By Mike A. D’Amico
Is physical contact with the insured vehicle necessary for a person, other than a named insured, to be “occupying” a motor vehicle under a UIM policy? The majority of jurisdictions across the country hold that physical contact is not a requirement. Instead these courts eschew a hard and fast rule mandating contact in favor of a multi-factorial approach which better lends itself to fulfilling the laudable purpose of UIM coverage. This multi-factorial approach avoids results between comparable fact patterns which confound fairness and reasoned justice.
Consider, for example, a boyfriend who was given permission to use his girlfriend’s car to run to the local convenience store to buy butter needed for Thanksgiving dinner. Then, while returning to the car after purchasing the butter, and an arm’s length from the door, is struck and seriously injured by an underinsured car. Assuming the girlfriend’s UIM policy defines “occupying” as “in, upon, getting in, on, out of or off” the car, should the boyfriend be able to recover UIM benefits under this policy? If physical contact is required then the answer is no. What if the boyfriend’s finger was one inch from the door handle but had not yet clutched the handle when he was struck? Again, if physical contact is required then the answer is no. Now suppose his finger had actually just touched the handle right at the moment of impact? Then under the physical contact rule the answer suddenly becomes yes. Such bizarre results occur by applying a hard and fast rule which turns upon physical contact. Similar fact patterns abound as, for instance, when employees are injured while using their employer’s vehicles and when friends are injured when not actually inside another’s car.
The purpose of UIM coverage is to allow recovery of damages that would have been recoverable had the tortfeasor maintained a policy, in the case of uninsured motorist coverage, or an adequate policy of liability insurance, in the case of underinsured motorist coverage. As stated in Gohel v. Allstate Insurance Co., 61 Conn.App. 806, 816-817(2001), “the public policy embodied in these statutes favor indemnification of accident victims unless they are responsible for the accident”. The Gohel Court also stated that the UIM statutes are “remedial in nature and designed to protect people injured by [uninsured and underinsured] motorists” and that “remedial statutes should be construed liberally in favor of those whom the law is intended to protect”. Gohel at 815.
The term “occupying” is defined in the Connecticut UIM statutes as “to be in or upon or entering into or alighting from the vehicle”. C.G.S. 38a-363(c). In Testone v. Allstate Insurance Co., 165 Conn. 126(1973), the Connecticut Supreme Court in construing the term “upon” required physical contact to trigger coverage. In the later Connecticut Appellate Court case of Allstate Insurance Co. v. Howe, 31 Conn.App. 132(1993), although the Court cited Testone, supra as requiring physical contact when construing the term “upon”, the Court discusses the term “getting into” more liberally. The Howe Court stated the claimant “had an intent to reenter the vehicle after a brief interruption in her travels. She was not simply standing by the car. She had exited the car for reasons related to its operation and was returning directly to resume her travels when the accident occurred.” In the subsequent Connecticut Appellate Court case of Gomes v. Massachusetts Bay Insurance Company, et al, 887 Conn.App. 416(2005), the Court relied on the physical contact test in denying UIM benefits to a volunteer fireman who had exited his vehicle while responding to an emergency and was struck and injured by an underinsured vehicle as he was directing traffic. The facts of Gomes did not lend themselves to a more liberal interpretation as the facts did in Howe, supra where the claimant was in the process of getting into the vehicle. Also see Ludemann, et al v. Specialty National Insurance Company, 117 Conn.App. 656(2009), applying the physical contact test when construing the term “occupying” in C.G.S. 38a-336(f) which allows employees to bring UIM claims against their employer’s UIM policies if they are “occupying” the vehicle. Ludemann, supra as with Gomes, supra involved a police officer who was directing traffic and was struck by an underinsured vehicle.
Most jurisdictions have rejected the physical contact test. See, for example, Tata v. Nichols, 848 S.W.2d 649 (Tenn. 1993) In Tata, the court held that the plaintiff was “occupying” the insured vehicle when he was standing between two vehicles while attempting to jump start one of the vehicles and was injured when another vehicle ran into the back of one of the cars.
The court in Tata noted that “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.” 848 S.W.2d at 651.
In Utica Mutual Insurance Co. v. Contrisciane, 473 A.2d 1005 (1984) the court held that the decedent was “occupying” his employer’s automobile where he was directed by a police officer who arrived at the scene to bring his driver’s license up to police car and was then struck and killed by a passing automobile as he stood by the police car.
The court in Utica Mutual, in determining the decedent was “occupying” the insured vehicle, noted Testone, supra and the “physical contact” test but stated that “[a] second approach focuses upon whether the person claiming benefits was performing an act (or acts) which is (are) normally associated with the immediate ‘use” of the auto.” 473 A.2d at 1009. The court then applied the four-factor test stated in Rau v. Liberty Mutual Insurance Co., 585 P.2d 157, (Wash. Ct. App. 1978), a case concerning the plaintiff’s “use” of an insured vehicle for determining UIM coverage:
[W]e hold that when a person is engaged in the lawful use of an insured vehicle, he will be considered to be ‘occupying’ that vehicle within the meaning of the policy, provided he can meet the following criteria:
- there is a causal relation or connection between the injury and the use of the insured vehicle;
- the person asserting coverage must be in a reasonably close geographic proximity to the insured vehicle, although the person need not be actually touching it;
- the person must be vehicle oriented rather than highway or sidewalk oriented at the time; and
- the person must also be engaged in a transaction essential to the use of the vehicle at the time.
Id. (citing Rau, 585 P.2d at 162).
