Roberts v. American Nat. Prop. and Cas. Co.

• Decision Date: 29 June 2007
• Docket Number: 1050616.
• Citation: 976 So.2d 1005
• Parties: Keri Adrienne ROBERTS v. AMERICAN NATIONAL PROPERTY AND CASUALTY COMPANY.
• Court: Alabama Supreme Court

976 So.2d 1005

Keri Adrienne ROBERTS v. AMERICAN NATIONAL PROPERTY AND CASUALTY COMPANY.

1050616.

Supreme Court of Alabama.

June 29, 2007.

Appeal from Mobile Circuit Court (CV-03-3909); John R. Lockett, Judge.

R. Edward Massey of Clay, Massey & Associates, P.C., Mobile, for appellant.

Edward B. McDonough, Jr., and Deena R. Tyler, Mobile, for appellee.

PER CURIAM.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(E), Ala. R.App. P., and Lambert v. Coregis Ins. Co., 950 So.2d 1156 (Ala.2006).

SEE, LYONS, WOODALL, STUART, SMITH, BOLIN, PARKER, and MURDOCK, JJ., concur.

COBB, C.J., dissents.

COBB, Chief Justice (dissenting).

I respectfully dissent from the majority's decision to affirm the summary judgment in favor of American National Property and Casualty Company. I believe that a jury question exists as to whether Keri Adrienne Roberts was "occupying" a vehicle, as that term is defined by the insurance policy covering the vehicle, at the time she sustained her injuries.

On November 21, 2001, Roberts was a passenger in a Ford Escort automobile owned by Roberts's mother and driven by Roberts's sister, Heather. Carrie Sells, a friend of Roberts's, was also a passenger in the Escort. As they traveled northbound on Lott Road in Mobile County they were behind a vehicle being operated by Eric Flint. They noticed that Flint's vehicle was swerving on the roadway, so they slowed to allow a safe distance between the Escort and Flint's vehicle. After they had followed Flint's vehicle for approximately one to two miles, Flint veered into the southbound lane and struck an oncoming vehicle. Although the Escort was traveling three to four car lengths behind Flint's vehicle, Heather, in an effort to avoid hitting the vehicle Flint had struck, which was spinning toward the Escort, drove the Escort into the ditch to the right of the lane in which she was traveling. The Escort did not make contact with either vehicle involved in the collision, and Roberts was not injured when Heather drove the Escort into the ditch.

After determining that no one in the Escort was injured, Roberts, Heather, and Sellers got out of the Escort. Heather and Sellers walked to the car that was struck by Flint's vehicle to assist the driver, and Roberts walked to Flint's vehicle to assist Flint. Flint's vehicle was located in the roadway on the opposite side of the road and approximately two to three car lengths down the road from the Escort. Roberts opened the driver's door of Flint's vehicle and took the keys out of the ignition. She tried to converse with Flint, but Flint was incoherent; he was swaying back and forth. Roberts had to hold the door open while she checked on Flint because the door would not stay open on its own. After she had stood next to Flint's vehicle for approximately two to three minutes, Roberts asked Heather to get Roberts's cell phone from the Escort so they could call emergency 911. As Roberts was telling Heather to get the cell phone, she was struck by an automobile driven by Karen Ann Vickers.

Roberts, who was eight months pregnant, was transported from the accident scene by helicopter to the University of South Alabama Medical Center, where she was treated for her injuries. Two days later, on November 23, 2001, she delivered; the child was stillborn.

On November 14, 2003, Roberts sued Vickers, Flint, and American National in the Mobile Circuit Court. American National insured both the vehicle Roberts owned as well as the Escort in which she was a passenger on November 21, 2001. In her original complaint, Roberts sought benefits under the uninsured-motorist coverage relating to the American National policy covering her vehicle. After Roberts filed her complaint, American National settled with Roberts and tendered the policy limits for uninsured-motorist benefits under the policy covering Roberts's vehicle, plus expenses and reimbursements. Roberts and American National filed a joint stipulation for dismissal of American National as a defendant on February 2, 2004.

On February 19, 2004, Roberts filed an amended complaint, naming American National as a defendant and seeking uninsured-motorist coverage under the American National policy covering the Escort. That policy contains the following provision:

"PART IV—UNINSURED MOTORIST

"COVERAGE J—UNINSURED MOTORIST COVERAGE

"We will pay damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle. The bodily injury must be caused by accident and result from the ownership, maintenance, or use of the vehicle...."

The policy provides the following definition for "insured person":

"`Insured person' means:

"(a) you or a relative;[¹]

"(b) any other person while occupying your insured car if such use is with the scope of your permission;...."

