Standing Near Car After Accident Is Not “Occupying” It

One of the most recurrent coverage problems is whether a driver is covered for injuries that happen after he gets out of his car, usually because he was just in an accident. After the driver gets out to check on his vehicle, or talk to the other driver, he is then hit and injured by a third driver.
That is the scenario of Auto-Owners Ins. Co. v. Above All Roofing,LLC, 2006 WL 66708 (Fla. App. Dist. 2 January 13, 2006). An employee of a roofing company was involved in an accident while operating his employer’s van. He and the other driver pulled over, and the employee was exchanging insurance information as required by law when he was hit by a third driver. He sought Underinsured Motorist coverage from his employer’s insurer. Because he wasn’t a first named insured, he was covered under the policy only if he was injured while occupying the van, defined as being in the vehicle or getting into or out of it. The appellate court reversed the trial court’s grant of summary judgment for the insured, holding that Florida law, like that of most states, has no doctrine of “reasonable expectations,” and the policy language must be enforced as written. Standing away from the car, even to engage in a statutorily mandated exchange of information, did not qualify as “occupying” it.

Although it seems that the result arrived at by the Florida appellate court is the majority rule, there are a number of states that have found that being in contact with a vehicle, being near it, or even doing some vehicle-related act like walking to get help constitutes “occupying.” Among these more permissive jurisdictions are Hawaii, Illinois, New Jersey, New York, Ohio, Pennsylvania, Rhode Island and Wisconsin. Some of the relevant cases are discussed in the opinion.

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