Genthner v. Progressive Casualty Insurance, 681 A.2d 479

Genthner v. Progressive Casualty Insurance

681 A.2d 479

Me.

1996

Check Treatment

*1 Kоttler, Welch, Hardy Stephen Michael J. Lewiston, P.A., for Plain- Downing, Wolf & Stephen GENTHNER tiff. Powers, Powers, South Erler & Victoria PROGRESSIVE CASUALTY Portland, for Defendant. COMPANY. INSURANCE GLASSMAN, WATHEN, C.J., and Before Supreme Judicial Court of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Maine. DANA, CLIFFORD, RUDMAN, on Briefs Feb. 1996. Submitted LIPEZ, JJ. Aug. Decided WATHEN, Chief Justice. Stephen appeals

Plaintiff Genthner Superioi summary judgment entered J.) (Lincoln Marsano, denying County, Court Progressive against defendant Ca- his claim (Progressive) for sualty by an uninsured motorist. caused Superior appeal on that the Genthner applying a matter of law in Court erred as Progressive’s policy to the agree, and we vacate stipulated facts. We judgment. passenger in a vehicle insured by Progressive, a vehicle driv- immediately hit-and-run motorist en operated after a collision between the insured vehicle. that motorist and inju- sought compensation for his Progressive. denied ries coverage basis covers a while that the com- “occupying” the vehicle. Genthner parties menсed the action. summary judgment submitted moved for joint statement of material the case on together copy of the insurance with may stipulated facts be summa- policy. The rized as follows: night September On the Stephen tiff wagon, along Conroy, station F. Jr.’s William Conroy’s station passengers. with two other by Progressive for dam- wagon was insured motorist. At ages caused a.m., Conroy was approximately 12:45 secondary wagon on a driving the station Falmouth, by a it was rear-ended road in contin- impact, the truck pickup truck. After wagon, and the push the station ued to Using ma- together. evasive bumpers locked neuvers, unhook the Conroy was able to *2 pulled stopped Applying stipulated policy facts to the bumpers. He ahead and right language, side of the road after the court ruled that Genthner was bridge. injured. Conroy got party Progressive’s pol- No one was icy. inspect damagе. out of his car to The The court stated: stopped bridge, on the and the driver [Tjhere is no causal connection between Conroy remained in the truck. could not see the incident which caused the Plaintiffs plate. the truck’s license Genthner and the Therefore, Conroy’s and Mr. car. passengers got other two out of the car. law, the Plaintiff was not matter Conroy approached and Genthner both occupying Conroy as that term obtaining truck for the its license is defined in the plate number. and Genthner walked ruling, appeals. From this yards, about 100 towards the truck. As approaсhed bridge, began the truck precise focuses on the engine “rev” its and then “floored it” across injury that moment bridge, swerving as it did so. Both men into, was not then way, tried to out of the but the truck Conroy’s argues that off’ vehicle. Genthner injuries. causing abstract, although, meaning sped away truck then and remains unidenti- сlear, “occupying,” may term be it becomes ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍fied. ambiguous applied. agree. We Progressive’s policy, part, in relevant carefully reading An insured states: language could not determine whether pay damages, punitive will We other tiffs claim is covered. Peerless Ins. Co. See bodily injury exemplary damages, or (Me.1989) (an 383, 384 legally which an entitled ambiguous “if insurance contract is said to be operator to recover from the owner or ordinary person in the shoes of the in- up an uninsured motor vehicle to the limit sured would not understand liability as defined in this Part. The claim). ambi- did not covеr” the This latent bodily must be caused accident policy is guity con- ownership, mainte- and arise firmed an examination of the numerous nance or use of an uninsured motor vehi- appellate opinions dealing with this issue in cle. jurisdictions. adopting other a liberal Courts policyhold- An insurance contracts person” “insured includes the of similar relative, plus “any person occupying generally coverage on these facts er or a would find policyholder’s] Occupying car.” is de- because of the functional nexus between [the “in, on, injury.1 claimant’s getting fined as out of or off.” insured vehicle and the Anderson, (Driver 118 N.E.2d 777 Guarantee Co. (E.D.Pa.1984) (Under F.Supp. New Jer out of his car after a traffic driver, exchange sey with other driver of commercial truck who had information investigate ‘upon’ onto side of cause his car when engine coming to write down of black smoke was "occu uninsured motorist as he number.); Michigan pying” plate Mutu the truck on the side of the his own license as Combs, (Ind.App., al 446 N.E.2d 1001 road and was struck Dist.1983) (Where of the owner of [of truck] he "had not terminated his use brother merely stopped vehicle had arrived to render assistance to determine the source of vehicle, truck.”); Manning problem and had neither been a v. Home Ins. (App. to become in the disabled vehicle nor intended one, 128 Ariz. 1980) ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍standing nonetheless next to vehi bumper