Likewise, the policy states: "`Occupying' means in, on, getting into, or out of."

On August 17, 2005, American National moved the trial court for a summary judgment as to the claim asserted against it in Roberts's amended complaint, which the trial court granted on January 10, 2006. Roberts filed her appeal with this Court on February 13, 2006. On August 7, 2006, this Court remanded the case for the trial court to enter a Rule 54(b), Ala. R. Civ. P., certification, making the judgment final. The appeal was returned to this Court on August 28, 2006.

On appeal, Roberts argues that the trial court erred in entering a summary judgment in favor of American National because, she says, the trial court incorrectly held that Roberts was not "occupying" the Escort when she sustained her injuries, as that term is defined by the insurance policy. Specifically, Roberts argues that under the terms of the policy she was "occupying" the Escort when she was struck by Vickers's automobile, even though she was outside the vehicle and standing in the roadway alongside Flint's vehicle.

In construing terms in an insurance contract, this Court must be mindful of the principle that "[a] contract of insurance will be construed strictly against the insurer and liberally in favor of the insured. Ambiguous provisions of an insurance policy will be construed most strongly against the insurer and in favor of the insured." Twin City Fire Ins. Co. v. Alfa Mut. Ins. Co., 817 So.2d 687, 695 (Ala.2001).

To support her argument that she was "occupying" the Escort when she was struck by Vickers's vehicle, Roberts presents a grammatical argument. She cites Oscar W. Larson, Co. v. United Capitol Insurance Co., 64 F.3d 1010, 1013 (6th Cir.1995), for the rule that "[i]n a sequence separated by commas, a modifier runs to the end of the phrase, or until the next comma." Thus, she contends, "getting" modifies only "into" in the definition of "occupying" in the policy and not "out of." She cites Pennington v. Ohio Casualty Insurance Co., 63 Ohio App.3d 527, 579 N.E.2d 507 (1989), in which the Court of Appeals of Ohio was faced with a question involving a policy that defined "occupying" as "`mean[ing] in, upon, getting in, on, out or off.'" 63 Ohio App.3d at 530, 579 N.E.2d at 508. In Pennington, the Court of Appeals of Ohio stated:

"If this definition [of `occupying'] is taken literally, `occupying' means anywhere `out' or `off' the vehicle, as the word `getting' does not modify either of these two words, but only the word `in.' There is no conjunction before `getting in' as there would be required for the word `getting' to modify `out,' `on,' and `off' as well as `in.' Accordingly, a person `out,' or `off' of the vehicle need not be `getting' in or `getting' out or `getting' off, but is within the policy definition of `occupying' when he is `out' or `off' of the vehicle so long as there is a reasonable relationship to the vehicle at the time. The relationship here would be leaving the vehicle."

63 Ohio App.3d at 531, 579 N.E.2d at 509.

I am not persuaded by Roberts's argument. Roberts's interpretation of the term "occupying" is limitless; it would allow coverage for an individual who was walking to and from the insured vehicle even if the vehicle were miles away. This is precisely the "strained or twisted reasoning" this Court in Twin City Fire Insurance Co., supra, counseled against using to create an ambiguity in an insurance policy. 817 So.2d at 692. Considering the word "occupying" "in the context of all other provisions," 817 So.2d at 691, I believe the intent of the contracting parties to this insurance policy was to provide coverage to an individual getting into or out of a vehicle.

In its summary-judgment order, the trial court cited this Court's decision in Cook v. Aetna Insurance Co., 661 So.2d 1169 (Ala.1995). In Cook, this Court was called upon to construe the meaning of the term "occupying" in the context of an uninsured-motorist provision. In Cook, the policy defined "occupying" as "`in, upon, getting in, on, out or off.'" 661 So.2d at 1171. Cook, an inmate at the Demopolis city jail, was allowed to work daily as a welder for a local company through a work-release program. Each day he walked across the street to a convenience store to get coffee for his vacuum bottle before the owner of the company arrived to take him to his welding job. On the morning in question, he had walked across the street to get coffee but had left his jacket and lunch box in the jail. After leaving the convenience store, Cook realized that the owner's vehicle was idling in the parking area in front of the jail. When he was approximately one foot from the owner's vehicle, he was struck by another vehicle. His lunch box and jacket were still in the jail. Cook sued the driver of the vehicle that hit him and the insurance company that insured the welding company, seeking damages under the uninsured-motorist provision of the policy covering the vehicle belonging to the welding company. Viewing all the facts in Cook's favor, this Court concluded that he was not "getting in" the vehicle at the time he...