GEICO General Insurance Company; Government Employees Insurance Company v. M.O.; Martin Brauner, also known as M.B.

United States Court of Appeals
For the Eighth Circuit
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No. 23-1686
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GEICO General Insurance Company; Government Employees Insurance Company
Plaintiffs - Appellees
v.
M.O.; Martin Brauner, also known as M.B.
Defendants - Appellants
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: June 12, 2024
Filed: August 2, 2024
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Before COLLOTON, Chief Judge, MELLOY and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
Martin Brauner gave M.O. anogenital human papillomavirus, more
commonly known as HPV, through sexual activity in Brauner’s GEICO-insured
automobile. M.O. threatened to sue Brauner and sent a demand letter to GEICO
requesting payment of the $1,000,000 policy limit. GEICO sought a declaration in

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federal court that M.O.’s claim was not covered under Brauner’s policy. The district
court1 agreed with GEICO. Brauner and M.O. appeal.
I.
Brauner and M.O. had an ongoing sexual relationship that included at least
one sexual encounter in Brauner’s automobile. A year after that encounter, M.O.
was diagnosed with HPV. M.O. threatened to sue Brauner, alleging that he had
negligently failed to inform M.O. that he was infected with HPV or to take adequate
steps to prevent M.O. from contracting HPV. M.O. also sent a demand letter to
GEICO requesting that it pay M.O. $1,000,000, the policy limit under Brauner’s
GEICO Kansas Family Automobile Insurance Policy, to settle M.O.’s claim against
Brauner. GEICO denied M.O.’s demand and filed a declaratory judgment action
against Brauner and M.O. in the United States District Court for the District of
Kansas, seeking a declaration that the policy did not cover M.O.’s injuries.
Meanwhile, Brauner and M.O. settled M.O.’s threatened lawsuit pursuant to
Mo. Rev. Stat. § 537.065. Their settlement included an agreement to arbitrate
M.O.’s negligence claim. “An agreement under [§ 537.065] expressly authorizes an
insured to settle a personal injury or wrongful death action by agreeing that the
plaintiff may collect the settlement only against the insurer.” Allstate Ins. Co. v.
Blount, 491 F.3d 903, 907 (8th Cir. 2007). Under the § 537.065 agreement, M.O.
agreed to collect only from GEICO if the arbitrator decided that Brauner was in fact
negligent in transmitting HPV to M.O. The arbitrator awarded $5,200,000 to M.O.
M.O. then sought and obtained confirmation of the arbitration award in Missouri
state court, but GEICO appealed, arguing that it had a right to intervene and contest
the award. The case made its way to the Supreme Court of Missouri, which vacated
the confirmation of M.O.’s arbitration award and remanded the case to allow GEICO
1 The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri.

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to intervene in the confirmation action. See M.O. v. GEICO Gen. Ins. Co., 657
S.W.3d 215, 216-17 (Mo. 2023).
While the parties were litigating in Missouri state court, the United States
District Court for the District of Kansas determined that it lacked personal
jurisdiction over M.O. because she was a Missouri resident with insufficient ties to
Kansas. In light of this ruling, GEICO, Brauner, and M.O. agreed to transfer the
case to the United States District Court for the Western District of Missouri. After
the transfer, GEICO filed a motion for summary judgment. The district court granted
the motion, finding that the policy unambiguously required covered bodily injury to
arise out of the use of the automobile and that sexual activity in an automobile is not
“using” an automobile under Kansas insurance law. Brauner and M.O. appeal.
II.
“We review a grant of summary judgment on an insurance policy
interpretation de novo, applying the same summary judgment standard as the district
court and using state law to determine coverage issues.” BITCO Gen. Ins. Corp. v.
Smith, 89 F.4th 643, 645 (8th Cir. 2023). We will affirm a grant of summary
judgment if there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). The parties agree
that Kansas law governs the interpretation of the policy, and “[t]his court is bound
by decisions of the highest state court when interpreting state law.” Progressive N.
Ins. Co. v. McDonough, 608 F.3d 388, 390 (8th Cir. 2010). “If the highest state court
has not decided an issue we must attempt to predict how the highest court would
resolve the issue, with decisions of intermediate state courts being persuasive
authority.” Id.
“Under Kansas law, an insurance policy constitutes a contract, and the
interpretation of a contract is a question of law.” BancInsure, Inc. v. FDIC, 796 F.3d
1226, 1233 (10th Cir. 2015). “The primary rule in interpreting written contracts is
to ascertain the intent of the parties.” Liggatt v. Emps. Mut. Cas., 46 P.3d 1120,

