United Farm Bureau Mut. Ins. Co. v. Pierce

Decision Date15 June 1972
Docket NumberNo. 272A61,No. 1,272A61,1
Citation152 Ind.App. 387,283 N.E.2d 788
PartiesUNITED FARM BUREAU MUTUAL INSURANCE COMPANY, Defendant-Appellant, v. Bill PIERCE, Plaintiff-Appellee
CourtIndiana Appellate Court

Lee Pettay, McNutt, Hurt & Blue, Martinsville, for defendant-appellant.

James H. Kelly, Martinsville, for plaintiff-appellee.

ROBERTSON, Presiding Judge.

The plaintiff-appellee's (Pierce's) automobile became stuck in the snow. Pierce got out of the automobile and, while another was at the wheel, attempted to free the vehicle. While pushing on a front fender he slipped, cutting the fingers on his left hand.

Pierce had an insurance policy with the defendant-appellant (Farm Bureau) that included medical payment provisions applicable while he was occupying the vehicle. Occupying was defined in the policy as being 'in or upon, entering into or alighting from' the automobile. Farm Bureau denied Pierce's claim for medical payments. Pierce prevailed in an action for declaratory judgment by way of a summary judgment. The trial court held:

'1. Plaintiff was insured for medical coverage arising out of the occupying of a vehicle.

'2. At the time of his injury plaintiff was within the occupying clause of the policy set out in plaintiff's Exhibit 'A".

Farm Bureau now appeals the overruling of its motion to correct errors which specified the judgment was contrary to the law and the evidence.

The question presented is whether or not the word 'upon' contained in the definition of 'occupying' places Pierce within the provisions of the policy. As may be expected there is a division in judicial interpretation of what constitutes 'in or upon' as used in the policy clause in the instant case.

Farm Bureau cites us to several authorities from foreign jurisdictions involving interpretation of the same or similar exclusionary clause under the same or similar fact situations. Those authorities hold that the insured was not 'in or upon' the vehicle. In a factually similar case, the court said:

'We think that the language employed in stating the coverage is reasonably plain and unambiguous, and to say that the insured was 'upon' the truck when he was behind pushing it, would be placing a distorted meaning upon the language used. He was neither 'in' nor 'upon' the truck at the time.' Bowlin v. State Farm Mutual Automobile Insurance Co. (1959), 46 Tenn.App. 260, 327 S.W.2d 66, at p. 67.

Also, where the insured slipped in some mud while holding onto an automobile for support, a Texas Court said:

'We cannot say she was 'in or upon' the car simply because she put her hand upon it to steady (herself) . . .. Moreover, we reject plaintiff's contention that 'physical contact' alone is the test as to whether an insured is 'in or upon' an automobile.' Ferguson v. Aetna Casualty & Surety Company (Tex.Civ.App.1963), 369 S.W.2d 844, at p. 846.

Pierce relies upon the principle that if a contract of insurance is ambiguous then it shall be construed in favor of the insured. Patton v. Safeco Insurance Company of America (1971), Ind.App., 267 N.E.2d 859; United States Fidelity and Guaranty Co. v. Baugh (1970), Ind.App., 257 N.E.2d 699; and Town & Country Mut. Ins. Co. v. Owens (1968), 143 Ind.App. 522, 241 N.E.2d 368.

In resolving the issue it is necessary to determine if the phrase in question is ambiguous.

'It is elementary in the construction of insurance policies that where insurance contracts are so drawn as to be ambiguous or require interpretation or are fairly susceptible of two different constructions so that reasonably intelligent men on reading them would honestly differ as to their meaning, the courts will adopt that construction most favorable to the insured.' (Our emphasis) Masonic Acc. Ins. Co. v. Jackson (1929), 200 Ind. 472, at p. 481, 164 N.E. 628, at p. 631.

'Accordingly the test to be applied in ascertaining the ambiguity, or lack thereof, of the insurance contract before this court, is whether or not it is susceptible of more than one interpretation. Furthermore, in order to constitute ambiguity so as to be susceptible of more than one interpretation, it must be shown that reasonably intelligent men on reading the insurance contract would honestly differ as to its meaning. Masonic supra. This, however, does not mean that because controversy exists and a party asserts one interpretation, while the other denies it, that ambiguity has affirmatively been shown to exist.' (Citing authorities.) O'Meara v. American States Insurance Co. (1971), Ind.App., 268 N.E.2d 109, at 111.

In determining whether ambiguity exists we find the observations in Wolf v. American Cas. Co. of Reading, Pa. (1954), 2 Ill.App.2d 124, 118 N.E.2d 777, most helpful:

'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.' In the two cases which decided against liability, the plaintiff had no physical contact with his own car.' (Citing authorities). 118 N.E.2d 777, at p. 780.

