Tata v. Nichols

Decision Date11 January 1993
Citation848 S.W.2d 649
PartiesPatrick John TATA, Plaintiff-Appellant, v. Denver D. NICHOLS, Denise Horton, Larry Glidewell and Glidewell's, Inc., Defendants-Appellees.
CourtTennessee Supreme Court

Frank Holloman, Jr., Memphis, for plaintiff-appellant.

James B. Summers, Jeffrey L. Jordan, Memphis, for Allstate Ins. Co.; Neely, Green, Fargarson & Brooke, of counsel.

J. Mark Griffee, James S. Strickland, Jr., Glankler, Brown, Gilliland, Chase, Robinson & Raines, Memphis, for Maryland Cas. Co.

OPINION

REID, Chief Justice.

This case presents an appeal by the plaintiff, Patrick John Tata, from the adjudication that he is not an insured within the meaning of insurance policies issued by the defendants. It is an action for personal injuries resulting from an automobile accident involving three vehicles. The plaintiff claims coverage under the uninsured motorist provisions of the policies covering two of the vehicles. The third vehicle was not insured. The Court of Appeals affirmed the judgment of the trial court granting summary judgment for the defendants. The record does not support the summary judgment.

For purposes of the summary judgment motions, the parties stipulated the facts. A 1982 Nissan, owned by defendant Denise Horton and insured by Allstate Insurance Company, became disabled while travelling northbound on I-240 in Memphis and was parked off the travelled portion of the highway. The plaintiff later rode with the defendant Larry Glidewell in Glidewell's 1986 Jeep Cherokee, insured by Maryland Casualty Company, to the location where the Horton vehicle was stopped. Plaintiff and Glidewell positioned the Glidewell vehicle against the flow of traffic, "nose-to-nose" with the Horton vehicle, on the shoulder of the highway.

The plaintiff and Glidewell examined the Horton vehicle for several minutes trying to determine the mechanical problem that had caused it to become disabled. One of them tried unsuccessfully to start the vehicle. They then raised the hood so that they could try to "jump-start" the Horton vehicle from the Glidewell vehicle. The plaintiff was standing between the two vehicles, leaning under the open hood of the Horton vehicle while attaching one end of a set of battery cables to the battery of the Horton vehicle, and Glidewell was standing to the side and leaning under the hood of the Glidewell vehicle in order to connect the other end of the cables to the battery on Glidewell's vehicle, when the defendant Nichols, the uninsured motorist, collided with the rear of the Horton vehicle. Plaintiff was crushed between the vehicles and seriously injured.

Rule 56.03 of the Tennessee Rules of Civil Procedure provides that summary judgment may be granted where the evidence before the Court "[shows] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Here, the facts are stipulated; only a question of law is presented.

As required by T.C.A. § 56-7-1201 et seq., the policies on the Horton and Glidewell vehicles provide uninsured motorist coverage for "anyone else occupying a covered auto...." (Emphasis added.) The Maryland Casualty Company policy on the Glidewell vehicle defines "occupying" as "in, upon, getting in, on, out or off" the covered vehicle; the Allstate policy on the Horton vehicle similarly defines the word "occupying" as "in or upon or entering into or alighting from" a covered vehicle. The issue is whether, for purposes of summary judgment, the plaintiff was "upon" either or both vehicles at the time of his injury, and was, therefore, an "insured" within the meaning of the policies.

The analysis used in construing insurance policies is well settled. "Insurance contracts like other contracts should be construed so as to give effect to the intention and express language of the parties." Blaylock & Brown Construction, Inc. v. AIU Insurance Co., 796 S.W.2d 146, 149 (Tenn.App.1990). Words in an insurance policy are given their common and ordinary meaning. Where language in an insurance policy is susceptible of more than one reasonable interpretation, however, it is ambiguous. See e.g., Moss v. Golden Rule Life Insurance Co., 724 S.W.2d 367, 368 (Tenn.App.1986). Where the ambiguous language limits the coverage of an insurance policy, that language must be construed against the insurance company and in favor of the insured. Allstate Insurance Co. v. Watts, 811 S.W.2d 883, 886 (Tenn.1991).