In Mondelli v. State Farm Mutual Auto Insurance Co., 506 A.2d 728 (N.J. 1986) the court held that the plaintiff was “occupying” the vehicle when he sustained personal injuries when struck by a hit-and-run vehicle while he was leaning against his girlfriend’s car. While there was incidental physical contact with the insured vehicle , Mondelli is notable for its recognition that ‘occupying’ is an ambiguous term and should be determined on a case-by-case basis: “Because there is much to commend [in] eschewing any ‘hard and fast rule’ . . ., we . . . are content . . . to leave the determination of whether the policy definition of ‘occupying” is satisfied to a case-by-case analysis, depending on the facts of the accident and of the use of the vehicle. We agree with [the] cautionary note that mere coincidental connection between the accident and some touching of the car would not be enough.” 506 A.2d at 731.
In Kreuser by Kreuser v. Heritage Mutual Insurance Co., 461 N.W.2d 806 (Wis. Ct. App. 1990) the court held that an insured’s co-worker was “occupying” the insured’s vehicle at the time she was struck, even though the co-worker had not yet entered the vehicle but was within ten feet of the vehicle and was beginning to turn to prepare to enter the vehicle at time she was struck by a motorcycle:
While the insurance policy’s definition of ‘occupying’ does not appear to be ambiguous when considered in a vacuum, it becomes ambiguous when determining the scope of coverage in fact situations such as that presented in this case. The ambiguity becomes apparent when it is necessary to determine what is meant by ‘getting into’ a motor vehicle. Does it mean that the party must be seated; have a portion of his or her body inside the vehicle; or have his or her hand on the door handle? This phrase, having more than one potential meaning, leaves the insured in a quandary as to the extent of his or her coverage.
Applying the vehicle orientation test to the facts of this case provides coverage that the insured would reasonably believe he had under his policy.
461 N.W.2d at 808-809.
In Simpson v. U.S. Fidelity & Guaranty Co., 562 N.W.2d 627 (Iowa 1997) the court held that a water utility employee was “using” a covered automobile when he was on his way to the truck to retrieve a tool, and, thus, was “occupying” the covered auto, whether the employee was 20 feet or five feet from the truck at the time of accident, as the employee was engaged in an activity relating to the use of the specialized truck, and the truck was not merely a means of transporting a person but was designed and equipped to aid water valve inspection, cleanup, and repair.
In Arbuthnot v. Northern Insurance Co. of New York, 140 S.W.3d 170 (Mo. Ct. App. 2004) the court held that an employee who was struck by a hit-and- run vehicle while retrieving tools from an insured employer’s truck for use in repairing a fountain was “upon” the truck at the time he was injured, as that term was used in the UIM endorsement providing coverage for anyone “occupying” a covered auto.
In Argonaut Great Central Insurance Co. v. Mitchell, 482 Fed. Appx. 477 (11th Cir. 2012) the court held that a county sanitation employee was “occupying” an insured sanitation truck at the time he was struck by a car, and was thus an insured under a policy providing uninsured motorist coverage, regardless of whether he was in actual physical contact with the truck.
In Hartford Underwriters Insurance Co. v. Cincinnati Insurance Co., No. 1:09-cv-00267-jgm, 2011 WL 90319 (D. Vt., Jan. 11, 2011) the court held that the plaintiff was occupying the insured passenger van when she was hit by a car after loading her skis into the back of the vehicle and as she was starting to walk around to the side to enter the passenger doors.
In Torres v. Travelers Indemnity Co., 793 A.2d 592 (N.J. 2002) the court held that an employee was “occupying “his employer’s insured vehicle and had a sufficient nexus between the vehicle and the accident to require UIM coverage, where the employee parked his van on the roadside, entered another vehicle to search for a package and, as he was walking back to his van, was struck by an oncoming truck when he was a few inches away from his van.
In Wickham v. Equity Fire and Casualty Co., 889 P.2d 1258 (Okla. Ct. App. 1994) the court held that the term “occupying” was broad enough to include a person who had looked through the trunk of a policyholder’s car for tools and was performing roadside repairs on the car and was kneeling next to it tightening a lug nut on the wheel when he was struck by another car.
In Travelers Insurance Co. v. Youdas, 787 N.Y.S.2d 475 (App. Div., 3d Dept., 2004) the court held that an employee of a named insured was “occupying” a delivery van when he was struck from behind by another vehicle while leaning into the rear of the van to unload supplies for delivery:
[T]he term [‘occupying’] has long received a liberal interpretation and . . . the status of passenger is not lost even though an individual] is not in physical contact with the vehicle, provided there has been no severance of connection with it, his or her] departure is brief and he or she is still vehicle-oriented with the same vehicle.” 787 N.Y.S.2d at 476.
And in Cuevas v. State Farm Mutual Auto. Insurance Co., 28 P.3d 527 (N. M. Ct. App. 2001) the court held that a plaintiff who was injured when he was struck by a vehicle while reaching into the back of the truck to get a spare tire to replace a flat tire on the insured car was entitled to UIM benefits. The court applied a “transaction-oriented” test to hold that the plaintiff was “occupying” the insured car at the time of the accident. 28 P.3d at 529-31.
These cases from other jurisdictions demonstrate that the rigid application of the physical contact test should be abandoned in favor of a multi-factorial approach on a case-by-case basis. This more liberal approach is consistent with the laudable purposes and public policy behind UIM insurance requirements and avoids absurd results which hinge on, for example, whether a plaintiff’s finger is actually touching a door handle or an inch away.