State Farm Mut. Auto. Ins. Co. v. Berg

• Jurisdiction: Oregon
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Respondent, v. Leslie M. BERG, Appellant, and Suzanne K. Miller, Defendant. 16-82-05225; CA A30414.
• Citation: 70 Or.App. 410,689 P.2d 959
• Court: Oregon Court of Appeals
• Decision Date: 07 December 1984

Page 959

689 P.2d 959

70 Or.App. 410

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Respondent, v.Leslie M. BERG, Appellant and Suzanne K. Miller, Defendant.

16-82-05225; CA A30414.

Court of Appeals of Oregon.

Argued and Submitted June 11, 1984.

Decided October 24.1984

Reconsideration Denied Dec. 7, 1984.

Paul D. Clayton, Eugene, argued the cause for appellant.With him on the briefs was John L. Luvaas and Thomas M Christ, and Luvaas, Cobb, Richards & Fraser, Eugene.

William G. Wheatley, Eugene, argued the cause for respondent.With him on the brief was Jaqua, Wheatley, Gallagher & Holland, P.C., Eugene.

Before RICHARDSON, P.J., and WARDEN and NEWMAN, JJ.

WARDEN, Judge.

PlaintiffState Farm Mutual Automobile Insurance Company(State Farm) brought this proceeding for a declaratory judgment, seeking a declaration that the personal injury protection (PIP) coverage of its policy issued to defendant Miller does not afford benefits to defendant Berg or, if Berg is entitled to such benefits, plaintiff's obligation should be up to the limits of that coverage for only one accident, and any liability coverage benefits available to Berg under that policy should be reduced by any amount paid to her as personal injury protection benefits.Berg's answer asserted that she was covered under the personal injury protection provisions of the policy for each of two contacts with the Miller vehicle.¹In a counterclaim, she sought punitive damages and damages for emotional distress caused by alleged outrageous conduct of State Farm in its response to her claim.On State Farm's motion, the trial court dismissed Berg's outrageous conduct claim and, after trial on stipulated facts, declared that the policy afforded no PIP benefits to Berg and declined to reach the extent of coverage issues because they were moot.Berg assigns error to the trial court's declaration that she was not entitled to PIP benefits and to its dismissal of her counterclaim.We affirm in part, reverse in part and remand.

We summarize the stipulated facts: Berg was driving a vehicle southbound on Interstate Highway 5 when her vehicle collided head-on with a vehicle being operated northbound in the southbound lanes of the freeway.Berg was thrown from her vehicle by the impact and landed somewhere in the southbound lanes.A truck driver who witnessed the collision saw Berg try to lift her head and right arm but otherwise remain stationary.He then saw the Miller vehicle approach the accident scene, swerve, skid sideways, strike Berg and drag her a distance before stopping with her under a portion of it.The truck driver told Miller, "Get off of her," and Miller drove her car forward and over Berg.Miller felt a "thump" while her car was skidding, and a second "thump" while driving forward in compliance with the truck driver's directive.

The parties further stipulated that State Farm's insurance policy issued to Miller provided PIP coverage with a $25,000 per accident limit, and liability coverage with a similar limitation.They also agreed that, if Berg is entitled under that policy to the benefits of the PIP coverage for one accident, she is entitled to recover $25,000 under that coverage but that, if she is entitled to such benefits for two accidents, she is entitled to recover $50,000.

The trial court found that "DefendantLeslie M. Berg while lying upon the highway was struck by the vehicle of DefendantSuzanne K. Miller and thereafter struck again by the vehicle."It made the following declaration and conclusions of law:

"1.DefendantLeslie M. Berg was at the time of each contact between her and the vehicle of Defendant Miller "occupying" her own vehicle within the definition of the automobile insurance policy of Plaintiff, and therefore was not a "pedestrian" as defined therein and was not an insured under Plaintiff's policy;

"2.The personal injury protection coverage of the insurance policy issued by Plaintiff to DefendantSuzanne K. Miller, which was in effect at the time of the contacts of said vehicle with DefendantLeslie M. Berg affords no personal injury protection benefits to DefendantLeslie M. Berg;

"3.Since the first and second declarations and conclusions of law relieve Plaintiff from paying any personal injury protection benefits to DefendantLeslie M. Berg, the remaining declarations sought by Plaintiff's complaint as to the effect of such payment upon liability coverage of Plaintiff's policy are rendered moot and should be dismissed * * *."

