Lead Opinion
This is аn appeal from an order entered in the Court of Common Pleas of Tioga County granting summary judgment in favor of appellee Keystone Insurance Company (Keystone) and against appellant Mary Ethel Frain. We reverse.
The underlying facts of this case are not in dispute. On the morning of June 23, 1989, Mrs. Frain and two companions, Joanne Losinger and Dorothy Baker, rode in Mrs. Losinger’s automobile from their homes to a nearby ceramics shop in Gaines, Pennsylvania. After leaving the shop and while reentering Mrs. Losinger’s automobile, Mrs. Baker yelled either, “look-out” or “run.” Mrs. Frain looked up and saw a tractor trailer entering the privatе driveway, approaching Mrs. Lo-singer’s automobile. All three quickly moved away from the automobile; in particular, Mrs. Frain turned away from the vehicle and ran.
Neither Mrs. Frain nor any member of her household owned an automobile or had an applicable policy of automobile insurance. Mrs. Frain requested first party benefits from Keystone, the insurer of Mrs. Losinger’s vehicle, but was denied covеrage. Consequently, Mrs. Frain filed a declaratory judgment action against Keystone seeking first party benefits.
Thereafter, both Mrs. Frain and Keystone filed motions for summary judgment. After hearing arguments, the Honorable Robert M. Kemp, Senior Judge, Specially Presiding, granted Keystone’s motion and denied Mrs. Frain’s motion. Judge Kemp relied оn the Pennsylvania Supreme Court’s decision in Utica Mut. Ins. Co. v. Contrisciane,
Whether Mrs. Frain was an “occupant” of Mrs. Losinger’s vehicle at the time of the accident, thereby entitling her to first party benefits under the Keystone insurance policy?
Generally, the proper construction of a policy of insurance is a matter of law which may properly be resolved by a court pursuant to a motion for summary judgment. See Fisher v. Harleysville Ins. Co.,
The standards to be applied in reviewing insurance contracts are well settled. The proper focus regarding issues of coverage under insurance contracts is the reasonable expectation of the insured. Dibble v. Security of America Life Ins. Co.,
Here, the Keystone policy provides that it will pay an “insured” “reasonable expenses incurred for necessary medical and funerаl services (first party benefits) because of bodily injury[.]” The policy defines “insured” in the following manner:
1. You or any “family member”....
2. Any other person while “occupying ” “your covered auto[.]”
“Occupying” means in, upon, getting in, on, out or off.
(emphasis added). Keystone contends that Mrs. Frain was not an “occupant” of Mrs. Losinger’s insured vehicle at the time of the accident and, therefore, is not entitled to first party benefits under the policy.
In Utica, supra, the Pennsylvania Suрreme Court examined an insurance policy which defined “occupancy” in a manner similar to the policy in this case. Utica,
(1) there is a causal relation or connection between the injury and the use of the insured vehicle;
(2) 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;
(3) the pеrson must be vehicle oriented rather than highway or sidewalk oriented at the time; and
(4) the person must also be engaged in a transaction essential to the use of the vehicle at the time.
Id. at 335,
Applying the Utica analysis, the trial court found that although Mrs. Frain was in proximity to Mrs. Losinger’s automobile at the time of the accident, there was no causal relationship or connection between Mrs. Frain’s injuries and the use of Mrs. Losinger’s vehicle; “[t]he insured vehicle did not contribute to the injury of the plaintiff (Mrs. Frain).” We do not agree.
To be deemed an “occupant,” it is not necessary for the insured vehicle to directly cause the injuries to the claimant. Contrаry to the trial court’s and Keystone’s interpretation of Utica’s causation prong as requiring some direct or physical connection between the insured motor vehicle and the injured person, the first prong of the Utica test is clear in that it requires only some relation or connection “between the injury and the use of the insured vehicle.”