The trial court and the Court of Appeals sustained both defendants' summary judgment motions, on the grounds that the plaintiff was not "upon" either vehicle at the time of his injury. In affirming the action of the trial court in granting summary judgment in favor of both insurance companies, the Court of Appeals applied its interpretation of similar language in the case of Bowlin v. State Farm Mutual Automobile Insurance Co., 46 Tenn.App. 260, 327 S.W.2d 66 (1959). In Bowlin, the plaintiff was driving his pickup truck when it stalled in the snow. When the plaintiff got out and started pushing the truck, he hurt his back. The plaintiff's insurance policy contained a medical payment clause agreeing " 'to pay reasonable expenses ... to ... each person who sustains bodily injury, caused by accident, while in or upon, entering into or alighting from ... the automobile.' " Id., 327 S.W.2d at 67. That court found that these words were not ambiguous and narrowly construed the clause. It held that though the plaintiff was pushing the truck from the rear of the cab with his shoulder and hands, he "was not 'in or upon' the truck within the language and meaning of the policy." Id. at 68. Applying the holding of Bowlin, the Court of Appeals held that in the case at bar, the definitions of "occupying" contained in the policies were unambiguous and should be given their plain and ordinary meaning. The court found that because plaintiff was not actually "in," in the process of "getting in, on, out, or off," or "upon" either of the cars, he could not be considered an insured under the policies. For the reasons which are set forth hereafter, the rationale of Bowlin is not applicable to the case before the Court.

The complete meaning of the term "upon," used in both policies to define "occupying," is uncertain. The many different meanings given the word in the cases which have considered this issue, demonstrate that the word has no precise meaning and is, therefore, sufficiently ambiguous under the circumstances of this case to require construction. As the Illinois court stated when interpreting a similar insurance clause:

As related to the instant case, it is the use of the word "upon" which creates an ambiguity. It cannot mean that the insured, to be within the meaning of the clause, had to be couched on the roof of the car or on the running board or sitting on the hood. It must connote some physical relationship between himself and the car that enlarged the area defined by the words "entering or alighting" and the word "in."

Wolf v. American Casualty Co., 2 Ill.App.2d 124, 118 N.E.2d 777, 780 (1954).

Having determined that the term "upon" requires construction, the issue now is whether the plaintiff's activity in relation to Glidewell's Jeep and/or Horton's Nissan is encompassed by that term. Several jurisdictions have found that similar circumstances do not come within the statutory definition of "occupying." For example, in Georgia, the court found that the claimant must be physically present in the car at the time of the accident to be covered under the definition. Holsey v. Allstate Insurance Co., 193 Ga.App. 782, 389 S.E.2d 11 (1989), cert. denied (1990). In Connecticut and West Virginia, the courts have held that physical contact with the insured car is necessary to be considered "upon" the car. Testone v. Allstate Insurance Co., 165 Conn. 126, 328 A.2d 686 (1973); Green v. Farm Bureau Mutual Automobile Insurance Co., 139 W.Va. 475, 80 S.E.2d 424 (1954). Pennsylvania and Virginia courts have held that even if there was physical contact with the insured car at the time of the accident, a claimant must either previously have been inside the car or have intended to get inside the car, to be considered "upon" the car. Downing v. Harleysville Insurance Co., 412 Pa.Super. 15, 602 A.2d 871 (1992); Pennsylvania National Mutual Casualty Insurance Co. v. Bristow, 207 Va. 381, 150 S.E.2d 125 (1966).

Other jurisdictions, however, have not defined "occupying" so narrowly, and the majority of jurisdictions hold that "occupying," as defined in the policies before the Court, includes those who can establish a certain "relationship" with the insured car at the time of the accident. In setting out the criteria to consider in determining whether this relationship exists, courts have looked to factors such as the proximity between the claimant and the insured car in time, distance, and geography, as well as the intent of the claimant. These jurisdictions have struggled to develop an analysis which determines a "rational limit" to the activity that may be said to be encompassed within the term "occupying."

In Nickerson v. Citizens Mutual Insurance Co., 393 Mich. 324, 224 N.W.2d 896 (1975), the plaintiff was a passenger in a car that stalled and was pushed to the side of the road. The plaintiff was injured while standing in front of the car, when it was struck from behind by an uninsured motorist. The stalled car's uninsured motorist clause covered the plaintiff if he was "in or upon or entering into or alighting from" the car. The court rejected the defendant's argument that the plaintiff must be in physical contact with the car to recover. The court concluded that the plaintiff, "due to his immediate prior 'occupying' of the insured vehicle and his subsequent injury arising out of the use or repair of the same vehicle, was an 'assured' under the policy." Id., 224 N.W.2d at 899. (This...

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