IN, ON, OR UPON AN AUTOMOBILE

Clear and Unambiguous Policy Language

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In Michigan the Court of Appeal was asked to determine whether a person close to or touching a vehicle is “occupying” it or is “in, on or upon” the vehicle for the purpose of determining the availability of coverage, in Westfield Insurance Company v. Ken’s Service and Mark Robbins, No. 300941 (Mich.App. 03/08/2012). In reaching its decision the Court of Appeal applied a precedent from the Michigan Supreme Court applying policy language as written.

In my home state, the California Supreme Court, in E.M.M.I. Inc. v. Zurich American Insurance Company,  32 Cal. 4th 465, 9 Cal Rptr 3d 701 (Cal. 02/23/2004) decided that “in, on or upon” did not necessarily mean what it said. When a he jewelry salesman left his jewelry in his car with the keys in the ignition and the engine running while he went to check on a clanking noise a thief jumped in the car and drove away with the jewelry. The insurer, that excluded losses where the insured was not “in, on or upon” the vehicle at the time of theft, refused to pay. The Supreme Court, finding coverage, concluded:

[T]he salesman here did not intend to and did not abandon his vehicle when he walked to the rear to inspect the tailpipe area. His intent and conduct was solely to attend to his vehicle without abandoning it or the jewelry locked in the trunk.

For the reasons above, we conclude that the vehicle theft exclusion is ambiguous and did not clearly and plainly apprise the insured that coverage would be lost by merely stepping out of the car. Construing the exception in the insured’s favor, we hold that E.M.M.I.’s salesman, who was approximately two feet from and actually attending to his vehicle when the theft occurred, came within the scope of the exception to the vehicle theft exclusion.

In Michigan, in a declaratory judgment action involving underinsured motorist coverage with almost identical policy language to that in the E.M.M.I. case in California the circuit court granted plaintiff Westfield Insurance Company’s motion for summary disposition because, at the time of the accident, the injured party was not “in, on or upon” his vehicle.

BASIC FACTS

On December 19, 2009, defendant Ken’s Service, a tow truck company, dispatched one of its employees, Mark Robbins, to assist a police officer, Roderick Vessey, in removing his vehicle from a ditch on US-131. When he arrived at the scene, Robbins got out of the tow truck and connected the tow cables to the police vehicle. While he was operating the control levers positioned on the side of the tow truck, another driver, Ashley See, sideswiped the tow truck and collided with Robbins. Robbins suffered substantial injuries, including a broken right arm and a protruding break of the right tibia/fibula. Robbins represents that he is “crippled for life.”

Harold Ingersoll owned the car that Ashley See was driving. Ingersoll’s insurance company, Auto-Owners Insurance, agreed to tender the full $100,000 limits of the policy to settle the claim. Robbins sought additional compensation from Westfield Insurance, Ken’s Service’s insurer, based on underinsured motorist coverage obtained for the tow truck. Ken’s Service had underinsured motorist coverage in the amount of $1,000,000. The uninsured/underinsured motorist endorsement insured anyone “occupying” a covered “auto”. Further, the endorsement defined “occupying” to mean “in, upon, getting in, on, out or off.”

Westfield Insurance refused to pay based on its determination that Robbins was not “occupying” the vehicle at the time of the accident. Westfield Insurance then commenced this action for a determination of its obligations to Robbins under the insurance contract.

Ken’s Service and Robbins moved for summary disposition. They claimed that Robbins was leaning on the tow truck for balance and support when See struck him and that this occurred while he was operating the towing controls, which were located on the driver’s side of the truck.

Westfield Insurance responded, arguing that Robbins was not occupying the tow truck when See struck him. Westfield Insurance asserted that Robbins clearly had both feet on the ground and had been outside the truck for several minutes when he was hit and injured.  The trial court interpreted the contract to mean that Robbins could only prevail if he could demonstrate that he was “occupying” the vehicle by being “upon” it when struck. The trial court focused on the word “occupying” and determined that coverage should depend on a person’s connectedness with the activity of being a driver or passenger of the vehicle. According to the trial court, if the activity or physical contact was incidental to being a driver or passenger, then the person would be occupying the vehicle and therefore would be insured. The trial court ruled that Robbins was not covered under the policy.