This point is illustrated in Utica, supra and Fisher, supra. In Utica, an individual (plaintiff) was driving an automobile owned by his employer when he was involved in a minor traffic accident with another automobile. Utica,
The decedеnt’s estate sought uninsured motorist benefits from Utica Mutual Insurance Company (Utica), the insurer of the employer’s vehicle. The arbitrators denied recovery under the Utica policy because they ruled that the decedent was not “occupying” the employer’s vehicle at the time he was killed. The trial cоurt reversed the arbitrator’s award and the Pennsylvania Supreme Court affirmed that decision insofar that it found the decedent to be an “occupant” of his employer’s vehicle at the time of the accident. Id. at 331-32,
Even though the employer’s vehicle did not directly cause the plamtiffidecedent’s death, the Cоurt held that “it was the use of the (employer’s) vehicle which precipitated the whole unfortunate series of events.” Id. at 336,
In Fisher, supra, the рlaintiff and his friend went deer hunting. They were driven to the hunting area in the friend’s pickup truck by the plaintiffs uncle. Later that same afternoon, the driver returned to the hunting area and waited for the hunters on the berm of the road. As the hunters approached the truck, the driver instructed them to unload their guns before entering the truck; the driver turned on the headlights so that the hunters could see in the darkness. Before the plaintiff could retrieve all of his rifle shells, however, he was struck by an approaching vehicle and sustained serious injuries. Fisher,
This court was asked to determine whether the plaintiff, who was struck by another vehicle while standing in front of the insured truck and while unloading his rifle in front оf the
In this case, although Mrs. Frain’s injuries were not sustained as a result of any direct contact by the insured vehicle, her injuries were clearly the result of her “occupying” the covered automobile as defined by the Keystone policy. Utica, supra; Fisher, supra. The record indicates that at the time of the accident, Mrs. Frain had already placed her purse into. Mrs. Losinger’s vehicle and was in the process of “getting in” or entering the vehicle through the opened front passenger door. The fact that she saw the oncoming vehicle in time to attempt to dodge out of harm’s way does not, in and of itself, break the chain of causation. To hold otherwise would serve to encourage irresponsible behavior; under the trial court’s and Keystone’s rationale, for example, Mrs. Frain would have been entitled to first party benefits if she had decided to get into the insured vehicle after seeing the oncoming tractor trailer, rather than fleeing. We cannot countenance such an absurd result. See Tyler v. Ins. Co. of North America,
Next, in order to determine whether Mrs. Frain was an “occupant” of the insured vehicle at the time of the accident, we must apply the facts of this case to the remaining three prongs of the Utica test. We find, as the trial court found, that Mrs. Frain was in close proximity to Mrs. Losing-er’s vehicle at the time of the accident. Utica, supra. Specifically, the evidence of record shows that Mrs. Frain fell approximately three to four feet awаy from Mrs. Losinger’s parked vehicle.
We also find that Mrs. Frain was vehicle oriented at the time of the accident because she was in the process of entering the vehicle in order to make the return trip home. But see Aetna Cas. & Sur. Co. v. Kemper Ins. Co.,
Turning to the fourth and last prong of the Utica test, we find that Mrs. Frain’s process of entering the subject vehicle was a transaction essential to its use. Utica, supra; see also Shultz v. Nationwide Ins. Co.,
We conclude that Mrs. Frain was an occupant of the subject vehicle at the time of the accident within the meaning of the Keystone policy. Utica, supra. We find, therefore, thаt the trial court committed an error of law when it granted summary judgment in favor of Keystone and against Mrs. Frain. Hetrick, supra.
Accordingly, the trial court’s order is reversed and the case is remanded for proceedings consistent with this decision. Jurisdiction relinquished.
Notes
. The deposition testimony of Mrs. Frain and Mrs. Losinger is unclear as to whether Mrs. Frain closed the front passenger door before running, or whether the impact from the truck caused the door to close.
. Rule 1035(a) provides:
After the pleadings are closed, but within such time as not to delay trial, any party may move for summary judgment on the pleadings and any depositions, answers to interrogatories, admissions on file and supрort affidavits.
Pa.R.C.P. 1035(a).
Dissenting Opinion
dissenting.
I am unable to conclude that Mary Ethel Frain was an “occupant” of Mrs. Losinger’s vehicle at the time of the accident. Therefore, she is not entitled to benefits under the policy issued by Keystone Insurance Company (Keystone). For this reason, I must respectfully dissent.
The Keystone policy in effect at the time of the accident provided that it would pay an “insured” “reasonable expenses incurred for necessary medical and funeral services (first party benefits) because of bodily injury[.]” The policy defined “insured” as follows:
*473 1. You or any “family member”....
2. Any other person while “occupying” “your covered auto[J”
Further, the policy defined “occupying” as “in, upon, getting in, on, out or off.”
Keystone contends that Frain was not occupying the vehicle at the time she sustained her injuries. Thus, Keystone argues that Frain is not entitled to benefits under the Keystone policy. I agree.
In Utica Mutual Insurance Co. v. Contrisciane,
(1) there is a causal relation or connection between the injury and the use of the insured vehicle;
(2) the person asserting coverage must be in a reasonably close geographic proximity to the insured vehicle, although the person need not be áctually touching it;
(3) the person must be vehicle oriented rather than highway or sidewalk oriented at the time; and
(4) the person must also be engaged in a transaction essential to the use of the vehicle at the time.
After applying these criteria, I am unable to find that Frain was vehicle oriented at the time she sustained her injuries. Frain had turned from the Lоsinger vehicle and was fleeing to avoid injury from the approaching tractor trailer. Therefore, Frain was not vehicle oriented at the time of the accident.
I am also unable to find that Frain was engaged in a transaction essential to the use of the Losinger vehicle. I am unable to understand how a passenger running for her life away from a vehicle relates in any manner to the owner’s use of the car.
Because I have determined that Frain was neither vehicle oriented nor engaged in a transaction essential to the use of the Losinger vehicle, I cannot conclude that Frain was an
Accordingly, I dissent. I would affirm the trial court’s order which granted summary judgment in favor of Keystone and against Frain.