Nathan W. Etter v. the Travelers Ins. Companies
| Decision Date | 31 March 1995 |
| Docket Number | 95-LW-3378,C.A. 94-CA-51 |
| Parties | NATHAN W. ETTER, Plaintiff-Appellee v. THE TRAVELERS INSURANCE COMPANIES, Defendant-Appellant C.A. Case No. 94-CA-51. |
| Court | Ohio Court of Appeals |
JOSE M LOPEZ of WEISBROD & LOPEZ CO., L.P.A., 9 West Water Street Troy, Ohio 45373, Atty. Reg. #0019580, Attorney for Plaintiff-Appellee.
LEO F. KREBS of BIESER, GREER & LAADIS, 400 National City Center, 6 North Main Street, Dayton, Ohio 45402, Atty. Reg. #0009097, Attorney for Defendant-Appellant.
Appellant Travelers Insurance Companies (Travelers) appeals from the judgment of the Miami County Court of Common Pleas declaring that appellee Nathan W. Etter is entitled to recover under an uninsured motorist policy provided by Travelers because Etter wa "occupying" the insured vehicle at the time he was injured.
The facts in this case are not in dispute. On January 10, 1993, Laura G. Etter permitted her grandson, Nathan W. Etter, to operate her 1984 Buick Regal automobile. As Nathan was traveling along Interstate 75, which had become slippery due to the cold and drizzly weather condition, the Buick slid off the paved portion of the road into the median. The Buick came to a rest in the middle of the median strip, approximately twenty feet west of the highway.
Shortly after Nathan slid off the road, Trooper Richard Whitehead, a state highway patrolman, approached the Buick. Since Nathan was uninjured and the Buick was not damaged, Nathan and Trooper Whitehead crossed the highway and entered the state patrol vehicle. Trooper Whitehead called a tow truck and then instructed Nathan to return to the Buick to wait for its arrival.
Nathan crossed the highway and returned to the Buick. Approximately five to ten minutes later, Nathan noticed a Mazda automobile slide off the roadway and into the median. The Mazda came to a stop approximately twenty to thirty feet behind the Buick. Nathan left the Buick and walked to the Mazda to check on its occupants. Approximately at the same time, Trooper Whitehead returned to the scene. As the occupants of the Mazda were uninjured, Trooper Whitehead asked Nathan to help him push the Mazda out of the median.
Nathan and Trooper Whitehead positioned themselves behind the Mazda and attempted to push it. After pushing approximately one minute, a third vehicle -- a Toyota Celica -- also slid off of the road and into the median. As it was sliding, the Celica struck Nathan causing him to sustain serious physical injuries.
The Buick was covered by an insurance policy issued to Laura Etter by Travelers which was in full force and effect on the date of the accident. Because the driver of the Celica -- Min Chun Ling -- was an underinsured motorist, Nathan sought a declaratory judgment against Travelers declaring that Nathan was covered under the policy Travelers issued to Laura Etter, and thus was entitled to recover underinsured motorist benefits from Travelers.
For purposes of the action, the parties stipulated that Nathan was not a named insured under the policy and that the sole issue for the trial court's determination was whether Nathan was "occupying" the vehicle at the time of the accident. To assist the trial court, the parties agreed that the court should consider only the factual stipulations of the parties, the Travelers insurance policy, the depositions of Nathan Etter and Susan M. Roswell -- the driver of the Mazda, and the Ohio Highway Patrol traffic crash report.
After considering the evidence and the briefs submitted by the parties, the trial court entered its findings of fact, conclusions of law, and declaration of rights. The trial court concluded that Nathan was "occupying" the Buick at the time of the accident and is therefore entitled to coverage under the insurance policy. On September 26, 1994, the trial court entered final judgment in favor of Nathan. Travelers then filed this timely appeal.
On appeal, Travelers raises four assignments of error. The foundation of each assignment of error is the trial court's finding that Nathan was "occupying" the Buick at the time of the accident. Due to their substantial similarity and in the interest of judicial economy, the assignments of error will be considered together.
Nathan sought coverage under the following provision of the insurance policy issued by Travelers:
We will pay damages which an "insured" is legally entitled to recover from the owner or operator of an "uninsured motor vehicle" because of "bodily injury" caused by an accident. The owner's or operator's liability for these damages must arise out of the ownership, operation, maintenance or use of the "uninsured motor vehicle". We will pay under this coverage only after thee limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements.