Defendant Berg is entitled to PIP coverage under the policy issued by plaintiff to defendant Miller only if Berg was a "pedestrian" at the time she was struck by the Miller vehicle.Berg specifies error in the trial court's ruling that she was not a "pedestrian" for purposes of coverage under the PIP provisions of the policy and therefore not an insured entitled to PIP benefits.The pertinent provisions of the policy read:

"PERSONAL INJURY PROTECTION--COVERAGE P

" * * *

"We will pay in accordance with the Personal Injury Protection Act for bodily injury to an insured caused by accident resulting from the maintenance or use of a motor vehicle:

"1.Medical Expenses.* * *

" * * *

"Definitions

"Insured --means:

"1. you or any relative; and

"2. any other person who suffers bodily injury while occupying or through being struck as a pedestrian by your car or a newly acquired car * * *.

" * * *

"Personal Injury Protection Act --means sections 743.800 through 743.835 of the Oregon Insurance Code and any amendments.

"Pedestrian --means a person while not occupying a self-propelled vehicle."(Emphasis in original.)

The definition of "pedestrian" in the policy is identical to that in ORS 743.800(7)(d).The term "occupying" is not defined in the policy, but the parties agree that the applicable definition is that of ORS 743.800(7)(c):

" 'Occupying' means in, or upon, or entering into or alighting from."

The limited relevant question for our determination is whether, under the facts of this case, Berg was "occupying" her vehicle in that she was "alighting from" it at the time she was struck by Miller's car, and thus was not a "pedestrian" entitled to PIP benefits as an insured under the provisions of State Farm's policy issued to Miller.

No Oregon cases have considered the definition of "occupying" or "pedestrian" within the context of insurance policies and ORS 743.800.The parties, however, have cited us to a number of decisions from other jurisdictions construing similar or identical provisions.See, e.g., United States Fidelity & Guaranty Company v. Daly, 384 So.2d 1350(Fla.App.1980);Industrial Fire and Casualty Ins. Co. v. Collier, 334 So.2d 148(Fla.App.1976);Stoddard v. "AID" Insurance Co. (Mutual), 97 Idaho 508, 547 P.2d 1113(1976);Nelson v. Iowa Mutual Insurance Company, 163 Mont. 82, 515 P.2d 362(1973);Kantola v. State Farm Ins., 62 Ohio Misc. 11, 405 N.E.2d 744(1979).

We find those decisions which focus on the words "alighting from" most noteworthy.In Stoddard v. "AID" Insurance Co. (Mutual), supra, the insured, a paraplegic, had parked his car in a garage and begun to get out of it by hoisting himself into a wheelchair when he noted leaking gasoline; he traveled toward the rear of the car by grasping it and pulling himself along, inspected the gas tank cover, and then noticed flames.He was burned while leaving the garage.In determining whether the insured was covered under a policy provision that defined "occupying" as "in or upon or entering into or alighting from,"the court held that he was "occupying" the car in terms of "alighting from" it because he had not completed all acts that could reasonably be expected from those in similar situations, nor all acts which would normally be performed in leaving the car, and he had not embarked upon an entirely distinct course of conduct.(He had not taken his packages with him and had not closed the car door.)97 Idaho at 511, 547 P.2d 1113.Kantola v. State Farm Insurance, supra, was an action to recover for injuries sustained by a child who was struck by a motor vehicle while crossing the road after getting off a school bus.The issue before the court was whether the child was "occupying" the bus when injured; the policies of insurance defined "occupying" to include "alighting from."The court held that "alighting from" a school bus included reaching a place of safety, because that is a course of conduct reasonably incidental to leaving and alighting from a school bus, which was statutorily required to remain stopped as a protective measure until the child reached such a place.62 Ohio Misc. at 13, 405 N.E.2d 744.

The import of these cases appears to be that a person remains an "occupant" of a vehicle until the person has completed all acts reasonably expected to be performed under the circumstances or reasonably incidental to the disembarking process and commences a new course of conduct.State Farm urges us to apply that criterion to the facts of this case and to conclude that Berg was "occupying" her own vehicle at the time its policyholder, Miller, struck Berg.State Farm argues that, because Berg was struck by Miller's vehicle shortly after being thrown from her own vehicle, remained immobile close to her vehicle, and neither had reached nor sought a place of safety and had not embarked on a different course of conduct, she was still in the process of "alighting from" her own vehicle and, therefore, was not a "pedestrian" within the terms of the policy.

Our analysis of the situation, however, dictates a contrary conclusion.Following her involuntary ejection from her vehicle, Berg landed in a traffic lane where, except for attempting to lift her head and right arm, she remained stationary.From the time she landed on the highway until the time she was struck by Miller's...