443 N.E.2d 189 | Ohio Ct. App. | 1981
This cause comes before this court from an order granting plaintiffs-appellees Sharon Halterman and Edward Delle's prayer for declaratory judgment. The order was designated final pursuant to Civ. R. 54(B) and specifically stated there was no just reason for delay. Defendants-appellants Motorists Mutual Insurance Company ("Motorists Mutual") and Franjo Dures filed this appeal from such adverse ruling.
The facts in this case are not in dispute. On December 3, 1978, appellant Dures was traveling in his automobile on I-90 when he ran out of gasoline. He pulled off onto the berm. Appellees Delle and Halterman stopped to help him. Delle and Halterman went to get gasoline with three dollars that Dures had given them. They returned to Dures and parked Delle's van behind Dures' car. Both helped Dures siphon gas into the tank of his car. Delle held a garden hose into the gasoline inlet and Halterman stood behind Delle, held a flashlight with one hand, and supported the gas can on top of the trunk of the automobile with the other hand. It was stipulated that both Delle and Halterman "helped Mr. Dures hold the gas can out of which gas was being siphoned into the gas tank of the Dures vehicle on the top of the trunk of the Dures vehicle."
While the three were siphoning gas, defendant Jeffrey Carr collided into the *2 rear of Delle's van pinning Delle, Halterman and Dures between the van and Dures' car causing Delle and Halterman to sustain injuries.
Delle and Halterman (hereinafter referred to as "claimants") brought suit seeking to recover under the uninsured motorist coverage of the insurance policy that Motorists Mutual had issued to Dures. The trial court found Motorists Mutual was liable for their injuries. Motorists Mutual appeals and assigns two errors.
"In construing the uninsured motorist provision of an automobile insurance policy, the determination of whether a vehicle was `occupied' by a claimant at the time of an accident must take into account the immediate relationship the claimant had to the vehicle, within a reasonable geographic perimeter. Where a claimant under uninsured motorist coverage was not, and did not intend, to be a passenger in the insured vehicle for purposes of transportation, and where that claimant was not entering or exiting the vehicle, the trial court erred in finding that the claimant was insured as having `occupied' that vehicle."
The insurance policy Motorists Mutual had issued to Dures contained a section entitled "Uninsured Motorists Insurance."1 That section provided that Motorists Mutual would pay all sums which the insured would be legally entitled to recover as damages from the owner or operator of an uninsured vehicle because of bodily injury sustained by the insured. "Insured" was defined, inter alia, as any person "while occupying an insured highway vehicle." Occupying "means in or upon or entering into or alighting from" a vehicle. Motorists Mutual maintains that claimants were not "occupying" the insured vehicle and are therefore not entitled to recovery. While it is readily apparent that they were not "in," "entering into" or "alighting from" Dures' car, it is not clear whether they were "upon" it.
In deciding this case, we start with the proposition that where language in a contract of insurance is reasonably susceptible of more than one meaning, it is to be liberally construed in favor of the insured and strictly against the insurer. Buckeye UnionIns. Co. v. Price (1974),
Many jurisdictions outside Ohio have interpreted the word "upon" as the term applies in auto insurance policies. See, generally, Annotation, 42 A.L.R. 3d 501; Annotation, 39 A.L.R. 2d 952; Widiss, A Guide to Uninsured Motorist Coverage, Section 2.11 (1969). The general trend appears to be a liberal construction of the word "upon" which encompasses more than being literally on the car where one's entire weight is supported by it. Many of these cases involve claimants who had just alighted from3 or who intended to enter4 the car but were not entitled to recovery under the provisions "alighting from" or "entering into." A few cases concern claimants who never were passengers in the auto or had any intention of becoming passengers. Of these cases, some required that the claimant have some actual physical contact with the insured vehicle in order to recover.5
However, one case has held that even where the claimant was in physical contact with the insured vehicle, he was still not "upon" it. Pennsylvania National Mut. Cas. Ins. Co. v. Bristow
(1966),
Accordingly, Motorists Mutual's first assignment of error is overruled.
"The policy underlying the Ohio Uninsured Motorists' Statute mandated by R.C.
Motorists Mutual's second assignment is not well taken. R.C.
Judgment affirmed.
DAY and CELEBREZZE, JJ., concur.