Genthner v. Progressive Cas. Ins. Co.

• Decision Date: 22 August 1996
• Docket Number: Docket No. L,No. 7776,7776
• Citation: 681 A.2d 479
• Parties: Stephen GENTHNER v. PROGRESSIVE CASUALTY INSURANCE COMPANY. DecisionLawin 95 450.
• Court: Maine Supreme Court

Page 479

681 A.2d 479

Stephen GENTHNER v. PROGRESSIVE CASUALTY INSURANCE COMPANY.

Decision No. 7776.

Law Docket No. Lin 95 450.

Supreme Judicial Court of Maine.

Submitted on Briefs Feb. 14, 1996.

Decided Aug. 22, 1996.

Michael J. Welch, Stephen Kottler, Hardy Wolf & Downing, P.A., Lewiston, for Plaintiff.

Victoria Powers, Erler & Powers, South Portland, for Defendant.

Before WATHEN, C.J., and GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.

WATHEN, Chief Justice.

Plaintiff Stephen Genthner appeals from a summary judgment entered in the Superior Court (Lincoln County, Marsano, J.) denying his claim against defendant Progressive Casualty Insurance Company (Progressive) for injuries caused by an uninsured motorist. Genthner argues on appeal that the Superior Court erred as a matter of law in applying the language of Progressive's policy to the stipulated facts. We agree, and we vacate the judgment.

Genthner, a passenger in a vehicle insured by Progressive, was struck by a vehicle driven by a hit-and-run motorist immediately after a collision between the vehicle operated by that motorist and the insured vehicle. Genthner sought compensation for his injuries from Progressive. Progressive denied uninsured motorist coverage on the basis that the policy covers a passenger only while "occupying" the vehicle. Genthner commenced the present action. The parties moved for summary judgment and submitted the case on a joint statement of material facts together with a copy of the insurance policy. The stipulated facts may be summarized as follows:

On the night of September 24, 1993, plaintiff Stephen Genthner was a passenger in William F. Conroy, Jr.'s station wagon, along with two other passengers. Conroy's station wagon was insured by Progressive for damages caused by an uninsured motorist. At approximately 12:45 a.m., as Conroy was driving the station wagon on a secondary road in Falmouth, it was rear-ended by a pickup truck. After impact, the truck continued to push the station wagon, and the bumpers locked together. Using evasive maneuvers, Conroy was able to unhook the bumpers. He pulled ahead and stopped on the right side of the road after crossing a bridge. No one was injured. Conroy got out of his car to inspect for damage. The truck stopped on the bridge, and the driver remained in the truck. Conroy could not see the truck's license plate. Genthner and the other two passengers got out of the car. Conroy and Genthner both approached the truck for the purpose of obtaining its license plate number. Conroy and Genthner walked about 100 yards, towards the truck. As they approached the bridge, the truck began to "rev" its engine and then "floored it" across the bridge, swerving as it did so. Both men tried to get out of the way, but the truck struck Genthner, causing his injuries. The truck then sped away and remains unidentified.

Progressive's policy, in relevant part, states:

We will pay damages, other than punitive or exemplary damages, for bodily injury which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle up to the limit of liability as defined in this Part. The bodily injury must be caused by accident and arise out of the ownership, maintenance or use of an uninsured motor vehicle.

An "insured person" includes the policyholder or a relative, plus "any person occupying [the policyholder's] car." Occupying is defined as "in, on, getting into, out of or off."

Applying the stipulated facts to the policy language, the court ruled that Genthner was not an insured party under Progressive's policy. The court stated:

[T]here is no causal connection between the incident which caused the Plaintiff's injuries and Mr. Conroy's car. Therefore, as a matter of law, the Plaintiff was not occupying the Conroy vehicle as that term is defined in the policy.

From this ruling, Genthner appeals.

Progressive focuses on the precise moment of injury and argues that Genthner was not then "in, on, getting into, out of or off" Conroy's vehicle. Genthner argues that although, in the abstract, the meaning of the term "occupying," may be clear, it becomes ambiguous when applied. We agree.

