If You’re Not in, on, or upon a Vehicle: No Coverage

No UM/UIM Coverage if Away from Insured Vehicle

Plaintiff was a police officer for the city of Zion, Illinois (Zion). Lloyd’s provided general liability insurance coverage for Zion, which included uninsured motorist coverage. Assurance was the broker of the policy. He was injured when he reached into an offender’s automobile trying, unsuccessfully, to stop him from escaping custody.

In Duane Arrington v. Certain Underwriters at Lloyd’s, London, Subscribing to Policy Number BGA 300036-02 and Assurance Agency; 2019 IL App (1st) 182345, No. 1-18-2345, Appellate Court of Illinois First Judicial District Sixth Division (May 24, 2019) Plaintiff Duane Arrington filed a declaratory judgment action against defendants Certain Underwriters at Lloyd’s, London, subscribing to policy number BGA 300036-02 (Lloyd’s) and Assurance Agency, Limited (Assurance) seeking UM/UIM coverage for his injuries.

BACKGROUND

Plaintiff  claimed that Lloyd’s provided uninsured motorist coverage for Zion.  On June 3, 2014, plaintiff was on duty and went to assist two other officers, Joseph Richardt and Derek Zaloudek, at the scene of a traffic stop. Plaintiff, who was in the “cover car,” arrived and parked his car about two to two-and-a-half car lengths behind the stopped vehicle.

Plaintiff walked up to the stopped vehicle and stopped at the rear driver’s side. While Richardt was trying to remove the driver, Jonathan Harris, from the stopped vehicle, plaintiff noticed that Harris was reaching for the stick shift to put the vehicle in gear. Plaintiff warned Richardt and tried to take hold of Harris to pull Harris from the car. Harris, however, drove off and accelerated while plaintiff’s arm was still in the car. Plaintiff fell and suffered a severe concussion and various injuries to his head, neck, back, and ankle. Plaintiff conceded that, at the time of his injury, he was neither touching nor in the process of returning to his police cruiser.

The Lloyd’s policy listed Zion as the named insured and defined an insured party as anyone “using” a covered automobile with Zion’s permission. The uninsured motorist coverage also listed Zion as the named insured as well as “anyone else ‘occupying’ a covered ‘auto’ ***.” The term “occupying” was defined to mean “in, upon, getting in, on, out or off” of a covered auto.

Lloyd’s moved for summary judgment, arguing that plaintiff was ineligible for coverage under the policy because he was not “occupying” the covered automobile (i.e., his police cruiser) at the time of his injury.

On October 12, 2018, the circuit court issued a written decision granting Lloyd’s summary judgment motion and denying plaintiff’s. The court agreed with Lloyd’s that plaintiff was not occupying the covered automobile at the time of his injuries and disagreed with plaintiff’s argument that the policy definition of an uninsured motor vehicle allowed for coverage even if the insured party was not occupying a covered auto.

ANALYSIS

When a court construes the language of an insurance policy its primary objective is to ascertain and give effect to the intent of the parties to the contract. To determine the meaning of the policy’s language and the parties’ intent, the court must construe the policy as a whole with due regard to the risk undertaken, the subject matter that is insured, and the purposes of the entire contract. If the policy terms are clear and unambiguous the court must afford them their plain, ordinary, and popular meaning. A court will not, however, strain to find ambiguity in an insurance policy where none exists. Unsupported conclusions, opinions, or speculation are insufficient to raise a genuine issue of material fact with regard to a motion for summary judgment.

All motor vehicles operated or registered in this State and designed for use on a public highway must be covered by a liability insurance policy. Automobile liability policies in this state must include uninsured motorist coverage that includes all who are insured under the policy’s liability provisions. If a person qualifies as an insured for purposes of the policy’s bodily injury liability provisions he or she is treated as an insured for uninsured purposes as well. Nonetheless, neither the statute nor the case law places any restriction on the right of the parties to an insurance contract to agree on which persons are to be the insureds under an automobile insurance policy.

The noun “use” is defined in part as “the act or practice of using something,” implying the verb form of the word, defined as “to put into action or service.” Webster’s Third New International Dictionary 2523 (1986). One uses an automobile whenever such use is rationally connected to the vehicle for the purpose of providing transportation or satisfying some other related need of the user.

Plaintiff’s injuries did not arise in connection with the use of an insured vehicle.  At best, plaintiff stated that his vehicle was being used to create a safety bubble or zone to shield him and others at the scene from both potential cars approaching from behind and also potential gunfire. This was not connected to transportation or a related need that resulted in his injury.

State law is clear that the individual insured bears the burden of knowing the contents of insurance policies and has an affirmative duty of bringing any discrepancies in the policy to the attention of the insurer. Nor does the law impose on an insurer the duty of reviewing the adequacy of an insured’s coverage.

Plaintiff argues that he was in “virtual contact” with the vehicle which would entitle him to coverage under the Lloyd’s policy. To show that he was “occupying” a covered vehicle, a plaintiff must establish both (1) some nexus or relationship between the insured and the covered automobile and (2) either actual or “virtual” physical contact with the insured vehicle. Failure to establish both elements defeats a claim that an insured was occupying a covered vehicle.

At the time of his injuries, plaintiff’s vehicle had been stopped and parked at an angle at some distance to create a barrier or safety “bubble.” Plaintiff was not in or immediately near the car, he was not returning to it for materials to complete his job, nor was he walking toward it with the intent to get back into it.  Plaintiff needed to show both a nexus and virtual contact to the car to meet the definition of “occupying.”

At no point was plaintiff in contact with his police car; rather, he was in contact with the stopped vehicle, which caused his injury while plaintiff was reaching into that vehicle to prevent Harris from fleeing the scene. The trial court, therefore, properly granted summary judgment in favor of defendants and denied plaintiff’s summary judgment motion.

ZALMA OPINION

The question of “actual” or “virtual” contact with a vehicle has reached different results in different courts. The Illinois court, recognizing that the policy required “use” of the police vehicle. Reaching into a criminal’s car as he accelerated away was not use of the police vehicle but rather use of the criminal’s car. On the contrary, in E.M.M.I. Inc. v. Zurich American Insurance Company, 32 Cal. 4th 465, 9 Cal Rptr 3d 701 (Cal. 02/23/2004), the California Supreme Court proved it was not as logical as the Illinois appellate court by concluding that “in, on or upon” really meant in “close proximity” a decision that makes little sense and was truly and vigorously opposed by a dissenting justice. However, if the officer was injured in California, applying E.M.M.I., the officer might have recovered UM/UIM benefits.


© 2019 – Barry Zalma

This article, and all of the blog posts on this site, digest and summarize cases published by courts of the various states and the United States.  The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant  specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 50 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

Over the last 51 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.

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About Barry Zalma

An insurance coverage and claims handling author, consultant and expert witness with more than 48 years of practical and court room experience.
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