INTERPRETATION OF THE CONTRACT LANGUAGE

Courts treat insurance contracts no differently than any other contract. Accordingly, an appellate court should give contractual language that is clear and unambiguous full effect according to its plain meaning unless it violates the law or is in contravention of public policy. A court cannot infer the parties’ “reasonable expectations” in order to rewrite a clear and unambiguous contract.

The Michigan Supreme Court interpreted the identical contractual language at issue in this case in Rednour v Hastings Mutual Ins Co., 468 Mich 241; 661 NW2d 562 (2003).  In Rednour, an oncoming vehicle struck the plaintiff while he was changing a flat tire on the insured vehicle. The plaintiff was approximately six inches away from the vehicle when the other car struck him. He had loosened the lug nuts on the wheel and was moving towards the rear of the vehicle when the other car struck him.  The plaintiff claimed that he was an insured entitled to no-fault benefits because he was “occupying” the vehicle, as both the no-fault act and the language of the policy defined that word. Specifically, the plaintiff argued that he was “upon” the vehicle because: he was knocked into the insured vehicle and pinned between the two vehicles during the collision.

The Michigan Supreme Court held that a person did not need to be physically inside the vehicle to be “upon” it, yet it nevertheless held that physical contact alone is insufficient to show that the person was “upon” the vehicle so as to be “occupying” the vehicle. Plaintiff suggests that he was “upon” the car because he was pinned against it after being struck.

Here, the parties focused on the word “upon” and the meaning of that word. As the Michigan Supreme Court stated in Rednour, “physical contact alone may [not] be sufficient to show that the person was ‘upon’ the vehicle so as to be ‘occupying’ the vehicle.”

At the time of impact, Robbins was not in the vehicle, nor was he getting in, on, out, or off the vehicle. In fact, Robbins had been out of the vehicle for several minutes and was operating the levers of the tow truck. Thus, the appellate court concluded it had no choice but to affirm the trial court because Robbins was not “occupying” the vehicle when he sustained bodily injury.

ZALMA OPINION

The Michigan Supreme Court and Michigan Court of Appeal, dealing with injuries users of motor vehicles limited “in, on or upon to the clear and unambiguous language of the policy while the California Supreme Court, almost ten years earlier, found the same language to be ambiguous and construed a person feet away from his vehicle with the engine running so that it was easily stolen, was “in, on or upon” the vehicle.

In Michigan even if the contractual language is poorly worded, it is not ambiguous if it fairly admits of but one interpretation. The Michigan courts hold that physical contact with the insured person is required to be “upon” the vehicle, although the person need not be completely physically supported by the vehicle. Physical contact alone, in Michigan, is insufficient to show that the person was “upon” the vehicle so as to be “occupying” the vehicle.
Michigan courts, unlike the California Supreme Court, resist the request to create an ambiguity where none exists and applied the clear language of the policy they were called upon to interpret. To do otherwise removes the certainty of contract. Insureds and insurers have the right to enter into any terms or conditions they desire. It is not the appropriate province of a court to interpret insurance contracts clear on their face to provide the coverage the insured desires – after loss or injury – rather than the coverage purchased before loss or injury.

 

© 2012 – Barry Zalma

Barry Zalma, Esq., CFE, is a California attorney, insurance consultant and expert witness specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud. Mr. Zalma serves as a consultant and expert, almost equally, for insurers and policyholders.

He founded Zalma Insurance Consultants in 2001 and serves as its senior consultant. He recently published the e-books, “Zalma on Diminution in Value Damages – 2012,”“Zalma on Insurance,” “Heads I Win, Tails You Lose — 2011,” “Zalma on Rescission in California,” “Arson for Profit,” “Insurance Fraud,” and others that are available at www.zalma.com/zalmabooks.htm.

Mr. Zalma can also be seen on World Risk and Insurance News’ web based television program “Who Got Caught” with copies available at his website at http://www.zalma.com.

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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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