Nickerson v. Citizens Mut. Ins. Co.

• Decision Date: 21 January 1975
• Docket Number: No. 9,9
• Citation: 224 N.W.2d 896,393 Mich. 324
• Parties: Bruce NICKERSON, Plaintiff-Appellant, v. CITIZENS MUTUAL INSURANCE COMPANY, Defendant-Appellee. 393 Mich. 324, 224 N.W.2d 896
• Court: Michigan Supreme Court

Page 896

224 N.W.2d 896

Bruce NICKERSON, Plaintiff-Appellant, v.CITIZENS MUTUAL INSURANCE COMPANY, Defendant-Appellee.

No. 9.

393 Mich. 324, 224 N.W.2d 896

Supreme Court of Michigan.

Jan. 21, 1975.

David G. Moore, Flint, for plaintiff-appellant.

Howard C. Fisher, Flint, for defendant-appellee.

Before the Entire Bench.

WILLIAMS, Justice.

The primary question in this appeal, a matter of first impression before this Court, involves interpretation of what appears to be a common automobile insurance policy clause extending coverage for purposes of protection against damages caused by an uninsured motorist to any 'assured' who was '. . . occupying the insured automobile,' the term 'occupying' being defined in the policy as '. . . in or upon or entering into or alighting from.'

We hold that plaintiff in the instant case was covered under the language above due to (1) his immediate prior 'occupying' of the insured vehicle, and (2) his suffering of an injury arising out of the use or repair of the same automobile.The Court of Appeals having reached a contrary conclusion, is, accordingly, reversed.

I--FACTS

On December 24, 1969, plaintiff-appellantBruce Nickerson was a passenger in an insured automobile operated by Curtis Parvin in Davison, Michigan.The car stalled, was pushed to the side of the road by the occupants, and a passing motorist was flagged down to provide assistance.As the assisting car was turning around to come back to render aid, plaintiff Nickerson got out of the Parvin automobile on the driver's side and walked around to the front of the car.At this point, a third automobile driven by an uninsured motorist struck the insured Parvin automobile from behind, pushing it into plaintiff Nickerson who suffered injuries resulting in amputation of one leg, injuries to the other leg, and severe internal injuries.

Plaintiff sought recompense from defendant, insurer of the Parvin automobile.An arbitration award of $25,000 was made to plaintiff who thereupon filed suit in Genesee Circuit Court to confirm the award and to receive a modified judgment for $10,000, the policy limit.Plaintiff prevailed in full on February 27, 1973(14a--24a), the trial court finding, Inter alia, that:

'There were no interruptions in the action of Bruce Nickerson after the automobile stalled, between his alighting from the stalled automobile, between his pushing the stalled automobile, entering the automobile, and again alighting from the automobile at the request of Curtis Parvin for assistance, and the accident producing his injuries.'(23a)

The Court of Appeals reversed in a 2--1 opinion on March 6, 1974, the majority finding that plaintiff was not an 'occupant' of the Parvin vehicle within the policy language.52 Mich.App. 40, 216 N.W.2d 484(1974).We granted leave on May 22, 1974.391 Mich. 829.

II--JURISDICTION

The threshold issue in this case is jurisdictional.Plaintiff contends that defendant lost the right to contest the arbitration award when it failed to challenge it within 20 days after receipt of a copy of the award.¹However, the arbitrator did not rule on the issue at bar.The award reads, in relevant part, as follows:

'Issue 3 raises the question as to whether Nickerson was an assured within the meaning of the Citizens' policy.This issue bears upon whether claimant is entitled to recover from the insurer and not the uninsured motorist.This is a matter to be decided by Court and is not subject to arbitration.'(Emphasis added, citations omitted.)(6a--7a)

It would appear, accordingly, that defendant only lost the right to challenge the two issues that Were decided in arbitration: fault and damages.Defendant does not contest these issues in this appeal.²As the Court of Appeals noted, Rule 769 cannot reasonably be interpreted so as to require defendant'. . . to move to vacate or modify the award on an issue (occupancy) which was neither considered nor determined.The circuit court would have had nothing to rule upon.'52 Mich.App. 40, 44, 216 N.W.2d 484, 486.

The instant case is properly before this Court.

III--PLAINTIFF WAS 'OCCUPANT' UNDER POLICY LANGUAGE

Under the terms of the policy issued by defendant, plaintiff was an 'assured' for purposes of protection against damages caused by an uninsured motorist if he was '. . . occupying the insured automobile.'The term 'occupying' is defined in the policy as '. . . in or upon or entering into or alighting from.'

With regard to this precise language, the instant case is one of first impression.³However, in other jurisdictions there are numerous cases interpreting identical language.See generally: Annotation, 'Automobile Insurance: When Is A Person 'Occupying' An Automobile Within Meaning of Medical Payments Provision,'42 A.L.R.3d 501.⁴What becomes clear upon research into the law on point is that there are two distinct lines of thought on this matter--one line of cases requires 'physical contact' for recovery, the other line of cases holds that 'physical contact' alone is not the operative test for coverage.In the instant case, plaintiff claims policy coverage under this second line of cases pointing to (1) his immediate prior occupancy of the insured vehicle, and (2) his suffering of an injury arising out of the use or repair of the same vehicle.

In either case, courts considering this matter have uniformly interpreted such policy language bearing in mind the well-established maxim that language in an insurance policy is to be strictly construed against the insurer.This rule is, similarly, well-embedded in Michigan law.14 Michigan Law & Practice, Insurance, § 93, p. 71.

As well, many, if not most, of those courts leaning to the 'physical contact' rule have utilized it in an expansive manner tending to favor thereby the injured claimant.See for exampleWolf v. American Casualty Co., 2 Ill.App.2d 124, 118 N.W.2d 777(1954)(physical contact found where claimant was 2 or 3 feet in front of the car which was pushed into him by being struck by another car from the rear--almost this case);Madden v. Farm Bureau Mutual Auto Ins. Co., 82 Ohio App. 111, 37 Ohio Op. 456, 79 N.E.2d 586(1948)(physical contact found where claimant was leaning over the trunk);McAbee v. Nationwide Mutual Ins. Co., 249 S.C. 96, 152 S.E.2d 731(1967)(physical contact found where claimant crushed between truck and tractor put his hands out to try to push them away).

In this vein, we should also parenthetically bear in mind, as Judge McGregor pointed out in his Court of Appeals opinion, that unquestionably '. . . appellee was in contact with the automobile at the time of his injury.'52 Mich.App. 40, 48, 216 N.W.2d 484, 487.Certainly it cannot be disputed that without 'physical contact' in this case, there would have been no injury.Hence, a strictly literal reading of the policy language also favors plaintiff in this case.Who can doubt that plaintiff was 'upon' the car when injured?⁵

In sum, the approach to interpretation of this policy language which does not hold 'physical contact' mandatory, appears to us to be by far the more reasonable and persuasive approach.It accords with a strict reading of the policy language, it well implements the time-honored policy of construction of policy language against the insurer, and, perhaps most significantly, as Judge McGregor and plaintiff point out, it guards against recovery based entirely upon 'fortuitous circumstance.'As plaintiff reasons:

'If Defendant-Appellee's argument that there must be a physical touching of some part of the auto were to prevail, the following situation with on again off again coverage could be easily imagined.While getting out of the auto, a person would be an occupant and covered; after closing the door but still touching it, there would be coverage; after removing his hand from the door there would be no...