and worked driver as he as he rested his knees on the to render assistance to tires, engine car's snow chains on "relatiоnship” on his an uninsured motorist sured based vehicle.); Kentucky Bureau Mutual In related to Farm [her] because her was “so (Ky.App., Gray, occupancy Co. v. 814 S.W.2d 928 and use of the car”. The court surance grandmoth adopted who had borrowed his the term in the liberal construction of expressed by the sidе of the road to light policies man er’s car and had state’s coverage.); datory assist a stranded motorist Wolf Pa., grand- engine Casualty Reading, of his car when he leaned over American Co. Ill. courts, absence deny coverage applying a more inter- Other pretation with the insured “occupying,” of the term that vehicle onto median was mother's car and was as the disabled Williams, him.); trooper tried into White v. and a state vehicle rolled Cir., (Passen 1990) second disabled vehicle and *3 third, vehicle; finding ger pay a “sufficient car to uninsured who had exited convenience store relationship” "occupying” because the driver gas to the vehicle cashier for was the car when truck, waiting tow was within by was was still an uninsured motorist as he car, car, get relatively proximity and parking close because the lot to back into the assisting foreseeable”.); ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍"reasonably "relationship vehicle is test”: de another disabled under the parture "His Lightning solely Rod performing the v. Mutual was of Robson 261, Co., physically App.2d directly and Insurance Ohio an act that was related 59 (Ohio 1978) (Where car.”); Day Bottling Company, App., and v. Coca-Cola 1053 the destination, Inc., driver had reаched their final 420 So.2d 518 2 pick up passenger's passenger and driver home to over onto at stereo, vehicle, pas “occupying” the highway assist a was side of senger by injured alighting was motorist as was "while from” the when he parked next to truck he loaded in the trunk of the vehicle as he stood by thе stereo vehicle; car, test”.); “relationship Mackie fact that under the v. a third 500, irrelevant, Co., Or.App. danger Unigard himself in was as state Insurance 90 1266, (1988) (Where parked immunizing encouraged her 'Good 1269 driver car law helping Samaritans’ street, distress.); lights engine, got Gentry and others in v. turned off the door, Co., 109, Mich.App. she was still 208 N.W.2d out of car and shut 527 (1995) (Passengers "occupying” packages of had car as she retrieved 39 vehicle which by “occupying” were swerved into a ditch that vehi trunk and was struck pur- “opening on the side of a trunk for cle as the road because by pose objects removing to be towed and an of is a course of conduct were struck motorist.); leaving alighting Hawkeye v. uninsured rity Rohlman Secu incidental Co., 540, Co., car.”); Mich.App. Keystone Ins. 190 461 Frain v. 476 N.W.2d 1352, (Pa.Su- 462, (Passenger gotten Pa.Super. who had A.2d 1356 out of van 433 640 per.1994) re-entering the side of the road to re-attach a trailer which being by "occupying” the van was cle and who in her haste to was towed herself runaway trailer van when he was struck an motor of a tractor was uninsured ist.); Fidelity Guaranty of Klein v. United States unin- Co., (Minn.App., 451 N.W.2d 901 sured motorist gotten require -"occupying" of her to out a flat highway being the tractor tire on the side of the wаs vehicle and risk killed trail- er, advocating his truck when he was struck uninsured and as is an absurd result an such behavior.); "continuing relationship” irresponsible under a v. 1005, 328, test.); Exchange, v. Truck Ins. 473 A.2d 1009 Radmann (Under (Miss., 1995) (1984) (driver vehicle involved in a collision Wisconsin parked a truck driver who had with a his vehi- his vehicle second vehicle it, lot, his vehicle exited started to cross a cle after he retrieved items from request, police was still "vehicle-oriented” and thus officer’s the truck when vehicle as re- was by Fountain, uninsured motorist.); Hospital patrol feet v. turned to the car and was 97 Newcomb vehicle.) N.J.Super. Accident from the insured General Ins. (1976) (Passenger auto which 574 A.2d ser Co. America v. (R.I., 1990) had "occupy mechanic vehicle which been viced at a station ing” when collision she the car he stood and observed the in a injured by explosion police an in the cruiser 117 mechanic vehicle, waiting speak with еngine, service station was not destination; rather, and killed she was shot ultimate passen- the other “it her status as driver and intended to resume their driver: serviced.); precipitated ger trip Cepeda in the vehicle that as soon as the vehicle was Co., events.”); Fidelity Guaranty ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍whole unfortunate series of v. United States DeStefano Co., Oregon P.2d N.Y.S.2d Mutual Ins. A.D.2d (Utah 1988) (Plaintiff ("Where App., passenger alights following who exited stalled some station, place got gasoline temporary interruption from a service other than his destination, began pouring gasoline into vicinity car its to stalled remains immediаte every car tank was the stalled the vehicle and there is reason to believe that, because "it had it not been for the he would plaintiff place shortly