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1125 (Kan. 2002). “The test to be applied in determining the intention of the parties
to an insurance policy is not what the insurer intended the policy to mean, but what
a reasonable person in the position of the insured would understand it to mean.”
Fancher v. Carson-Campbell, Inc., 530 P.2d 1225, 1229 (Kan. 1975). “If the
language in an insurance policy is clear and unambiguous, it must be construed in
its plain, ordinary, and popular sense and according to the sense and meaning of the
terms used.” Marshall v. Kan. Med. Mut. Ins. Co., 73 P.3d 120, 130 (Kan. 2003).
“If the language is ambiguous, the construction most favorable to the insured must
prevail.” Brumley v. Lee, 963 P.2d 1224, 1226 (Kan. 1998). “To be ambiguous, a
contract must contain provisions or language of doubtful or conflicting meaning, as
gleaned from a natural and reasonable interpretation of its language.” Cath. Diocese
of Dodge City v. Raymer, 840 P.2d 456, 459 (Kan. 1992).
A.
Brauner and M.O. first argue that the plain language of GEICO’s Kansas
Family Automobile Insurance Policy either clearly covers a disease acquired through
sexual activity or is sufficiently ambiguous that we must construe the policy such
that it provides coverage. In relevant part, the policy states that GEICO:
[W]ill pay damages which an insured becomes legally obligated to pay
because of:
1. bodily injury, sustained by a person, and;
2. damage to or destruction of property, arising out of the ownership,
maintenance or use of the owned auto or a non-owned auto.
Brauner and M.O. read this sentence to mean that GEICO will pay 1) damages that
Brauner is “legally obligated to pay because of bodily injury sustained by a person”
and 2) damages that Brauner is “legally obligated to pay because of damage to or
destruction of property, arising out of the ownership, maintenance or use of the
owned auto or a non-owed auto.” To support this interpretation, Brauner and M.O.

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point to the line break and semicolon between the bodily-injury and property-
damage provisions. Under the punctuation and last-antecedent canons of
construction, “placement of punctuation is presumed to have meaning,” Miami Cnty.
Bd. of Comm’rs v. Kanza Rail-Trails Conservancy, Inc., 255 P.3d 1186, 1215 (Kan.
2011) (Leben, J., concurring), and “[r]eferential and qualifying words and phrases,
where no contrary intention appears, refer solely to the last antecedent,” Taylor v.
Perdition Mins. Grp., Ltd., 766 P.2d 805, 810 (Kan. 1988). Both canons support
Brauner and M.O.’s interpretation that the “arising out of the ownership,
maintenance or use of the owned auto or a non-owned auto” qualifier applies only
to the property clause of the sentence, not the bodily injury clause. Thus, on their
reading, the policy does not require covered bodily injury to “aris[e] out of the
ownership, maintenance, or use” of Brauner’s automobile.
However, under Kansas law, we “determin[e] the intention of the parties to an
insurance policy” by considering “what a reasonable person in the position of the
insured would understand [the policy] to mean.” Fancher, 530 P.2d at 1229. And
“when interpreting a contract or statute, we derive meaning not just from abstract
words in isolation, but from their context and from the document as a whole.”
Payless Shoesource Inc. v. Travelers Companies Inc., 585 F.3d 1366, 1374 (10th
Cir. 2009) (applying Kansas law); see also Golden Rule Oil Co. v. Liebst, 109 P.2d
95, 97 (1941) (“It is not a fair interpretation of any document, letter, contract, or
whatnot, to excise from its context a single sentence, statement or paragraph, and
give it controlling significance while ignoring the other recitals of the instrument.”).
This principle casts doubt on Brauner and M.O.’s assertion that “a reasonably
prudent insured would . . . read the language [quoted above] in isolation” and
conclude that, in purchasing automobile insurance, he has also purchased insurance
covering any bodily injury for which he becomes liable.
The Supreme Court considered a remarkably similar case of “less-than-
meticulous drafting” in United States v. Hayes, 555 U.S. 415, 423 (2009). The
criminal statute at issue in Hayes provided that:

