Rose v. Allstate Ins. Co.

• Decision Date: 30 October 1989
• Docket Number: No. 88SC67,88SC67
• Parties: Daniel J. ROSE, Petitioner, v. ALLSTATE INSURANCE COMPANY, Respondent.
• Court: Colorado Supreme Court

Page 19

782 P.2d 19

Daniel J. ROSE, Petitioner, v. ALLSTATE INSURANCE COMPANY, Respondent.

No. 88SC67.

Supreme Court of Colorado,

En Banc.

Oct. 30, 1989.

Duane A. Cole, Fort Collins, for petitioner.

Stephen J. Jouard, Fischer, Brown, Huddleson & Gunn, P.C., Fort Collins, for respondent.

Laird Campbell, Richard W. Laugesen, Robert L. McGahey, Jr., Anderson, Campbell & Laugesen, Denver, for amicus curiae, State Farm Mut. Auto. Ins. Co.

Justice MULLARKEY delivered the Opinion of the Court.

We granted certiorari to review the judgment of the court of appeals in Rose v. Allstate Insurance Co., 754 P.2d 416 (Colo.Ct.App.1987), reversing the trial court's finding that the petitioner, who was injured in an accident involving two automobiles, was a "pedestrian" within the meaning of section 10-4-703(9), 4A C.R.S. (1987), of the Colorado Auto Accident Reparations Act (the Act). We affirm the judgment of the court of appeals, although for reasons other than those set forth in its opinion.

I.

The facts of this case are not in dispute. On the evening of November 19, 1983, the petitioner Daniel Rose, together with two companions, drove in a pickup truck from their homes in Cheyenne, Wyoming to spend the evening in Fort Collins. At about 2:00 a.m. the next morning, the men began their trip home. The driver of the pickup drove off onto the shoulder of the highway and stopped in order to remove his jacket. Rose also stepped out of the vehicle on the passenger side for the same purpose. Upon changing his mind, Rose began to re-enter the pickup when it was struck by a vehicle driven by the insured of the respondent Allstate Insurance Company (Allstate) resulting in injury to Rose. The exact position of Rose at the time of impact was stipulated by the parties: Rose had one hand on the dashboard, one hand on the armrest, and was in the process of re-entering the vehicle. Whether Rose had both feet on the ground at the time of the collision or whether one foot was in the air is uncertain. However, it is undisputed that Rose intended to re-enter the vehicle and return to Cheyenne.

II.

A.

The Auto Accident Reparations Act (adopting the so-called "no-fault" insurance plan) requires every owner of a motor vehicle who operates or who knowingly permits another to operate that motor vehicle on the highways of this state to have an insurance policy which complies with the provisions of the Act. Section 10-4-705(1), 4A C.R.S. (1987). Among other things, a complying policy must provide personal injury protection (PIP) benefits. Section 10-4-706(1)(b) and (c). These benefits provide "compensation without regard to fault" up to the statutory limits to cover costs such as medical expenses and rehabilitative procedures for injuries arising out of the use or operation of the motor vehicle. Id.

There are three potential sources of PIP benefits for an injured person in Rose's circumstances. First, if the driver of the vehicle in which the injured person is riding has the appropriate coverage as required by section 10-4-705(1), 4A C.R.S. (1987), then under section 10-4-707(1)(c) such coverage would extend to the injured person if he is injured in an accident involving that vehicle whether he is a pedestrian or an occupant. Second, if the injured person himself has complying insurance for another vehicle then such insurance would also cover his injuries under section 10-4-707(1)(a), 4A C.R.S. (1987). Third, if the injured person is a pedestrian and is injured in an accident involving a motor vehicle, then, under section 10-4-707(1)(c), that vehicle's insurance would cover his injuries. Section 10-4-707(3) establishes procedures to be followed in the event of overlapping coverage.

The reason for this dispute is that if Rose was a pedestrian at the time of the accident, then Allstate, as the insurer of the vehicle which struck him, must pay him PIP benefits under its insurance policy with its insured. The statutory basis for Rose's claim that Allstate must pay him PIP benefits is section 10-4-707 of the Act which states in relevant part:

Section 10-4-707. Benefits payable. (1) The coverages described in section 10-4-706(1)(b) to (1)(e) shall be applicable to:

... (c) Accidental bodily injury arising out of accidents occurring within this state sustained by any other person while occupying the described motor vehicle with the consent of the insured or while a pedestrian if injured in an accident involving the described motor vehicle.

Thus, if Rose was "occupying" the pickup of his Wyoming companion at the time of this accident and therefore was not a "pedestrian," then Allstate is not liable to pay him PIP benefits and Rose's recourse for compensation would be to the driver of the pickup or the driver's insurer. In this case, the driver apparently was not insured and may be personally liable. See § 10-4-705(2), 4A C.R.S. (1987) (owner of vehicle who fails to have complying policy in force shall be personally liable for payment of benefits).

