Ostendorf v. Arrow Ins. Co.
| Decision Date | 04 December 1970 |
| Docket Number | No. 42384,42384 |
| Citation | 288 Minn. 491,182 N.W.2d 190 |
| Parties | Ervin J. OSTENDORF, Respondent, v. ARROW INSURANCE COMPANY, Appellant. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
This court will not redraft insurance policies in order to provide coverage where the plain language of the policy indicates that no coverage exists. The terms used in an insurance policy must be given their plain, ordinary, and popular meaning, so as to effect the intent of the parties.
Held, under the uninsured motorists coverage of the policy involved here plaintiff's daughter was not 'occupying' his automobile by being 'in or upon, entering or alighting from' the automobile at the time she was struck and injured.
Quinlivan, Williams, Johnson & Quinlivan, St. Cloud, for appellant.
Roger Nierengarten, St. Cloud, O. C. Adamson, II, Minneapolis, of counsel, for respondent.
Heard before KNUTSON, C.J., and NELSON, MURPHY, ROGOSHESKE, and FRANK T. GALLAGHER, JJ.
This is an appeal from a judgment of the district court in a declaratory judgment action to determine whether the uninsured motorists coverage provided in an insurance policy written by defendant, Arrow Insurance Company, is applicable to an accident involving the minor daughter of plaintiff insured, Ervin J. Ostendorf. Upon a stipulation of facts, the district court ruled that the policy afforded coverage.
It appears from the stipulation that on December 28, 1966, plaintiff drove his insured automobile to Waite Park, Minnesota, where he parked on the north side of Third Street. He was accompanied by his daughter, Joyce, then 6 years of age. She got out of the car, crossed the street to a dairy store where she purchased some potato chips, and started to return across the street to plaintiff's automobile. At a point approximately 10 feet southerly of her father's car, and while she was still on the traveled portion of Third Street, Joyce was struck by an automobile driven by an uninsured motorist. She suffered a fractured right femur and a cerebral concussion.
Subsequent to the accident, a claim was made upon the defendant insurance company for damages sustained by plaintiff and personal injuries sustained by Joyce as a result of the accident. The claim was made pursuant to Coverage F of the policy, the uninsured motorists coverage. In response, defendant alleged that uninsured motorists coverage under the policy was limited to insureds who were 'occupying' the insured vehicle and that coverage did not extend to pedestrians. Defendant therefore denied coverage, and plaintiff brought this action.
The sole legal issue raised for determination by the trial judge was whether Joyce was 'occupying' plaintiff's automobile, as the term is defined in the policy, when she was struck by the uninsured automobile.
The trial judge found that Joyce would be within the uninsured motorists coverage if, when injured, she was occupying the insured's automobile. The policy defines 'occupying' as follows:
'For purposes of this coverage 'occupying' shall mean in or upon, entering or alighting from the insured automobile.'
He also found that the policy definition of 'occupying' shows intent of the insurer to provide uninsured motorists protection to a passenger when the automobile was parked and the passenger outside of it; that the insurer had not required that the passenger be touching the insured automobile in order to be considered as entering it, because the word 'upon' in the definition of 'occupying' covers actual contact; and that 'entering' refers to a time, location, and conduct antecedent to physical contact with the insured automobile. The last finding of fact states:
'Since Joyce was undergoing a necessary and integral part of a process of getting back within the insured automobile and was subjected to a hazard reasonably incident to that process, and reasonably within the contemplation of the parties, she filled, substantially, all of the requirements for coverage and she was 'entering' the insured automobile within the meaning of Coverage F when she was struck.'
The trial judge concluded that Joyce was 'occupying' the automobile of plaintiff, as the term is defined in Coverage F, when she was struck.
In a memorandum accompanying the order, the...
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