogation recovery.
Defining Road Rage in a Legal Context
The National Highway Transportation Safety Administration defines road rage as “an intentional assault by a driver or passenger with a motor vehicle or a weapon that occurs on the roadway or is precipitated by an incident on the roadway.” This is distinct from aggressive driving, though aggressive driving is almost always how road rage incidents begin. This may start from one driver brake checking another, cutting them off, tailgating, honking excessively, or any other number of actions another driver may find distressing, dangerous, rude, or enraging.
Road rage is a rising factor in subrogation cases because angry encounters on the road have become more common since the pandemic. According to the Pew Research Center, in 2024, 49% of Americans said people in their area drive more dangerously than they did before the pandemic while only 9% felt people drove more safely post-2020. Interestingly, while fewer collisions occurred during the pandemic – natural result of less cars being on the roads – the collisions that did occur resulted in higher levels of damage. This is likely because people were stressed, which leads to faster, less careful, more emotionally reactive driving. Post-pandemic, we’re back to the same numbers of cars on the road but the accidents are still more serious, indicating many people are still driving with that heightened level of stress. States are responding to this dangerous uptick in aggressive driving in different ways, with many moving towards criminalizing road rage offenses.
When arguing a subrogation claim involving road rage, intentionality plays a crucial role in deciding how to pursue a tortfeasor. Road rage acts often lead to action for battery or a reckless act, and can involve an action for negligence as well. But these causes of action are not interchangeable. Assaulting someone with a car, such as purposefully sideswiping them, amounts to criminal behavior with intent. However, negligence and recklessness are different because, while they can also amount to criminal behavior, they do not require intent.
Battery vs Negligence: Collateral Damage in Hendricks v. Burns
A 2012 case out of Maryland illustrates this distinction between intentional harm (battery) vs reckless harm (negligence). In this case, Marjorie Hendricks was injured by Charles Burns after he ran through a red light at a high speed. Burns was traveling south on Bel Air Road with a red light in his direction. At least one other car was stopped at the light.
Burns, however, doesn’t stop and drives right through the intersection, where he T-bones Hendricks, who was traveling east on Glen Park Road with a green light in her direction. Hendricks’ car spins, nearly colliding head-on with another driver. Burns, who was intoxicated at the time, initially flees the scene but then walks back. He is taken into custody on several charges, including reckless driving and driving while impaired. He was eventually found guilty on both of those charges.
In this case, there was an independent witness that claimed that, at the time he ran the red light, Burns was already engaged in road rage behavior with another driver. The witness reported he was driving aggressively: weaving between lanes in tight spots with other cars, tailgating, and generally driving erratically. At a stoplight, he had actually exited his car and approached the other driver’s car, but no damages arose from that action. Shortly thereafter, as that other driver sped away, Burns tried to catch up, which is why he ran through the red light and ended up crashing into Hendricks.
Hendricks takes Burns to court with an action of battery, to which Burns requests a summary judgment showing he had no intent to cause Hendricks harm. He did not dispute the facts of the case: he admitted he acted negligently and recklessly, he was drunk, he ran the red light and struck Hendricks with his car. However, he argued, there was no battery because he did not intend to harm Hendricks. Intentionality is the key to proving battery, and since Hendricks was not the target of Burns’ road rage, the court granted his summary judgment motion.
Hendricks then files two negligence lawsuits: one against Burns for reckless driving and one against his wife for negligently entrusting her vehicle to him even though he had a known history of drunk driving. Both conceded liability under the negligence action. When the case went to trial, the jury awarded Burns the full amount of negligence damages, however, granted no punitive damages because there was no battery. Despite the $85,000 she was awarded, Hendricks continued to appeal the decision, but to no avail.
Though the outcome of this case may seem unfair to Ms. Hendricks, the court’s decision adhered to the legal distinction between battery and recklessness: intentionality. Burns did intend to harm someone, but that someone wasn’t Hendricks; she was sort of a third-party victim, so their altercation did not fit the charge of battery. Had Burns’ victim been the driver he had brake checked and was pursuing when he ran the red light, that would have been a intent.
Assault vs Recklessness: Proximate Cause(s) in Byrne v Mowad
Another case, this time out of Pennsylvania, involved an estate suing a tortfeasor after an accident ended in the deaths of the two people in the victim’s car. Kimberly Byrne was a passenger in a car driven by Michael Mowad in a car accident that killed them both; the defendant in this case was Florie Tolino.