The policy defines "insured" as the named insured, any family member residing with the named insured, and any other person "occupying" the covered automobile. The policy further states that the term "occupying" means "in, upon, getting in, on, out or off." As Nathan is not the named insured under the policy, nor a family member residing with the named insured, Nathan is only covered by the policy if he was "occupying" the Buick at the time of the accident.
At the outset, we note that where language in an insurance contract is reasonably susceptible to more than one meaning, it should be liberally construed in favor of the insured and against the insurer. Buckeye Union Ins. Co. v. Price (1974), 39 Ohio St.2d 95. Further, the Ohio Supreme Court has stated that the word "occupying" should not be given an unduly narrow definition, but, rather, should be given a liberal interpretation. Kish v. Central Nat. Ins. Group (1981), 67 Ohio St.2d 41.
Ohio courts have repeatedly faced the task of interpreting the term "occupying" for purposes of insurance coverage. See Robson v. Lightning Rod Mut. Ins. Co. (1978), 59 Ohio App.2d 261; Halterman v. Motorists Mut. Ins. Co. (1981), 3 Ohio App.3d 1. A review of those cases reveals that "determining whether a person is occupying' a vehicle is not as easy as it might appear at first blush." Robson, supra at 263. Although the term "occupying" as defined in the insurance contract may not seem ambiguous on its face, it often becomes ambiguous when determining whether insurance coverage should be extended in certain factual circumstances. Id.
The Ohio Supreme Court first addressed the issue of interpreting the term "occupying" in insurance contracts in Kish v. Central Nat. Ins. Group (1981), 67 Ohio St.2d 41. The Kish court held that, even under a liberal construction of the term, the claimant, who was attempting to return to his vehicle to escape an assault, was not occupying the vehicle. Id. The court simply reasoned that attempting to return to a vehicle for the sole purpose of avoiding an attacker was not a task related to the operation of the vehicle. Id. The facts of Kish are clearly distinguishable from those of the present case.
The Ohio Supreme Court again addressed the issue of how to interpret the term "occupying" in Joins v. Bonner (1986), 28 Ohio St.3d 398. In Joins, a child exited an insured vehicle and began to cross the street in order to reach his babysitter's house. Id. Before he reached the curb, the child was struck by an uninsured vehicle. Id. The Ohio Supreme Court held that the child was occupying the vehicle for purposes of insurance coverage because he was "alighting from" the vehicle.(fn1) The court reasoned that "a person is not `finished' with exiting a vehicle until he or she reaches a place of safety on the side of the street or road to which he is proceeding." Id. at 400.
Because of the particular facts of the case, the court's reasoning in Joins focused mainly on the specific language of "alighting from" in the contractual definition of "occupying." However, the court also adopted a universal standard for determining whether a person is "occupying" a vehicle: In construing uninsured motorist provisions of automobile insurance policies which provide coverage to persons `occupying' insured vehicles, the determination of whether a vehicle was occupied by the claimant at the time of an accident should take into account the immediate relationship the claimant had to the vehicle, within a reasonable geographic area. Id. at 401, citing Robson, supra.
Courts have subsequently utilized the Joins analysis to determine whether a claimant is "occupying" a vehicle.
Pursuant to Joins, a claimant must have an immediate relationship to the vehicle to be occupying the vehicle. Joins, supra. Appellate courts have developed guidelines for determining whether a sufficient relationship between the claimant and the vehicle exists. First, the claimant's performance of a task related to the operation of an insured vehicle provides a sufficient basis for his relationship to the vehicle. See, e.g., Halterman, supra (); Morris v. Continental Ins. Cos. (1991), 71 Ohio App.3d 581. Additionally, a sufficient relationship to the vehicle also exists if the claimant's conduct is "forseeably identifiable" with the normal use of the vehicle. Morris, supra; Yoerger v. General Acc. Ins. Co. of America (Nov. 15, 1994) Franklin App. No. 94APE04-501, unreported (working on highway pavement near work vehicle sufficient to support a relationship with the vehicle). Forseeably identifiable conduct includes "[p]erformance of activities related to the claimant's prior presence in the insured vehicle." Morris, supra at 587. Finally, some appellate courts also...
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