For UM policies that require the uninsured or underinsured owners’ or operators’ liability for damages caused by an accident to “arise out of the ownership, maintenance, or use of the uninsured motor vehicle,” the Courts are required to answer two separate questions:
1. Was the conduct of the uninsured of which the plaintiff complains a legal cause of the injury?
2. Was it a use of the automobile?
Carter v. City Parish Government, 423 So.2d 1080 (La.1982).
The preeminent Louisiana commentators on the subject suggest the following analysis:
Using the duty/risk analysis, it must be determined whether the insured’s conduct of which the plaintiff complains is a legal cause of the accident. If so, then it must be determined whether the insured’s conduct arose out of the “use” of an automobile. In order for the insured’s conduct to arise out of “use,” the automobile must be essential to the theory of liability being asserted against the insured. The specific duty breached by the insured must flow from “use” of the automobile. If the specific duty breached by the insured existed independently of the “use” of the automobile, then liability does not arise out of “use” even though the insured’s duty could have been performed by use of an automobile. In the final analysis, common sense must be utilized in making the determination of whether “use” of the automobile is an essential ingredient of the duty breached by the insured. McKenzie & Johnson, 15 La. Civil Law Treatise, Insurance Law and Practice, 3d.