The court was referring to a denial of liability in Ross v. Protective Indemnity Co. (1948), 135 Conn. 150, 62 A.2d 340, (insured struck while responding to a call of nature), and New Amsterdam Casualty Co. v. Fromer (1950 D.C.Mun.App.), 75 A.2d 645, (insured struck while returning to his car after talking to another driver). The court continued showing liability existed when the insured was injured when fending off his moving car (Sherman v. New York Casualty Co. (1951), 78 R.I. 393, 82 A.2d 839); tying on a front bumper that had fallen (Lokos v. New Amsterdam Casualty Co. (1949), 197 Misc. 40, 93 N.Y.S.2d 825); replacing a spare tire in the trunk (Madden v. Farm Bureau Mutual Automobile Ind. Co. (1948), 82 Ohio App. 111, 79 N.E.2d 586); and when clinging to a moving car (Young v. State Auto Ins. Ass'n (1954), 72 Pa.Dist. & Co.R. 394). In each of the aforementioned instances, the insured had physical contact with his vehicle.

It would further appear that the 'entering or alighting' cases required an intent coupled with an overt act necessary to enter or exit the vehicle. Physical support may or may not be a factor to be considered. See Goodwin v. Lumbermens Mut. Cas. Co. (1952), 199 Md. 121, 85 A.2d 759, and Wolf v. American Cas. Co. of Reading, Pa., supra. The majority of 'in or upon' cases appear to rely primarily upon physical support.

We are of the opinion that Pierce was 'upon' his car at the time of the accident and thereby covered by the policy of insurance.

Judgment affirmed.

LYBROOK, J., concurs.

LOWDERMILK, J., dissents with opinion.

LOWDERMILK, Judge (dissenting).

I find it necessary to dissent from the majority opinion of my colleagues.

Plaintiff-appellee had a policy with the defendant-appellant insurance company (Farm Bureau), which included medical payment provisions applicable while he was occupying the vehicle. As said in the majority opinion, 'occupying' was defined in the policy as being 'in or upon, entering into or alighting from' the automobile. The claim of plaintiff-appellee for medical payments was denied. However, he prevailed in an action for declaratory judgment by way of summary judgment.

Again, reiterating the statement of the majority opinion, the question presented is whether the word 'upon' contained in the definition of 'occupying' places plaintiff-appellee within the provisions of the policy.

The court, in awarding summary judgment, held that the plaintiff was insured for medical coverage arising out of the occupancy of a vehicle and, too, at the time of his injury plaintiff was within the occupying clause of his policy as set out in plaintiff's Exhibit 'A'.

The majority opinion relies upon cases from Tennessee, Texas, Pennsylvania, Connecticut, Washington, D.C.Mun.App., Illinois, New York Supreme, and Ohio.

It is elementary in Indiana that a contract of insurance which is ambiguous shall be construed in favor of the insured and is so well settled it actually needs no citation of authority. However, I agree with the Indiana authorities cited in the majority opinion, as I was the author of the opinion in United States Fidelity and Guaranty Co. v. Baugh (1970), Ind.App., 257 N.E.2d 699.

Two Indiana cases relied upon for the affirming of the trial court in the majority opinion are Masonic Accident Insurance Company v. Jackson (1929), 200 Ind. 472, at p. 481, 164 N.E. 628, at p. 631, and also the case of O'Meara v. American States Insurance Co. (1971), Ind.App., 268 N.E.2d 109, at p. 111.

In the Masonic case, supra, the clause in said policy pertaining to indemnity thereunder was that there would be no indemnity payable for any death or disability that may have been caused or contributed to, wholly or in part, by any of the following causes: '. . . while engaged in aviation or ballooning, . . .'

This case cited the case of Benefit Assn. Ry. Employees v. Hayden (1927), 175 Ark. 565, 299 S.W. 995, which case held that one killed while a passenger in an aeroplane was not engaged in aeronautics. The trial court, in that case, declined to make a finding that the decedent, Paul Trotter, who was a telegraph operator, received his fatal injury while riding in an aeroplane as a passenger; that riding as a passenger in an aeroplane does not constitute an exception or excepted risk, under the terms of the policy sued upon.

'. . . 'but the phrase 'engaged in aeronautics' implies that the risk excepted is for the insured to have taken part in the operation of the aeroplane as an occupation or otherwise, and that merely riding as a passenger therein does not come within the exception of the policy.' . . . judgment was rendered against the insurance...

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