At the time of the accident, Byrne and Mowad were fleeing a party; there had been underage drinking and the police showed up. Mowad was driving with a BAC of .2, nearly 3 times over the legal limit of .08, so he was highly intoxicated. While fleeing, Mowad side swiped another car, driven by defendant Florie Tolino. Mowad did not stop, instead choosing to flee the scene. Tolino then turned his vehicle around and pursued Mowad at high speed; reports indicate he was going over 60mph in a 35mph zone. Mowad sped up to avoid Tolino and ended up flipping the car, which ended up killing both Byrne and Mowad.
There are a few things at play in this case. Tolino may have turned around and pursued with intent to cause harm, but a fact finder could just as easily argue he did so in order to get the license plate number or prevent Mowad from causing further harm to others. And in this case, Mowad was driving recklessly and under the influence of alcohol. Because of those factors, Tolino filed a motion for a summary judgment that he was not the cause of the accident.
This meant the court now had to decide if it had merits to go to trial via the substantial factors test. This required the court to weigh (a) the number of factors that contributed to the harm, (b) the extent of the effect each factor had on the eventual outcome, (c) if Tolino’s conduct created a series of events in continuous operation up to the time of the harm, or (d) if Tolino only created a situation that was harmless until acted upon by other forces, in this case Mowad’s reckless driving, that Tolino could not be held responsible for.
The court acknowledged there were other factors that contributed to the accident, primarily the fact that Mowad was intoxicated. However, they found the proximity of Tolino’s negligent actions and the accident made him part of the causal chain of events. The court did not find fault with Tolino turning his vehicle around after he was sideswiped by Mowad. They did find fault with Tolino’s choice to chase Mowad at unsafe speeds at an unsafe distance even when it became apparent to Tolino Mowad was simply trying to flee, not cause further harm.
The court determined Tolino’s actions amounted to road rage; he created an unreasonable risk of danger to others, and it would be reasonable for a jury weighing the facts might conclude his behavior was the proximal cause of the accident and subsequent death of Byrne. Tolino’s summary judgment was denied. However, this does not mean a trial would be a slam dunk for Byrne’s estate. Mowad was a drunk driver who caused a collision and fled the scene, which the defense could use in their favor. But even if the plaintiff fails to prove intentionality, they still have a strong case for a negligence claim of reckless driving.
Subrogating Road Rage: Is an Insurer Liable for Their Enraged Insured?
How do these sorts of cases play out once they get to the subrogation phase? Does a carrier have to cover their insured even when the actions that caused the damage are reckless, unhinged, and intentional? Much like the Maryland case where Hendricks was collateral damage in a road rage incident, the answer lies in the legal language as opposed to feelings of fairness.
One reason coverage may not apply is because, in many auto insurance policies, coverage is limited only to damage that arises from the use of the vehicle. Many times, road rage injuries and even deaths occur outside of the vehicle; people get worked up, find a place to pull over, exit their cars, and come to blows. Many courts have ruled that leaving the vehicle is considered a break in the chain of causation.
The Location of an Assault Controls Whether Coverage Applies
A case that illustrates this issue is National Casualty Insurance Company v American Safety Casualty Company, which was heard by a federal court in New York. This case involved multiple commercial insurance policies as well as factors arising from incidents caused in the course of employment.
Joel Lopez, the defendant in this case, was an employee of City Waste, driving a company vehicle at the time of the incident. Lopez cut off plaintiff Hector Salva while driving on Major Deacon Expressway. After Lopez cut Salva off, both drivers took the next exit, drove to the Bronx, stopped in a parking lot, exited their vehicles and began yelling at each other. Lopez ended up hitting Salva with a metal pole, resulting in severe injury to Salva.
City Waste was covered by an auto insurance policy from NCIC and commercial general liability policy from American Safety Insurance. ASI denied coverage and filed a motion to dismiss under policy exclusions for intentional unlawful acts. The intent was inarguable; you can’t accidentally beat someone with a metal pole. NCIC’s liability coverage in City Waste’s policy states it would pay all property and personal injury damages caused by an accident and resulting from the ownership, maintenance, or use of a covered vehicle.