clear [was] the[] have resumed his jour- immediately resuming every changed.”); has not Etter v. intention of status as a doing ney, process so. All of Ins. 102 Ohio was in Travelers (Ohio suggest conduct actions a course of reason- [his] N.E.2d 298 vehicle.”). high- ably [occupying]the which had incidental to borrowed vehicle swerved ambiguous policy language. The exact accompanied by and “unreason- between “reasonable” line absolutely of the vehi- essential case-by- defined on a able” will have to be cle.2 say only that can case determination. We boundary. the facts of this case fall within When, case, in as in the surance contract it is con entry is: against the insurer in favor of cover strued Judgment for further vacatеd. Remanded Mountain Ins. Gross Green age. opinion here- proceedings consistent Baybutt (Me.1986), citing in. Commercial Union (Me.1983), grounds, overruled on other *4 GLASSMAN, CLIFFORD, RUDMAN Peerless Ins. Co. v. LIPEZ, JJ., concurring. (Me.1989). reading A of the reasonable claim. He would include Genthner’s DANA, Justice, dissenting. passenger in at the the insured vehicle collision, But for time of the collision. respectfully I dissent. Because Genthner in car. His effort would have remained was neither securing the license of the the driver the time off’ the “accident,” “occupying” the vehi- was not involved number of the other vehicle consequence, As a cle аt time. interruption trip and was temporary provide not Conroy insurance does reasonably opera directly and related to the of this coverage. applied As to the facts and use of the insured vehicle. tion ease, ambigu- envisage a less it is difficult to defining adopt a We decline to formula than of the word ous definition If it reading” the one contained the outer limits “reasonable when he was struck not v. Aetna Insurance Cook motorist, (Ala. 1995) (Where after carpool fifteen minutes Graham, residence, accident.); pas Allstate Ins. Co. v. the first outside (N.M., 1988) buy cup P.2d 1105 senger coffee, to 106 N.M. had crossed the street driven a "getting vehicle had in” the car for driver of borrowed was not her tire re- friend to a service station to have it when he was struck paired, to the friend’s and then drove that friend uninsured motorist within a foot of the car. “occupying" longer jacket driver was no had left his and his Because residence, got out and be- vehicle when she lunch the court con the borrowed box within help gan a flat tire and retrieve to friend to cluded that he intended to first these vehicle.); car.); Marcilionis v. enter the West American items and then Lovett, Oregon, (Fla.App., 318 Or. Farmers Ins. Co. 519 So.2d (1994) (Deaf driver of borrowed vehicle who P.2d 470 of borrowed the side of the road in fatally injured off to biker involved over to assist attention, waving woman to vehicle was not in an accident with another the woman down had then chased the borrowed vehicle when he car, grabbed away, after she had entered walked 100 feet street keys out of the vehicle and off, biker, ignition, was not and run from the towards the as he re- obligated "occupying” the borrowed vehicle because he "was not sured stop keys the street bicyclist from the middle of trieved the render aid dropped them and was struck place.”); Calloway where she had first interpreta- a literal Ill.App.3d 93 Ill.Dec. (1985) "occupying”.); v. Texas Farm Bu- tion of Fulton disabled vehicle who (Tex.App.,— away 773 S.W.2d from vehicle in order reau had walked 150 Dallas, 1989) (wheré walking "occupying" gasoline vehicle was not to find witnesses to names of across lot to solicit she was struck driv- and the unidentified a hit-and-run accident construction of the under a literal (La. passenger, intentionally term.); er Haynes, Breard v. 394 So.2d his friend's was not in minor auto said time, efforts to collect voluntarily because his car at the left the vehicle and accident who officer, separate "distinctly ac- information were 75 feet witness median, in [his purpose tivities from his the vehicle and near the car."). unnecessary friend's] conversation with the any ing. judgment I ambiguous, affirm reformulation would be Superior Court.1 however, Labeling well. a word make does not it so. Genthner walking

left identify

away from it to the assailant. Pro-

gressive Casualty did provide

not insurance for such undertak- time; .ignored person engaged "plain must also be 1. Some courts that have meaning” approach part use a four test deter- the use vehicle at essential to transaction actually person whether a not mine who is time. vehicle or in direct (1984). Apply- vehicle, may be considered to be ing part to the this case this four test facts of of uninsured motorist not show vehicle oriented that Genthner there is casual relation or con- walking vehicle and because he was nection between the use of the required actions were result vehicle; (2) person asserting cover- attempt vehicle’s and his condition age geographic be in must registration number was truck’s not essential although Conroy's necessary vehicle’s it; (3) actually touching need not be trip. continue their See GeneralAccident Ins. Co. person must be vehicle oriented rather (R.I.1990). A.2d 1240 oriented or sidewalk oriented at the