In this declaratory judgment action involving underinsured motorist coverage, the insurer sought a summary judgment that it had no duty to indemnify the insured. This case is Westfield Insurance Company v. Ken's Service and Mark Robbins, 815 N.W.2d 786 (Mich. Ct. App. 2012).
Robbins, an employee of Ken's Service, a tow truck company, went to assist a police officer in removing his car from a ditch. When he arrived at the scene, Robbins got out of his tow truck and connected the tow cables to the police vehicle. While he was operating the control levers positioned on the side of the tow truck, another driver (See) sideswiped the tow truck and collided with Robbins. Robbins suffered substantial injuries.
The insurer for the driver paid its full $100,000 policy limits but Robbins sought additional compensation from Ken's Service's insurer, Westfield. The claim was based on underinsured motorist (UIM) coverage on the tow truck in the amount of $1,000,000. The policy agreed to pay UIM coverage for injury to an insured while occupying a covered auto; occupying was defined as "in, upon, getting in, on, out or off".
Westfield refused to pay the UIM claim based on its determination that Robbins was not occupying the vehicle at the time of the accident. The insurer filed a declaratory judgment action and the trial court ruled in favor of the insurer. This appeal followed.
The insured argued that Robbins was leaning on the tow truck for balance and support when See struck him and that this occurred while he was operating the towing controls. Therefore, the insured said, Robbins was occupying the insured vehicle since he was "upon" the tow truck. Westfield, argued that Robbins was not occupying the tow truck since he clearly had both feet on the ground and had been outside the truck for several minutes when he was hit and injured. The insurer said that term "upon" can only be properly interpreted in context of the word "occupying". And so, the insurer went on, Robbins' physical contact with the truck needed to be in the context of being physically inside the truck, that his actions were not in the context of being an occupant, and that he therefore was not insured under the policy.
The Court of Appeals noted that the parties in this instance focused on the word "upon" and the meaning of that word. The court said that the Michigan Supreme Court held in a previous case that a person did not need to be physically inside a vehicle to be "upon" it, but physical contact alone is insufficient to show that the person was upon the vehicle so as to be occupying the vehicle. Here, Robbins was not in the vehicle, nor was he getting in, out, on, or off the vehicle at the time of the accident. In fact, Robbins had been out of the vehicle for several minutes and was operating the levers of the tow truck. Therefore, in accordance with the views of the Michigan Supreme Court, the appeals court concluded that the trial court did not err in holding that Robbins was not occupying the vehicle when he sustained bodily injury.
The decision of the trial court was affirmed.
Editor's Note: When auto insurers provide coverage for insureds that are injured while "occupying" a covered auto, and then define that term to mean "in, upon, getting in, on, out, or off" the vehicle, the insurers might think the coverage situation is very clear; the basic idea is to link the injured person with an auto in some way. The problem arises, as in this case, when it is not clear that an insured is "in, upon, getting in, on, out, or off" a vehicle.
Robbins could reasonably claim that he was upon the vehicle because he was, in fact, leaning on the tow truck when he got hit. However, the trial court, the appeals court, and the state supreme court disagreed. It was determined by these courts that coverage really depends on a person's connectedness with the activity of being a driver or passenger of the vehicle; physical contact alone is insufficient to show that a person is upon a vehicle. Moreover, the dictionary definitions clarified to the courts that one must be on or up and on a vehicle in order to be upon it. Robbins' situation did not fit this description when he was injured and so, the insurer's rejection of coverage was affirmed.
Originally published March 19, 2012