Michigan Mut. Ins. Co. v. Combs

Decision Date05 April 1983
Docket NumberNo. 2-582A138,2-582A138
Citation446 N.E.2d 1001
PartiesMICHIGAN MUTUAL INSURANCE COMPANY, Appellant (Plaintiff Below), v. Michael B. COMBS, Appellee (Defendant Below).
CourtIndiana Appellate Court

Joseph M. Dietz, Rick D. Meils, Meils, Zink, Thompson, Page & Dietz, Indianapolis, for appellant.

Max D. Rynearson, Rynearson, Laudig & Musser, Indianapolis, for appellee.

BUCHANAN, Chief Judge.


Plaintiff-appellant Michigan Mutual Insurance Company (Michigan Mutual) appeals from a summary judgment entered in favor of defendant-appellee Michael B. Combs (Michael), which judgment ordered Michigan Mutual to pay Michael $15,000 under the uninsured motorist clause of an auto insurance policy issued by Michigan Mutual to Cannon Combs (Cannon). Michigan Mutual argues the trial court erred in concluding, as a matter of law, that Michael was "occupying" Cannon's auto--and hence was an "insured" within the meaning of the aforementioned clause--when he was struck and injured by an uninsured vehicle.

We affirm.


The parties stipulated the facts as follows:

"On January 19, 1979, Cannon Combs was driving his 1970 Volkswagon [sic] when it was disabled and ceased to operate at the intersection of Warman and Morris Streets, in Indianapolis, Indiana. Cannon Combs moved his disabled vehicle to the curb near the southbound lane of Warman. He left the scene then and went to his brother, Michael Combs' place of employment with the objective of obtaining Michael Combs' assistance in making the car operational. Michael returned with his brother to the disabled vehicle in Michael Combs' car. After arrival, Michael Combs began working on the engine of the car and in fact, the brothers left the scene twice before obtaining the proper part. When they returned the last time, Michael Combs positioned the replacement part, and was working with the wires connected to the distributor, while Cannon Combs sat in the vehicle attempting to turn the engine over. While Michael Combs was working on the engine, he was stooped at the rear of the Volkswagon [sic] where the engine is located with his knees resting on the bumper. His position was directly in the middle of the rear of the Volkswagon [sic]. While in this position, Michael Combs was struck by another vehicle. As a result of the impact, Michael Combs was thrown upward and his body came in contact with the trunk lid opened over the engine at the rear of the car. The vehicle which struck Michael Combs was owned by Christine Book and driven by Peggy Smotherman, neither of whom were insured."

Record at 124-25.

The parties further stipulated that, at the time of the accident, Cannon's 1970 Volkswagen was insured under a policy issued by Michigan Mutual which protected the "insured" against damages caused by an uninsured motorist. The uninsured motorist clause defines (in Part IV of the policy) an "insured" as "any ... person while occupying an insured automobile." Id. at 13 (emphasis supplied). "Occupying", according to the policy, means "in or upon or entering into or alighting from." Id. at 12 (emphasis supplied). 1

On February 22, 1980, Michigan Mutual filed an action for a declaratory judgment against Michael, asking the trial court to rule that he "was not 'occupying' the 1970 Volkswagen such that he would be an 'insured' under the terms ... of the policy issued to Cannon B. Combs[.]" Id. at 7. On September 26, 1980, Michigan Mutual filed a motion for summary judgment in which it once again asserted Michael's failure to qualify as an "insured" under the pertinent policy provision. Michigan Mutual's motion incorporated the stipulation of fact referred to above, which further set forth the parties' understanding "that [Michael's] injury is of sufficient value that they agree that the full amount of coverage would be due and owing if the coverage is found to exist." Id. at 125.

The trial court granted summary judgment for Michael on September 3, 1981, concluding, as a matter of law, that he was "occupying" Cannon's Volkswagen when injured. Michigan Mutual was ordered to pay Michael $15,000, the full amount of coverage provided under the policy's uninsured motorist clause.


A single issue is raised for our review:

Did the trial court err in concluding, as a matter of law, that Michael was "occupying" Cannon's auto--and hence was an "insured" under the uninsured motorist provision of the policy between Cannon and Michigan Mutual--when he was injured by the uninsured vehicle?


PARTIES' CONTENTIONS--Michigan Mutual focuses on policy language in arguing that one who is "upon" an insured vehicle must occupy it for purposes of uninsured motorist coverage. Primary reliance is placed upon Pennsylvania National Mutual Casualty Insurance Co. v. Bristow, (1966) 207 Va. 381, 150 S.E.2d 125, in which the Supreme Court of Appeals of Virginia denied coverage under similar facts, concluding that to be "in or upon" a vehicle at the moment of injury, one must have had "some connection with 'occupying' " the car. 150 S.E.2d at 128. Because Michael was not riding in the insured vehicle when it became disabled and had not planned to ride in it after the necessary repairs were completed, he was not "upon" the insured auto, according to Michigan Mutual.

