Sayers v. Safeco Ins. Co. of America, 80-436
| Decision Date | 26 May 1981 |
| Docket Number | No. 80-436,80-436 |
| Citation | 628 P.2d 659,192 Mont. 336 |
| Parties | , 25 A.L.R.4th 1 Donald W. SAYERS et al., Plaintiffs and Respondents, v. SAFECO INSURANCE COMPANY OF AMERICA, Allstate Insurance Company, and Automobile Club Insurance Company, Defendants and Appellants. |
| Court | Montana Supreme Court |
Gene A. Picotte, Clancy, for defendants and appellants.
D. L. Holland, Corette Law Firm, Henningsen, Purcell & Genzberger, Butte, Kaylene M. Rubick, Richmond, Cal., Anderson, Brown Law Firm, Billings, William N. Geagan, Butte, for plaintiffs and respondents.
Safeco Insurance Company (Safeco) appeals from an adverse judgment of the District Court of the Second Judicial District, Silver Bow County. The parties stipulated to a bifurcated proceeding and submitted two issues for adjudication, reserving the right to a jury trial on damages if necessary. The issues submitted were:
1. Whether or not the plaintiff, Donald Sayers, was, at the time and place of the accident, "occupying" the automobile owned by Gary J. Galetti within the definition of the term "occupying" as defined in the insurance policy issued to Galetti by Safeco.
2. Whether Sayers may stack the uninsured motorist limits of liability provided by policies issued by Safeco to Galetti on automobiles other than the automobile Sayers was "occupying" at the time of the accident.
The District Court decided Sayers was (1) "occupying" the Galetti vehicle and (2) entitled to stack the uninsured motorist limits of liability on the Safeco policies covering automobiles not involved in the accident. We concur with the District Court.
Donald Sayers was injured in an accident involving three cars, one of which was owned by Charles Storm. The accident occurred October 4, 1978, on Kaw Street in Butte, Montana.
Storm had asked Sayers to tune-up his 1966 Mercury automobile. Sayers completed the tune-up and advised Storm he should run the engine to clean the carburetor. Storm agreed and left to buy some gasoline. However, the vehicle ran out of gas before he reached a service station. He walked the short distance back, obtained a can of gasoline and battery jumper cables from Sayers and rode back to his stalled vehicle with a man named George Yates. They were unable to start Storm's car and Storm returned for Sayers' help.
Sayers, Storm and Gary J. Galetti then drove to Storm's car in Galetti's 1972 Chevrolet Suburban intending to use the vehicle to jump-start the car. Galetti parked ten to twelve feet in front of and facing Storm's car to facilitate the use of his vehicle's battery and the jumper cables. After the men got out, Storm poured some of the gasoline into his tank, got in his car and waited to turn the ignition key. Sayers was standing between the vehicles, leaning under the hood of Storm's car for the purpose of priming the carburetor with the remaining gas in the can, when a car driven by Kaylene Rubick struck the rear of Storm's car propelling it forward. Sayers was pinned between the Galetti and Storm vehicles and was severely injured.
Kaylene Rubick was uninsured, however, Sayers, Storm and Galetti had the following uninsured motorist (UM) coverage:
Insured Insurer UM Limit No. of Total
----------- ---------------- -------- -------- -------
Vehicles
--------
(1) Sayers Automobile Club $25,000 2 $50,000
Insurance Co
(2) Galetti Safeco Insurance $25,000 2 $50,000
(3) Storm Allstate Ins. $25,000 3 $75,000
Safeco contends Sayers was not "occupying" the Galetti vehicle under the policy definition. Safeco supports its contention with numerous cases from other jurisdictions which have construed the components of the seemingly universal insurance policy definition of "occupying" which by policy definition was "in or upon or entering into or alighting from." The cases cited by Safeco contain a common element of physical contact with the insured vehicle as the basis for finding coverage. Safeco contends Sayers was not "occupying" the Galetti vehicle as a matter of law because he was at least ten feet from the Galetti vehicle at the time of the accident.
The "physical contact" test for determining whether one is an occupant is not determinative under Montana law. This Court has developed a "reasonable connection" test. The issue here is whether Sayers' activities at the time of the injury were so reasonably connected to the Galetti vehicle that, under the law, Sayers could be said to be an occupant within the policy's meaning. Nelson v. Iowa Mut. Ins. Co. (1973), 163 Mont. 82, 515 P.2d 362.
In Nelson, an executor brought an action against the decedent's automobile insurer for payment of funeral expenses under the decedent's policy. The decedent's car had slipped off an icy country road during a ground blizzard....
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