Miller v. Loman

Decision Date14 December 1987
Docket NumberNo. 41A04-8703-CV-79,41A04-8703-CV-79
Citation518 N.E.2d 486
PartiesSteve MILLER, Appellant, v. George LOMAN, John C. Perkinson, and Allstate Insurance Company, Appellees.
CourtIndiana Appellate Court

Douglas N. Ryan, George Clyde Gray, Gray Robinson Eckert & Ryan, Indianapolis, for appellant.

John W. Hammel, Yarling Robinson Hammel & Lamb, Indianapolis, for appellees.

MILLER, Presiding Judge.

Steve Miller was hit by an automobile driven by George Loman, an uninsured motorist, after Miller had exited a truck owned by John C. Perkinson. Miller brought suit against Loman, Perkinson, and Perkinson's insurer, Allstate Insurance Company. Allstate filed a motion for summary judgment which the trial court granted, finding Miller's accident outside the scope of the Uninsured Motorist provision of Perkinson's policy. Miller appeals, and we affirm.


The facts most favorable to Miller, the non-moving party, reveal that, on December 20, 1983, John and Laura Perkinson were taking their friends, Steve and Judi Miller, to the Indianapolis Airport in the Perkinson's Chevrolet pickup truck. John drove the truck, the two women sat in the middle, and Steve sat nearest the passenger side door. The truck, traveling down West Raymond Street, hit a pothole dislodging the muffler from the truck. The muffler fell off at a point where West Raymond is a four lane street with a three foot wide median divider. Perkinson continued on until he reached a place where he could turn the truck around. He then stated he was going to go back and get the muffler out of the roadway so he could retrieve it on the way home. He returned to where the muffler fell off, and turned his truck into a turn lane cut into the median. He stopped the truck and Miller volunteered to retrieve the muffler. Perkinson warned it would be hot and told him not to pick it up, and directed him to kick it off the side of the road so that Perkinson could retrieve it on the return trip from the airport.

Miller got out of the truck, walked behind it, and crossed over two lanes of the road to the location of the muffler. He was about thirty feet from the truck and a foot or two from the berm when he reached the muffler. As he kicked it off the road, he was hit by a car driven at approximately forty-five to fifty miles per hour by George Loman, an uninsured motorist. Miller was thrown over the car to the side of the road. As a result of the accident, he suffered multiple fractures in his arm, a shoulder dislocation, a compound fracture of his right thigh, and multiple fractures of his lower leg.


Miller presents two questions for review: 1) was Miller entitled to coverage under the policy because he was "in, on, getting into, or getting out of" the insured vehicle at the time of the accident and; 2) was Miller entitled to coverage because he was engaged When we review a summary judgment, we will affirm only if there are no conflicts as to any material facts or as to any of the material inferences which can be drawn from the facts. Joseph v. Calvary Baptist Church (1986), Ind.App., 500 N.E.2d 250. We take all allegations of the non-moving party as true, and we construe all depositions, admissions, answers to interrogatories, and testimony in favor of the non-moving party. Id. If the moving party is entitled to judgment as a matter of law, we will affirm. Here, if the facts most favorable to Miller will not support the conclusion that he was an occupant of the truck, we will affirm.

in the maintenance, use, and loading of the insured vehicle?


The uninsured motorist coverage purported to extend protection to "[a]ny person while in, on, getting into or out of an automobile." Allstate contends this language is restrictive and limits recovery to accidents which occur near the automobile shortly after the injured party exited it. Miller was run over approximately thirty feet from Perkinson's truck, and Allstate contends he was outside the area in which he was subject to risks resulting from his exit from the automobile. Miller, on the other hand, argues it is improper for the court to focus only on the time and distance separating the accident from the automobile. He concedes that time and distance may be considered, but that the time and distance factors should not be the only indicia of a relationship between the injured party and the automobile. While we find support for both positions in out of state authorities, we must conclude time and distance are not the sole indicia of a relationship between the injured party and the car under our law. However, we also must conclude that Miller was not entitled to coverage under the facts presented here.

