Lambert v. Coregis Ins. Co., Inc.

• Decision Date: 28 July 2006
• Docket Number: 1040720.
• Citation: 950 So.2d 1156
• Parties: Dick L. LAMBERT v. COREGIS INSURANCE COMPANY, INC.
• Court: Alabama Supreme Court

950 So.2d 1156

Dick L. LAMBERT v. COREGIS INSURANCE COMPANY, INC.

1040720.

Supreme Court of Alabama.

July 28, 2006.

Patrick B. Collins, Daphne, for appellant.

Ian D. Rosenthal of Cabaniss, Johnston, Gardner, Dumas & O'Neal, LLP, Mobile, for appellee.

SMITH, Justice.

Dick L. Lambert sued Coregis Insurance Company, Inc., seeking uninsured/underinsured-motorist ("UM") benefits under an insurance policy issued by Coregis to Lambert's employer, South Alabama Utilities. That policy provided UM coverage for South Alabama Utilities' company vehicles. Coregis answered the complaint and shortly thereafter moved for a summary judgment arguing that Lambert was not an "insured" as that term is defined in the Coregis policy covering the company. The trial court entered a summary judgment in favor of Coregis. We affirm.

Facts and Procedural History

This case arose from an accident that occurred on June 20, 2000. On that day, Lambert, in the course of his employment for South Alabama Utilities, was assisting several other employees in installing a 12-inch water main along Snow Road in Mobile County. Lambert had driven to that site in a company truck at approximately 7:30 that morning and had been working at the site the entire morning.

A few minutes before 11 a.m., Lambert went to his company truck to lift a jug of water out of the truck. Immediately afterward, Lambert positioned himself a few feet off the side of the road between his company truck and another company truck that was parked about 18 feet away from Lambert's truck and facing in the opposite direction, so that the trucks were bumper to bumper. At this time, Lambert was positioned about seven to nine feet from the back of the company truck he had driven that morning and was waiting for a backhoe operator to finish putting dirt back into the trench where the water main had been installed.

Brian Shane Contestibile, an employee of Southeastern Exterminators, Inc., was driving along Snow Road that morning. As he approached the utility worksite, Contestibile swerved off the road and hit Lambert as he was standing between the two South Alabama Utilities trucks. Lambert became entangled in the side mirror of Contestibile's vehicle and was dragged several feet until Lambert hit the bumper of his company truck; at that point he rolled underneath the company truck. Lambert immediately got out from under the truck and stood up, but he had sustained various injuries. It is unclear whether any of the injuries were caused by the contact with Contestibile's vehicle or with the bumper of the company truck.¹

Lambert sued Contestibile and Contestibile's employer. Those claims were ultimately settled. Lambert also sued his own employer and his employer's workers' compensation insurance carrier, seeking workers' compensation benefits. The workers' compensation portion of the case was tried; it was determined that Lambert was permanently and totally disabled.

Lambert then sued Coregis, South Alabama Utilities' UM carrier. Coregis and South Alabama Utilities had entered into a comprehensive insurance agreement that originally went into effect on August 22, 1998; it was renewed on August 22, 1999, for a one-year term. Part of the insurance agreement is a "business auto coverage form" with an UM endorsement. There is also an "auto medical payments coverage" included in the agreement.

The original declarations in the insurance agreement identify the named insured as South Alabama Utilities, and page 1 of the business auto coverage form defines "you" as the named insured shown in the declarations.

Section II of the business auto coverage form addresses liability coverage, as follows:

"A. COVERAGE

"We will pay all sums an `insured' legally must pay as damages because of `bodily injury' or `property damage' to which this insurance applies, caused by an `accident' and resulting from the ownership, maintenance or use of a covered `auto.'

"....

"1. WHO IS INSURED

"The following are `insureds':

"a. You for any covered `auto.'

"b. Anyone else while using with your permission a covered `auto' you own...."

The UM endorsement expressly modifies the insurance provided under the business auto coverage form; it states:

"A. Coverage

"1. We will pay all sums the `insured' is legally entitled to recover as damages from the owner or driver of an `uninsured motor vehicle.' The damages must result from `bodily injury' sustained by the `insured' caused by an `accident'....

