If Ive got your attention, Ill get to the question:

“There is a police chase, where police units including a canine team are involved. The bad guy is in a stolen car. He leaps out of the car and starts running. The police release the dogs.

“Meanwhile a man [picture this poor guy] on the side of the road gets scared, seeing this abandoned car rolling toward him, along with a bad guy followed by snarling German Shepherds and cops with guns drawn. The bystander leaps onto our insureds vehicle, which is legally parked and unoccupied. The stolen vehicle rolls into the vehicle, causing the man to fall off and be injured.

Where does the man go for medical coverage?”

Whew. Dodged that bullet. I thought the question was going to involve the overall coverage situation. Like, are the cops liable for the bystanders injury? Can you sue city hall? Did the bad guy have either homeowners or auto coverage (although he sure didnt have a reasonable belief that he could use the stolen car, negating coverage there). Did the injury result from an intentional act?

However, the question is specific: Does the insurance of the parked car's owner pick up medical payment coverage for the injury to the scared bystander?

Med-pay insures reasonable expenses incurred for medical services because of bodily injury caused by an accident (this seems to qualify), and sustained by an insured. “Insured” is defined to include “any other person while 'occupying' (a defined term) your covered auto.” Occupying means “in, upon, getting in, on, out or off” the insured auto. Id say our innocent bystander qualifies here, also.

FC&S Managing Editor David Thamann fielded this question for our subscriber. His opinion is that “the person jumping on the insureds car certainly was an insured occupying the covered auto, since occupying is defined as upon or getting on the auto.”

But Mr. Thamann points out an exclusion in the med-pay coverage that may be relevant. “We do not provide Medical Payments coverage for any insured for bodily injurysustained while occupying a vehicle without a reasonable belief that the insured is entitled to do so”

So, the $64,000 dollar question here is: Did the innocent bystander have a reasonable belief that he was entitled to use or occupy the auto?

Actually, the bystander was probably trespassing by leaping on the car. And now the FC&S Answer is going to do something we usually dont do. Were going legal on you–as opposed to staying with insurance policy interpretation (and I make the usual disclaimer that I am not involved in rendering legal advice here; consult your attorney).

While the bystander was possibly a trespasser, he might have had a private right of self-defense, which would give him legitimacy to use the insureds car as a protection device.

At law, a person has the right to take reasonable steps to protect his life, even if that steps on some legal right of some other person. For example, a sailor can tie up in a severe storm to a dock that is marked “No Trespassing” as a method of saving his life and not be accountable for the trespass due to the self-defense defense. That person will be accountable for any damage to the owner, but he can withstand a trespass charge with the defense of necessary self-defense.

Id apply that theory here. The bystander had no other option in an emergency situation. And if he had no other coverage–then the med-pay portion of the car ownerss personal auto policy may well be an option. But if the bystander dented or scratched the car, hes on the hook for that damage.

Interesting. Since med-pay is not tied to liability on the part of the cars owner, but just to expenses arising out of an accident involving the car, it seems the innocent bystander can stand by the insureds med-pay coverage, absent an appropriate application of the “without a reasonable belief” exclusion.

Im not sure how it would go in court, but I wouldnt bet against the bystanders ability to recover.

Bruce Hillman, JD, is Editorial Director of Risk and Insurance Markets for the Professional Publishing Group of The National Underwriter Company, in Erlanger, Ky. Questions and comment are invited at [email protected].

Reproduced from National Underwriter Property & Casualty/Risk & Benefits Management Edition, July 29, 2002. Copyright 2002 by The National Underwriter Company in the serial publication. All rights reserved.Copyright in this article as an independent work may be held by the author.