Several cases from out of state jurisdictions support Allstate's argument that the relationship between the injured party and the insured automobile must be close in time and distance. In Crear v. National Fire & Marine Insurance Co. (1985), La.App., 469 So.2d 329, decedent was a senior citizen who accepted transportation, in a community service van, to the local post office. The decedent exited the van with the aid of the driver, who walked him to the end of the van. As the decedent crossed a drive-through lane, he was hit by a car which was backing out of a parking space. He was approximately halfway across the drive-through lane when he was hit. The court denied coverage, stating:

"In Day v. Coca Cola Bottling Corp., Inc., 420 So.2d 518 (La.App. 2d Cir.1982), this court addressed the meaning and scope of the term 'while alighting from' in an automobile policy's UM coverage provisions. We held that it is not physical contact with the vehicle that serves as a basis for determining whether a person is injured while alighting from a vehicle, but the relationship between the person and vehicle. The relationship is turn involves two separate factors: time and distance. When the time and distance factors are no longer proximate to the risk to which a person exposes himself while alighting from a vehicle, coverage ceases. The person at some time and at some distance 'loses' the UM protection." Id. at 336-337 (emphasis added).

The California Court of Appeals reached a similar result in Menchaca v. Hiatt (1976), 59 Cal.App.3d 117, 130 Cal.Rptr. 607. In Menchaca, the plaintiff was struck by a car while crossing the street to get into her cohabitant's automobile after seeing a movie. Although the plaintiff stated she intended to proceed directly to the car and enter it, the court found no coverage because "her injuries did not result from her being in close proximity to the car...." Id. at 129, 130 Cal.Rptr. at 614.

In Breard v. Haynes (1981), La.App., 394 So.2d 1282, the plaintiff was a passenger in a car which was involved in an accident. He and the driver left the car and stood near the car of an investigating officer. There, he was struck by a van. The court held any recovery relied on a physical relationship between the plaintiff and the insured Several courts have denied coverage under the uninsured motorist provisions while purporting to apply a test which takes more than time and distance into account. The Florida District Court of Appeals, for instance, has adopted a test which examines the intent of the injured party in determining his relationship to the insured vehicle:

                vehicle.  The court found no such relationship because "the Cook vehicle was approximately seventy feet from where the second accident occurred;  there was approximately fifteen minutes elapse in time between the time of the first accident and the second accident."   Id. at 1284

"On the other hand, there must be a limit to the activity that can be said to be a part of 'alighting from.' Cf. Rice v. Allstate Insurance Company, 32 N.Y.2d 6, 342 N.Y. S.2d 845, 295 N.E.2d 647 (1973); and Carta v. Providence Washington Indemnity Company, 143 Conn. 372, 122 A.2d 734 (1956). We think that a rational limit to the activity that may be said to be encompassed within the term 'alighting from' is the time and place at which the insured shows an intention, evidenced by an overt act based on that intention, to undertake a new direction or activity. See Carta v. Providence Washington Indemnity Company, supra [122 A.2d] at 737. See also Testone v. Allstate Insurance Company, 165 Conn. 126, 328 A.2d 686, 691 (1973); and Lautenschleger v. Royal Indemnity Company, 15 N.C.App. 579, 190 S.E.2d 406 (1972); and cf. Nelson v. Iowa Mutual Insurance Company, 163 Mont. 82, 515 P.2d 362, 364 (1973)."

Fidelity & Casualty Co. of New York v. Garcia (1979), Fla.App., 368 So.2d 1313, 1315; accord State Farm Mutual Auto Insurance Co. v. Yanes (1984), Fla.App., 447 So.2d 945.

In Garcia, the court found that crossing a street was an activity distinct from alighting from a vehicle, and the court accordingly denied coverage under the policy. 368 So.2d at 1315. Our reading of Garcia and Yanes convinces us that the factors of time and distance were preeminent in leading the Florida courts to conclude that particular overt acts evinced an intention to undertake a new direction or activity.

Several jurisdictions have engaged in a more complex analysis of this problem, and have chosen to look at more than mere time and distance in order to determine whether an injured party is covered by the insurance. In Government Employees Insurance Co. v. Keystone Insurance Co. (E.D.Penn.1977), 442 F.Supp. 1130, the plaintiff was injured when he exited a friend's car to assault the driver of a second car. The driver of the second car ran over the plaintiff as he approached. The court, granting coverage pursuant to its interpretation of Pennsylvania law, stated:

"The common thread of reasoning which permeates this line of cases is well illustrated by the following quote from the Allstate case, supra [Allstate Insurance Company v. Flaumenbaum (1970) 62 Misc.2d 32, 308 N.Y.S.2d 447]:

'... a person has not ceased 'occupying' a vehicle until he...

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