Robson v. Lightning Rod Mut. Ins. Co.

• Decision Date: 28 September 1978
• Citation: 393 N.E.2d 1053,59 Ohio App.2d 261,13 O.O.3d 268
• Parties: , 13 O.O.3d 268 ROBSON, Appellee, v. LIGHTNING ROD MUTUAL INSURANCE COMPANY, Appellant.
• Court: Ohio Court of Appeals

Page 261

59 Ohio App.2d 261

393 N.E.2d 1053, 13 O.O.3d 268

ROBSON, Appellee, v. LIGHTNING ROD MUTUAL INSURANCE COMPANY, Appellant.

Court of Appeals of Ohio, Tenth District, Franklin County.

Sept. 28, 1978.

Syllabus by the Court

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 a claimant at the time of an accident should take into account the immediate relationship the claimant had to the vehicle, within a reasonable geographic perimeter.

Federico, Myers & Enz, and Mason Evans, IV, Columbus, for appellee.

Siemer & Boynton, Columbus, for appellant.

McCORMAC, Judge.

Plaintiff commenced a declaratory judgment action in Franklin County Common Pleas Court alleging that, as a result of an accident involving an uninsured motorist, he was eligible for benefits under the uninsured motorist coverage of policy No. LA73666, issued to John D. Zaleski, and that defendant refused to acknowledge coverage. Plaintiff demanded that the court declare the respective rights of the parties and determine if uninsured motorist coverage is available for plaintiff.

Defendant answered, admitting that plaintiff was struck and injured by an uninsured motorist at the time in question, but denying that coverage under the policy is applicable to plaintiff.

Plaintiff moved for summary judgment, attaching in support thereof an affidavit of plaintiff, stating that plaintiff was a passenger in an automobile operated by John D. Zaleski, and that, while en route to another location, Zaleski and he stopped at plaintiff's house to pick up a stereo. Plaintiff stated that he was placing the stereo in the open trunk of Zaleski's vehicle and moving other items in the trunk, when he was struck from the rear by an automobile operated by an uninsured motorist.

Plaintiff's version of the accident is not contested, nor is the fact that Zaleski was insured by defendant under a policy containing uninsured motorist coverage extending to any person "occupying" the insured vehicle. The policy defines occupying as "in or upon, entering into or alighting from."

There are no disputes of facts. The sole question is whether or not plaintiff was "in or upon, entering into or alighting from" the insured vehicle while loading the stereo set into the trunk of the automobile prior to proceeding to another location as a passenger in the automobile.

The trial court made an excellent analysis of the issue and found that plaintiff fitted in the policy definition of "occupying" the vehicle at the time the injury was inflicted and granted a judgment in favor of plaintiff. (59 Ohio Misc. 61, 393 N.E.2d 1056.)

Defendant has appealed, setting forth the following assignments of error:

"I. The trial court erred in finding that plaintiff-appellee was 'upon' or 'entering into' the vehicle insured under the insurance policy issued by defendant-appellant.

"II. The court erred in holding as a matter of law and in finding that the plaintiff-appellee was an insured under the insurance policy issued by defendant-appellant to John D. Zaleski in covering the automobile into which plaintiff-appellee had loaded a stereo.

"III. The trial court erred in granting final judgment to plaintiff-appellee and against defendant-appellant."

Appellant's assignments of error are combined for discussion as they are interrelated.

Appellant argues that the case should not be decided based upon appellee's use of the automobile, since he was not the named insured, but his status as an insured should be based upon his use I. e., his "occupying" the vehicle.

Occupying, defined as "in or upon, entering into or alighting from," has been the subject of repeated litigation in the area of uninsured motorist and medical payment coverage. Cases involving the interpretation of whether a person is "occupying" a vehicle are compiled in Widiss, A Guide To Uninsured Motorist Coverage 32, Section 2.11 (Supp.1978), and the annotation, Automobile Insurance: When is a person "occupying" an automobile within meaning of medical payments provision? 42 A.L.R.3d 501.

In studying the spectrum of factual situations which have arisen, it is apparent that determining whether a person is "occupying" a vehicle is not as easy as it might appear at first blush. For example, in the instant case, plaintiff was partially "in" the insured vehicle as one or both of his arms and part of his upper body was extended into the trunk of the vehicle. Appellee concedes that had plaintiff's entire body been in the trunk, even though in an unusual portion of the vehicle, that plaintiff would fit within the coverage. When a person is "entering into or alighting from" a vehicle is not always easy to determine. Has one completed alighting from a vehicle when he is no longer in contact with the vehicle? When does one commence entering a vehicle as he approaches the car or when he actually makes contact with the car? These and other similar questions have been analyzed by appellate courts throughout the country with varying results.

In construing the case, there appear to be three possible approaches taken in deciding whether there is coverage.

The first method of construction is a rather strict interpretation of the word "occupying" as defined in the policy. By that method one would be held to be "in" the automobile or "entering or alighting from" the vehicle only when he is actually in that position, as these terms are understood by the average...