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[T]he term “misdemeanor crime of domestic violence” means an
offense that—
(i) is a misdemeanor under Federal, State, or Tribal law; and
(ii) has, as an element, the use or attempted use of physical force, or the
threatened use of a deadly weapon, committed by [a person in a
domestic relationship with the victim].
Id. at 420-21 (quoting 18 U.S.C. § 921(a)(33)(A)). The question confronted by the
Supreme Court was whether the “committed by” provision modified both clauses (i)
and (ii) or whether it modified only clause (ii)—the same interpretive question
before us here. In Hayes, the court of appeals had held that the “committed by”
provision modified only clause (ii), endorsing a theory similar to the one advanced
by Brauner and M.O. and for the same reasons: “clause (ii) is separated from clause
(i) by a line break and a semicolon; in contrast, the components of clause (ii)—force
and domestic relationship—are joined in an unbroken word flow,” id. at 423, and
under “the ‘rule of the last antecedent,’ . . . a limiting clause or phrase should
ordinarily be read as modifying only the noun or phrase that it immediately follows,”
id. at 425. But the Supreme Court disagreed, concluding that the awkward phrasing
of the clause was “not significant in view of the unnatural reading that would result”
from interpreting “misdemeanor crime of domestic violence” not to require a
domestic relationship as an element. Id. at 424. The Supreme Court explained that
“[t]he rule of the last antecedent . . . is not an absolute and can assuredly be overcome
by other indicia of meaning.” Id. at 425. Such indicia include the series-qualifier
canon, which holds that “when there is a straightforward, parallel construction that
involves all nouns or verbs in a series, a modifier at the end of the list normally
applies to the entire series.” Facebook, Inc. v. Duguid, 592 U.S. 395, 402 (2021)
(internal quotation marks omitted).
When we view the policy at issue through the lens of “what a reasonable
person in the position of the insured would understand [the policy] to mean,”
Fancher, 530 P.2d at 1229, we conclude that the “arising out of” clause
unambiguously modifies both the “bodily injury” and “property damage” clauses.

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As in Hayes, Brauner and M.O.’s proffered interpretation of the sentence would
result in an “unnatural reading” of the policy. The series-qualifier canon, which
“generally reflects the most natural reading of a sentence,” Facebook, 592 U.S. at
403, suggests that the “arising out of” language applies to bodily injury. “Imagine
if a teacher announced that ‘students must not complete or check any homework to
be turned in for a grade, using online homework-help websites.’ It would be strange
to read that rule as prohibiting students from completing homework altogether, with
or without online support.” Id. That sort of “strange” argument is exactly what
Brauner and M.O. urge us to adopt here: that GEICO’s auto insurance policy requires
property damage to arise out of the ownership, maintenance, or use of an automobile,
but also provides coverage for any bodily injury the insured causes—with or without
an automobile. Perhaps recognizing the absurdity of such an outcome, Brauner and
M.O. argue that a claim still must “involve either an owned auto or non-owned auto,”
or have some unspecified “connection to a vehicle.” Yet this argument is similarly
unavailing, nonsensically suggesting that the policy requires an automobile to be
present at the scene of, but otherwise wholly unrelated to, a suffered bodily injury.
“[A] reasonable person in the position of the insured,” Fancher, 530 P.2d at
1229, would “derive meaning not just from abstract words in isolation, but from their
context and from the document as a whole,” Payless Shoesource, 585 F.3d at 1374,
and would not believe that his automobile insurance covers any bodily injury for
which he becomes liable. Thus, “[d]espite the awkward language . . . no reasonably
prudent insured would read the provisions in the manner suggested” by Brauner and
M.O. Universal Underwriters Ins. Co. v. Hill, 955 P.2d 1333, 1338 (Kan. Ct. App.
1998). To be covered under the policy, “bodily injury, sustained by a person” must
“aris[e] out of the ownership, maintenance or use of the owned auto or a non-owned
auto.”
B.
Brauner and M.O. alternatively argue that M.O.’s injuries are covered under
the policy because they in fact arose “out of the ownership, maintenance or use of