"....

"B. Who Is An Insured

"1. You.

"2. If you are an individual, any `family member.'

"3. Anyone else `occupying' a covered `auto' or a temporary substitute for a covered `auto.' The covered `auto' must be out of service because of its breakdown, repair, servicing, loss, or destruction.

"4. Anyone for damages he or she is entitled to recover because of `bodily injury' sustained by another `insured.'

"....

"F. Additional Definitions

"As used in this endorsement:

"....

"2. `Occupying' means in, upon, getting in, on, out or off."

(Emphasis added.)

The auto medical payments coverage also expressly modifies the insurance provided under the business auto coverage form; it states:

"B. WHO IS AN INSURED

"1. You while `occupying' or, while a pedestrian, when struck by any `auto.'

"2. If you are an individual, any `family member' while `occupying' or, while a pedestrian, when struck by any `auto.'

"3. Anyone else `occupying' a covered `auto' or a temporary substitute for a covered `auto.' The covered `auto' must be out of service because of its breakdown, repair, servicing, loss, or destruction."

(Emphasis added.)

The auto medical payments coverage uses the same definition for "occupying" as does the UM endorsement—"in, upon, getting in, on, out or off."

The trial court held that Lambert did not qualify as an insured under the UM endorsement because "[e]ven construing the insurance contract liberally in favor of the putative insured, Mr. Lambert, and against the insurer Coregis, no plausible definition of `occupying' describes Mr. Lambert...." The trial court concluded that "[t]he common usage of the term `occupying' a vehicle would not encompass a body glancing off the bumper en route to the ground."²

Standard of Review

"We review a summary judgment de novo. Mobile Airport Auth. v. HealthSTRATEGIES, Inc., 886 So.2d 773, 779 (Ala.2004). We accord the lower court's legal conclusions no presumption of correctness. Id." Safeway Ins. Co. of Alabama v. Herrera, 912 So.2d 1140, 1143 (Ala.2005).

In Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala. 1997), this Court set out the standard for reviewing a summary judgment:

"In reviewing the disposition of a motion for summary judgment, `we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,' Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was `entitled to judgment as a matter of law.' Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is `substantial' if it is of `such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990)."

Analysis

Lambert raises one issue on appeal: Lambert argues that, contrary to the trial court's holding, he qualifies as "an insured" under the policy because he was either "upon" or "on" the covered vehicle at the time of the accident and thus was "occupying" the vehicle under the terms of the policy. It should be noted at the outset that the word "getting" appears to modify the prepositions "in, on, out, or off" in the policy provision defining "occupying" because the policy could not possibly cover everyone who was "out" or "off" the vehicle. See Rohlman v. Hawkeye-Sec. Ins. Co., 207 Mich.App. 344, 351, 526 N.W.2d 183, 186 (1994) (concluding that "the parties could not realistically have intended that any stranger who is injured in an accident involving the covered vehicle and an uninsured motorist would be occupying the covered auto if it could only be shown that the stranger was somewhere `off' the vehicle, or `out' of the vehicle"). Lambert does not argue that he was "getting on" the covered vehicle. Lambert contends only that he was "on" or "upon" the covered vehicle when he struck it. In any event, "upon" in modern usage is the equivalent of "on." Merriam-Webster's Collegiate Dictionary (11th ed.2003). Therefore, the two words should be treated as the same for the purpose of examining Lambert's argument.

Alabama has not adopted a specific test under which to examine the phrase "in, upon, getting in, on, out or off" in order to determine whether a person is "occupying" a vehicle in the context of the insurance agreement at issue in this case. Other jurisdictions, however, have adopted specific tests for making such a determination. These tests include requiring the person injured to be "vehicle oriented," requiring the person to be in close proximity to the insured vehicle, and requiring actual physical contact with the vehicle.³ The majority of jurisdictions hold that the meaning of the term "occupying" must be determined on a case-by-case basis, depending on the facts of the accident and...