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Physical Contact Alone Does Not Necessarily Establish that an Injured Party was “Occupying” a Vehicle

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Lindsey E. Bosch
Foster Swift No-Fault E-News
June 7, 2012

The Michigan Court of Appeals recently released its published opinion in Westfield v Ken’s Service (Docket No. 300941), which clarifies the meaning of “occupying” a covered auto.  In Westfield, a driver sideswiped a tow truck and collided with the tow truck operator as he was outside of the vehicle, operating the vehicle’s control levers.  The tow truck operator claimed that the accident rendered him “crippled for life.”

The negligent driver’s insurance company tendered the full limits of its $100,000 policy to settle the claim.  The injured party sought additional compensation from the tow truck company’s insurance policy based on underinsured motorist coverage.  The endorsement regarding this coverage defined “insured” to include “[a]nyone [besides the named insured or a family member] ‘occupying’ a covered ‘auto’ . . . .”  According to the endorsement, “occupying” meant “in, upon, getting in, on, out or off.”  The insurance company argued that the injured party was not “occupying” the vehicle at the time of the accident.  The trial court agreed and explained that coverage depended on whether the insured’s actions were “the natural and probable result of being a driver or passenger.”  The court held that coverage did not exist because operating the vehicle as a tow truck was unrelated to being the driver or passenger of the truck.

The Court of Appeals affirmed.  It relied on Rednour v Hastings Mutual Ins Co, 468 Mich 241; 661 NW2d 562 (2003), a case that involved identical contractual language.  In Rednour, an oncoming vehicle injured the plaintiff as he was changing the vehicle’s tire and positioned six inches away from the vehicle at the time of impact.  Rednour held that physical contact alone did not “establish that a person was ‘upon’ a vehicle such that the person is ‘occupying’ the vehicle.”  Rather, the Court interpreted “upon” to mean “on or up on.”

Applying the Rednour analysis to Westfield, the Court of Appeals reasoned that “[a]t the time of impact, [the injured party] was not in the vehicle, nor was he getting in, on, out or off the vehicle.”  Because the injured party had been outside of the vehicle for “several minutes and was operating the levers of the tow truck, [he] was not ‘occupying’ the vehicle when he sustained bodily injury.”

The significance of this decision is the Court’s conclusion that “occupancy,” especially when occupancy includes being “upon” a vehicle, means something more than simple physical contact, even when the injured party is leaning against the vehicle for balance and support, as the tow truck operator was doing in this case.  The Court also considered a temporal element to occupancy, noting that the injured party had been outside of the vehicle for “several minutes” prior to being struck.  As this case involved an analysis of contract language, it is not likely to be applicable to the “occupancy” exception for parked vehicles and the payment of No-Fault PIP benefits (MCL 500.3016(1)(c)).