Unsurprisingly, NCIC denied coverage, citing the assault resulting in Salva’s injuries did not arise from the use of the vehicle. City Waste appealed, but the courts agreed that, under the policy language, NCIC had no obligation to City Waste in this case. Both men had exited their vehicles, and Lopez’ vehicle was not a tool or factor in the assault, so NCIC is not required to provide a defense.
The Intentionality of an Incident Limits Whether Coverage Applies
A piece of the language in these policies is that coverage only applies if the incident arises from an accident, which is defined as an unusual, unexpected, or unforeseen happening, or a loss that happens without designed intent or obvious motivation. So much like battery vs negligence, a carrier must prove intent in order to deny coverage, as intentional unlawful acts, as we saw in NCIC v. ASCC, are excluded.
This issue played out in USAA v Speed, an insurance dispute out of Washington State. Dennis Geyer and defendant Robert Speed were involved in a road rage altercation where Geyer became angry about something Speed did while driving in front of him. Geyer pulled alongside Speed and signaled for him to pull over. Speed became afraid so took the next exit.
Geyer exited as well and followed Speed for a long time until both are caught at a traffic light, where Geyer exited his vehicle, opened the door to Speed’s car, and beat him with both fists and a metal thermos while dragging Speed out of his car. Geyer then left Speed bleeding and unconscious in the middle of the road, returned to his vehicle, and fled the scene. Geyer was later arrested, charged, and convicted on 3rd degree assault in criminal court. Speed’s attorney then sent a demand letter to Geyer for $650,000 in compensation. In exchange, Speed’s attorney would recommend Geyer be allowed to plead guilty to a misdemeanor assault charge.
At the time of the assault, Geyer was insured by USAA; he carried a homeowners’ policy as well as an auto policy. Geyer notified USAA of the incident, the accusations against him, and the letter he received from Speed’s attorney. A USAA claims adjuster interviewed him shortly after and informed Geyer it was all likely excluded from coverage under both policies and that there would be an insurance investigation to determine whether coverage applied.
With regard to the auto policy, the facts point to the incident as not arising from use, ownership, or maintenance of the vehicle, and the intentional acts exclusion may also apply. USAA decided not to provide Geyer with a defense but did launch a liability and coverage investigation into Speed’s claims. After Geyer was convicted in criminal court, Speed offered to release Geyer from all claims if USAA would agree to pay his combined policy limits under both policies, which totaled $800,000.
USAA then consulted an attorney who advised they had no obligation to defend or pay Speed’s claim but that it would be safest if they were to provide a defense under a reservation of rights. However, they did make Speed a nuisance settlement offer, which he rejected. Geyer and Speed later agreed to a $1.4 million settlement in exchange for Speed not to execute the judgment against Geyer’s assets. Part of the settlement also included that Geyer transfer all breach of contract and bad faith claims against USAA to Speed so that Speed could then pursue USAA for failing to reimburse him under Geyer’s policies.
The issue the courts had to decide was whether USAA had a duty to defend. In Washington State, duty to defend is triggered when a complaint is filed against the insured, which includes that initial demand letter. However, duty to defend is based on the allegations in the letter; duty is only triggered if the facts are aligned with policy coverage. Under either policy, the facts in the letter were not considered an accident but unambiguously intentional. The court found that USAA had no duty to defend Geyer.
Anger Makes Automotive Insurance Subrogation Ambiguous
For an overview of several additional case studies demonstrating the complexities introduced in a subrogation claim when someone goes berserk, listen to Rebecca and Steve’s full discussion. But the ones we have covered in this article hopefully establish why subrogation strategy is key from the outset of a claim. The insurance investigation is all-important, and so is policy language.
A subrogating carrier handling a case that may involve road rage must consider intentionality, criminality, location, and tortfeasor coverage in their decision of if, when, and how to pursue recovery from the at-fault party. And as we saw throughout these cases, the court’s discretion plays into every decision, as do the statutes and general social climate of the state in which the subrogation claim is brought. The value of retaining a law firm with dedicated subrogation department cannot be understated for automotive carriers, especially given the upward trend in aggressive driving and deaths caused by road rage. For more in-depth discussions on important topics in subrogation, visit Rathbone Group’s podcast library. Rather read about attorney stories from the subrogation industry? Check out our Subrogation Blog. Or if you’re a visual learner, you can find our On Subrogation series at out YouTube channel, where we unpack complicated subjects in short, digestible presentations. And for more information on RG’s subrogation services and insurer rights advocacy, inquire at info@rathbonegroup.com.