The problem for both the court of appeals and for this court is the lack of specific statutory direction in interpreting the terms "occupying" and "pedestrian". The term "occupying" is not separately defined by statute. The term "pedestrian" is defined by section 10-4-703.

Definitions. As used in this part 7, unless the context otherwise requires:

. . . . .

(9) "Pedestrian" means any person not occupying or riding in or upon a motor vehicle or machine operated by a motor or engine (emphasis added).

In interpreting the meaning of the two terms, we must consider how defining "occupying" will determine the definition of "pedestrian." We previously considered the definition of the term "pedestrian" as used by section 10-4-703 in Trinity Universal Insurance Co. v. Hall, 690 P.2d 227 (Colo.1984). In Trinity we held that the term "pedestrian" includes any person not occupying or riding in or upon a motor vehicle who is injured in an accident involving that motor vehicle. Trinity, 690 P.2d at 230. In Trinity we concluded that a person was a pedestrian when she was patronizing a truck used as a refreshment stand and was injured by the collapse of an awning attached to the truck. Trinity did not define the term "occupying" and does not answer the question of whether the term "occupying" includes the act of entering into or alighting from a motor vehicle.

The district court found that because Rose was not completely in or out of the vehicle, he was a pedestrian. The court of appeals, in reversing the district court, adopted a test used by the Pennsylvania courts to distinguish pedestrians from occupants. Under this test "an injured person is considered to be occupying a vehicle in which he has been riding until all connection with it is severed and he has thereby become 'highway oriented' as opposed to 'vehicle oriented.' " Rose, 754 P.2d at 417 (quoting Tyler v. Insurance Co. of N. Am., 311 Pa.Super. 25, 457 A.2d 95 (1983)). The court of appeals found that Rose was "vehicle oriented," and thus was "occupying" the Wyoming vehicle.

The court of appeals' test requires a court to examine the intent of the injured person in order to determine whether he is "vehicle oriented" or "highway oriented." Thus, under the Pennsylvania court's application of the test, a person who was 97 feet away from his vehicle when he was killed was "vehicle oriented" and therefore an occupant because he intended to return to the vehicle. Contrisciane v. Utica Mut. Ins. Co., 312 Pa.Super. 549, 459 A.2d 358 (1983).

While we agree that Rose was an occupant of the pickup when it was struck by Allstate's insured, we decline to adopt the Pennsylvania test followed by the court of appeals. If the pedestrian or occupant status of an injured person were made to turn on his subjective intent, it would be difficult both for insureds and insurers to know whether the injured person is properly classified as a pedestrian or an occupant. Under the Act's no-fault principles, classification of the injured person normally will be determinative only of which insurer must pay for a party's injuries. 1 M. Bender, No-Fault and Uninsured Motorist Automobile Insurance 7-23 (1985). A nebulous standard, based on the intent of the injured person, would encourage disputes between insureds and insurers as well as among insurers, contrary to the clear intent of the legislature that benefits be paid promptly. See § 10-4-708, 4B C.R.S. (1987).

Our responsibility is to give effect to a legislative enactment according to its plain and obvious meaning. Trinity, 690 P.2d at 230. However, as the many cases cited to this court by the parties show, the terms "occupying" or "occupant" lend themselves to a variety of plausible interpretations. See, Annotation, What Constitutes Occupancy of a Motor Vehicle for Purposes of No-Fault Automobile Insurance Coverage, 35 A.L.R.4th 364 (1985). The word "occupy" is defined in the dictionary as "to fill up [a place or extent]." Webster's New International Dictionary 1561 (3d ed. 1986).

In the context of "occupying" an automobile, some courts have interpreted the word quite broadly to include numerous acts done outside the automobile. See Newcomb Hosp. v. Fountain, 141 N.J.Super. 291, 357 A.2d 836 (Law Div.1976) (person who left vehicle at service station injured watching attendant add water to the radiator); State-Wide Ins. Co. v. Murdock, 31 A.D.2d 978, 299 N.Y.S.2d 348 (1969) (passenger walking to front of vehicle to assist in starting); Pagan v. Motor Vehicle Accident Indem. Corp., 51 Misc.2d 664, 273 N.Y.S.2d 740 (Sup.Ct.1966) (working on a battery). Other courts have given a more narrow definition to the term "occupant" or "occupying". See Thomas v. Travelers Ins. Co., 87 Misc.2d 136, 384 N.Y.S.2d 610 (Sup.Ct.), aff'd 54 A.D.2d 608, 387 N.Y.S.2d 498 (1976) (person returning to auto from restaurant not occupant because he was not actually entering into automobile).

Many of the courts which interpreted "occupant" or "occup...