Michael's response is that the trial court's conclusion was proper in light of United Farm Bureau Mutual Insurance Co. v. Pierce, (1972) 152 Ind.App. 387, 283 N.E.2d 788, trans. denied, the only pertinent Indiana decision. The Pierce court relied on the "physical contact" rule, under which evidence of physical contact with an insured vehicle prior to injury was sufficient to warrant the conclusion that the claimant was "upon" the vehicle within the meaning of a medical payments provision employing the same language used here. Emphasizing that there is no dispute as to the fact of pre-injury contact, Michael contends that the trial court correctly decided that he was "occupying" Cannon's auto for purposes of coverage.

CONCLUSION--Michael was "upon" Cannon's auto at the time of injury so as to be "occupying" it within the meaning of the uninsured motorist clause. Thus, the trial court properly entered summary judgment in Michael's favor.

This case is an exercise in semantics as we must ascertain the intended meaning of the word "upon" when used as part of a definition of an insured as being one "occupying" an insured automobile--an exacting task in view of the diverse opinions on this subject. And, our factual setting is different from many of the reported cases. Most cases, including one Indiana decision, involve a claimant who had been or intended to be a driver or passenger of the insured vehicle. In such cases, the claimants fit more easily into the mold of "occupants" as that word is commonly understood. Here, we are presented with a claimant who, although his actions were directly related to the operation of the vehicle, was not a driver or passenger of the insured car. The reported cases do, however, provide us with some guidance.

We agree with the determination of numerous courts that an ambiguity is created by the use of the term "upon" in a clause providing coverage for injuries inflicted while the insured is "in or upon or entering into or alighting from" a motor vehicle. See, e.g., Wolf v. American Casualty Co., (1954) 2 Ill.App.2d 124, 118 N.E.2d 777; Pierce, supra; Madden v. Farm Bureau Mutual Auto Insurance Co., (1948) 82 Ohio App. 111, 79 N.E.2d 586; Sherman v. New York Casualty Co., (1951) 78 R.I. 393, 82 A.2d 839.

Standard dictionary definitions of "upon" are illustrative of the various meanings which may be attached to the word:

"1: ON 2a: upward so as to be on [jumped upon the horse] b: in a high position on [built a house upon the hill] 3: having a powerful influence on: lying heavily on [the enchantment of the beautiful scenery was still upon me--Scott Fitzgerald] [the hush upon the dinner table--Maurice Hewlett] ... 6 a(1): in or into close proximity or contact with by way of or as if by way of attack [the enemy is upon us] ... (2): into sudden esp. unexpected contact with [came upon the letter in an old desk] ... 8--used as a function word to indicate (1) a beginning course of action or an action or condition that is beginning ... or (2) an area of activity or being [a dashing young ensign just come upon the town--Washington Irving] ...."

Webster's Third New International Dictionary 2517, 2518 (1976). The list continues, but it is obvious that reasonable persons could differ in their opinions as to the meaning of the word "upon." So, to be "upon" a car is not necessarily to be "on" or even in contact with it.

We are faced, then, with ambiguous contract language. And that ambiguity is particularly appropriate for summary judgment interpretation because it is patent; i.e., it is an ambiguity which is apparent on the face of the contract by reason of the language used, and it produces a pure question of law. Churchwell v. Firestone Industrial Products Co., (1982) Ind.App., 431 N.E.2d 853, trans. denied; R.R. Donnelley & Sons Co. v. Henry Williams Inc., (1981) Ind.App., 422 N.E.2d 353, trans. denied. Thus, in this summary judgment setting, we must decide whether the trial court, as a matter of law, correctly interpreted the insurance contract. See Ohio Casualty Insurance Co. v. Ramsey, (1982) Ind.App., 439 N.E.2d 1162, trans. denied; R.R. Donnelley & Sons, supra.

As a reviewing court, we must ferret out the intent of the parties. To accomplish this, "the first resort in all cases is the natural signification of the words employed, in the order of grammatical arrangement in which the framers of the writing have placed them." Buddenberg v. Welch, (1933) 97 Ind.App. 87, 89, 185 N.E. 865, 866 (quoting Blythe v. Gibbons, (1895) 141 Ind. 332, 35 N.E. 557) (emphasis supplied). Accord Swigert v. Miles, (1921) 75 Ind.App. 85, 130 N.E. 130. Keeping this cardinal...

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