Can an injured pedestrian recover under a driver's UIM policy?
Most underinsured motorist claims involve two or more vehicles, not pedestrians. See how the Delaware Supreme Court ruled in this case.
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Most states require auto owners to carry additional insurance in case the other party’s policy doesn’t completely cover the loss. The coverage assumes that the parties to the accident are motor vehicles, but occasionally, a pedestrian is struck by a car. Can that pedestrian recover under the driver’s underinsured motorist policy?
The case
Fredia Brinkley allegedly hit Donald R. Johnson with her vehicle while Johnson was crossing the street on foot. He struck the hood of the vehicle and rolled off, landing on the road.
At the time of the accident, Brinkley was insured by State Farm Mutual Automobile Insurance Company. State Farm paid Johnson the policy limit for Ms. Brinkley’s liability coverage.
Johnson also sought UIM on the theory that he was an insured under Brinkley’s State Farm policy, but State Farm denied that coverage.
Johnson then sued State Farm.
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The trial court granted summary judgment in favor of State Farm, and the case reached the Delaware Supreme Court.
There, Johnson argued that the trial court had erred when it found he did not qualify as an “insured” under the State Farm policy. He contended that he qualified as an insured under the plain language of the State Farm policy because he had been occupying Brinkley’s vehicle by way of the physical contact he made when getting struck by the vehicle and being on the vehicle’s hood.
The State Farm policy provided underinsured coverage for persons insured under the policy, including a person occupying the name insured’s car. It defined occupying as “in, on, entering, or exiting” the vehicle.
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The Delaware Supreme Court’s decision
The Delaware Supreme Court affirmed the ruling in favor of State Farm. In its decision, the court explained that, under its two-prong test to determine whether a person was an “occupant” of a vehicle, a claimant must either be “within a reasonable geographic perimeter of an insured vehicle or engaged in a task related to the operation of a vehicle at the time injuries are sustained.”
To be within a reasonable geographic perimeter, the court continued, a claimant had to be “in, entering, exiting, touching or within reach of the covered vehicle.”
The court then stated that the “geographic perimeter” test “was never meant to apply to a pedestrian” struck by a vehicle.
The court acknowledged that Johnson might have been “on” or “touching” Brinkley’s vehicle “for a brief second when he was hit,” but it ruled that there was no case law or persuasive authority that warranted extending UIM insurance to pedestrians.
Brinkley, the court said, carried UIM insurance to protect herself as named insured, her “resident relatives,” and “any other person … occupying” her vehicle “within the scope of [her] consent” from harm caused by unknown persons causing harm, “not pedestrians injured by her own negligence.”
The “mere fact” that Johnson was in physical contact with Brinkley’s vehicle because he was struck by it did “not make him an insured occupant of the vehicle able to claim benefits” under her personal UIM coverage, the court concluded.
The case is Johnson v. State Farm Mutual Auto. Ins. Co. [No. 450, 2017 (Del. June 27, 2018)].
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Steven A. Meyerowitz, Esq., (smeyerowitz@meyerowitzcommunications.com) is director of FC&S Legal, editor-in-chief of Insurance Coverage Law Report, and founder and president of Meyerowitz Communications Inc.