An insured carefully reading the policy language could not determine whether plaintiff's claim is covered. See Peerless Ins. Co. v. Brennon, 564 A.2d 383, 384 (Me.1989) (an insurance contract is said to be ambiguous "if an ordinary person in the shoes of the insured would not understand that the policy did not cover" the claim). This latent ambiguity in the language of the policy is confirmed by an examination of the numerous appellate opinions dealing with this issue in other jurisdictions. Courts adopting a liberal interpretation of similar insurance contracts would generally find coverage on these facts because of the functional nexus between the insured vehicle and the claimant's injury. ¹ Other courts, applying a more literal interpretation of the term "occupying," would deny coverage because of the absence of physical contact with the insured vehicle, or close proximity accompanied by an activity absolutely essential to operation of the vehicle. ²

When, as in the present case, an insurance contract is ambiguous, it is construed against the insurer in favor of coverage. Gross v. Green Mountain Ins. Co., 506 A.2d 1139, 1141 (Me.1986), citing Baybutt v. Commercial Union Ins. Co., 455 A.2d 914, 921 (Me.1983), overruled on other grounds, Peerless Ins. Co. v. Brennon, 564 A.2d 383, 387 (Me.1989). A reasonable reading of the policy would include Genthner's claim. He was a passenger in the insured vehicle at the time of the collision. But for the collision, he would have remained in the car. His effort to assist the driver in securing the license number of the other vehicle involved only a temporary interruption of the trip and was directly and reasonably related to the operation and use of the insured vehicle.

We decline to adopt a formula for defining the outer limits of a "reasonable reading" of the ambiguous policy language. The exact line between "reasonable" and "unreasonable" will have to be defined on a case-by-case determination. We can say only that the facts of this case fall within the boundary.

The entry is:

Judgment vacated. Remanded for further proceedings consistent with the opinion herein.

GLASSMAN, CLIFFORD, RUDMAN and LIPEZ, JJ., concurring.

DANA, Justice, dissenting.

I respectfully dissent. Because Genthner was neither "in, on, getting into, out of or off" the Conroy vehicle at the time of the "accident," he was not "occupying" the vehicle at that time. As a consequence, the Conroy insurance policy does not provide coverage. As applied to the facts of this case, it is difficult to envisage a less ambiguous definition of the word "occupying" than the one contained in the policy. If it is ambiguous, any reformulation would be as well. Labeling a word ambiguous, however, does not make it so. Genthner voluntarily left the insured vehicle and was walking away from it to identify the assailant. Progressive Casualty Insurance Company did not provide insurance for such an undertaking. I would affirm the judgment of the Superior Court. ¹

1 See, e.g., Guarantee Ins. Co. v. Anderson, 585 F.Supp. 408, 411 (E.D.Pa.1984) (Under New Jersey law, driver of commercial truck who had pulled onto side of highway to investigate cause of black smoke coming out of engine was "occupying" the truck as he stood on the side of the road and was struck by an uninsured motorist, as he "had not terminated his use [of the truck] but had merely stopped to determine the source of a problem with the truck."); Manning v. Home Ins. Co., 128 Ariz. 79, 623 P.2d 1235, 1238 (App.1980) (Passenger who was standing next to vehicle, waiting to render assistance to driver as he placed snow chains on tires, was "occupying" the vehicle when struck by an uninsured motorist because her activity was "so related to [her] occupancy and use of the car". The court adopted the liberal construction of the term in light of the policies expressed by the state's mandatory uninsured motorist coverage.); Wolf v. American Casualty Co. of Reading, Pa., 2 Ill.App.2d 124, 118 N.E.2d 777 (1954) (Driver who got out of his car after a traffic accident, to exchange information with other driver, was 'upon' his car when he was struck by a third, uninsured motorist as he stopped to write down his own license plate number.); Michigan Mutual Ins. Co. v. Combs, 446 N.E.2d 1001 (Ind.App., 2 Dist.1983) (Where brother of the owner of a disabled vehicle had arrived to render assistance to the vehicle, and had neither been a passenger in the disabled vehicle nor intended to become one, he was nonetheless "occupying" the vehicle as he rested his knees on the bumper and worked on the car's engine and was struck by an uninsured motorist, based on his "relationship" to the vehicle.); Kentucky Farm Bureau Mutual Insurance Co. v. Gray, 814 S.W.2d 928 (Ky.App., 1991) (Driver who had borrowed his grandmother's car and had pulled off the side of the road to assist a stranded motorist was "occupying" the car when he leaned over the engine of his grandmother's car and was injured as the disabled vehicle rolled into him.); White v. Williams, 563 So.2d 1316, 1318 (La.App., 3 Cir., 1990) (Passenger who had exited car to pay convenience store cashier for gas was "occupying" the car when he was struck by an uninsured motorist as he was crossing the parking lot to get back into the car, under the "relationship test": "His physical departure was solely for the purpose of performing an act that was physically and directly related to the car."); Day v. Coca-Cola Bottling Company, Inc., 420 So.2d 518 (La.App., 2 Cir., 1982) (Where passenger and driver pulled over onto side of highway to assist a disabled vehicle, passenger was injured "while alighting from" the vehicle as he stood next to truck and was struck by a third vehicle; fact that passenger...