In a case involving competing declaratory actions by two insurers, the majority of a panel of judges of the US. Fifth Circuit Court of Appeals held that the facts supported a finding that the occurrence was “use of an auto” covered by an auto policy and reversed summary judgment from below on that basis. Nat’l Cas. Co. v. Western World Ins. Co., 2014 WL 128610 (5th Cir. Jan. 15, 2014) (per curiam).

EMTs were in the process of placing a patient in the load position on a gurney outside of the ambulance with one door open. While an EMT had one hand on the gurney and the other on the ambulance door, and while the gurney was still outside the ambulance with its wheels on the ground, the wheels apparently caught on something causing the gurney to tip over, dropping the patient to the ground causing injury. The majority found this to constitute “use” of the auto making it covered by the auto policy. The dissent pointed out that under Texas law, the vehicle must cause the injury and do something more than merely provide the location of injury in order to constitute “use” of the auto. However, the majority held that there were insufficient facts to determine if the “professional liability” exclusion on the auto policy would preclude coverage and remanded on that basis.