Fall On Ice Near Rear End Of Car Is Not “Occupying” Car

Several years ago, a coverage lawyer was telling me, in a tone of mild outrage, about an opponent’s position in a case where someone had been injured by a passing car while the person was standing near the back end of a pickup attached to a trailer. The opponent’s claim was that the injured man had been “occupying” the pickup for purposes of his auto policy. Since then, I’ve seen that that position is not extreme in the context of some jurisdictions’ interpretation of occupying a vehicle. Some people have been held to be occupying a vehicle when they were so far away they couldn’t have hit their car with a rock.
In D’Amour v. Amica Mutual Ins. Co., 891 A.2d 534, however, the Supreme Court of New Hampshire said that a woman who slipped and fell on ice after unloading her trunk was not occupying her car. The court compared cases that had found people a good distance from their vehicles were occupying them, but said in those cases, the person was still “vehicle-oriented” in that they were trying to find a zone of safety away from the car after a crash, stall or other accident. The opinion was issued in January, but it apparently was just published in the Atlantic Reporter last week and came up in my daily automated Westlaw search.

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