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the owned auto.” Their argument relies heavily on Garrison v. State Farm Mut.
Auto. Ins. Co., a case in which the Supreme Court of Kansas held that a leg injury
caused by the accidental firing of a shotgun as it was taken from an automobile
during a hunting trip arose “out of the ownership, maintenance, or use of a motor
vehicle.” 907 P.2d 891, 894 (Kan. 1995).
Garrison holds that “for insurance coverage to exist for accidental bodily
injury, there is no requirement that the vehicle be either the proximate cause of the
injury or physically contribute to” the immediate cause of the injury. Id. at 895.
“Coverage exists where the minimal causal connection between the use of the
vehicle and the injury is provided by the foreseeable and reasonable use of the
vehicle . . . .” Id. Brauner and M.O. argue that sexual activity in an automobile is
just as foreseeable and reasonable as using an automobile for a hunting trip, so the
logic of Garrison compels reversal.
Yet Garrison reiterates that “Kansas follows the majority rule that there must
be some causal connection between the use of the insured vehicle and the injury.”
Id. (citing with approval Hamidian v. State Farm Fire & Cas. Co., 833 P.2d 1007,
1010-11 (Kan. 1992) and Farm Bureau Ins. Co. v. Evans, 637 P.2d 491, 494 (Kan.
Ct. App. 1981)). “[M]erely because a motor vehicle is the situs of an injury” does
not mean that “the injury . . . necessarily arise[s] out of the use of the motor vehicle.”
Id. at 896; see Hamidian, 833 P.2d at 1012. As stated in Hamidian, “[t]he ownership,
use, or maintenance of the vehicle must have a greater nexus to the injury than just
relating to a party being in the wrong place at the wrong time.” 833 P.2d at 1013.
And even if a “vehicle was being ‘used’ within the meaning of the coverage clause
because of its use as a shelter,” that “is not sufficient to trigger coverage” if “that use
is so remote from the negligent act that it can be said there was no causal relationship
between the use of the car and the injuries sustained.” Evans, 637 P.2d at 493.
Garrison distinguished Hamidian and Evans on the grounds that the
automobile in Garrison “was more than the ‘situs of injury’” because it “was being
used to transport” the hunters and their guns, when the accident occurred “the engine

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was running,” and the plaintiff “was driving” and “had intended to drive further.”
907 P.2d at 896. Unlike Garrison, the record does not reflect that at the time M.O.
contracted HPV Brauner’s automobile was being used to transport anyone, was
being driven, or that the engine was running. See Expl. Place, Inc. v. Midwest
Drywall Co., 89 P.3d 536, 541 (Kan. 2004) (“Generally, the burden is on the insured
to prove that a loss falls within the scope of an insurance policy.”). Even if we
assume that using an automobile as a shelter counts as “use” within the meaning of
the insurance policy so as to trigger coverage, such use cannot be “so remote from
the negligent act that it can be said there was no causal relationship between the use
of the car and the injuries sustained.” Evans, 637 P.2d at 493. The negligent act
here was Brauner’s failure to tell M.O. that he had HPV or to take steps to prevent
its transmission to M.O. The most relevant analogy is thus not to Garrison but to
Evans, in which the use of a vehicle as a shelter in the rain to light a firecracker
which subsequently injured another was not covered under the policy because one
just as easily could have “held the device under the car or stood on the ‘leeward’
side of it to light the device.” Id. at 494. No causal relationship exists between
Brauner and M.O.’s decision to shelter in an automobile for a sexual encounter as
opposed to choosing to shelter in a house, or not shelter at all, and Brauner’s
transmission of HPV to M.O. Brauner’s automobile was nothing more than the situs
of M.O.’s injury. Thus, it cannot be said that Brauner’s negligent transmission of
HPV to M.O. arose out of the use of the automobile.
III.
The insurance policy unambiguously covers only bodily injury arising out of
the ownership, maintenance, or use of Brauner’s automobile. Because M.O.’s
injuries did not “aris[e] out of the . . . use” of Brauner’s automobile, the district court
did not err in granting summary judgment to GEICO. We affirm.
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