occupational hazards: defining "occupy" in the context of alabama um coverage
By: Murray Flint
Most uninsured motorist (UM) claims are pretty straightforward. The only question is whether the insured is legally entitled to recover more than the limits of the tortfeasor’s liability insurance policy. However, interesting and complicated issues can arise in UM claims. One of the more common issues arises where a claimant is only insured by virtue of their “occupancy” in a covered auto. This begs: what does “occupying” mean?
Most UM policies in Alabama extend coverage to those occupying a covered auto. In fact, some policies (primarily commercial policies) condition UM coverage on occupancy. When a claimant is riding in a scheduled auto at the time of an accident, there is no question they are insured. Likewise, reasonable minds would agree that a person napping in a hammock is not occupying any vehicle. However, there are countless scenarios that fall between these extremes. While Alabama caselaw provides some guidance on the parameters of “occupying,” there is a distinct gray area.
The Alabama Supreme Court addressed the meaning of “occupying” in Lambert v. Coregis Ins. Co., 950 So. 2d 1156 (Ala. 2006). In Lambert, the policy at issue defined “occupying” as “in, upon, getting in, on, out or off” (which is a standard definition in UM policies). The plaintiff drove a work truck to a jobsite and parked it on the side of the road. Later, he retrieved a jug of water from his truck, and stood between it and another truck driven by a coworker. Another vehicle then swerved off the road and hit the plaintiff, pushing him into the bumper of his work truck. The court held the plaintiff was not occupying his work truck at the time of the accident because he was not “vehicle oriented.”
The court reached a similar conclusion in Cook v. Aetna Ins. Co., 661 So. 2d 1169 (Ala. 1995). In Cook, the plaintiff (a prison release worker) was walking toward a covered auto that would take him to work. He was approximately one foot from that vehicle when he was hit by another driver. The court reasoned he was not “getting in” the truck at the time of the accident because he needed to get his lunch box and coat before going to work. While the court did not believe Alabama should adopt a physical contact requirement, it explained “getting in” a vehicle should be distinguished from approaching or preparing to enter a vehicle. One wonders, however, if the court would have reached a different conclusion if the claimant had his lunch box and coat in his hands at the time of the accident.
On the other hand, the Northern District of Alabama distinguished Lambert in Argonaut Great Cent. Ins. Co. v. Mitchell, 775 F. Supp. 2d 1322 (N.D. Ala. 2011). In Argonaut, the claimant was a sanitation worker who was required to ride on the back of a garbage truck and periodically get on and off the truck to help the hydraulic lift. At the time of the accident, the claimant had been off the truck’s platform on the street for eight to twelve seconds when he was struck by another vehicle. At all times, he was within two to three feet of the vehicle. The court summarized Alabama’s treatment of the term “occupying” as follows:
Although the Alabama Supreme Court has not established a precise test, the discussions in Lambert and Cook indicate that factors to consider in determining whether someone is “occupying” a vehicle . . . include, among others, the use of the vehicle; whether the person seeking coverage was engaged in any activity related to that use; whether a causal connection exists between the use of the vehicle and the accident; whether the person was vehicle oriented at the time of the accident; what involvement, if any, the insured vehicle had with the accident; and whether the person was in close proximity to the insured vehicle.
Id. at 1327-28. Applying that standard, the court explained the work truck in Lambert was used to transport the plaintiff and his water jug to the work site but played no role in his injuries. On the other hand, the plaintiff in Argonaut would not have been injured “but for” his use of the sanitation truck. In reaching that conclusion, the court followed the reasoning of a Third Circuit case in which a tow truck driver was hit while helping a disabled vehicle — the tow truck’s purpose was to transport the driver to assist stranded vehicles, which “regularly occurs in an unsafe location such as the side of the highway.” Id. at 1330-31.
There is no “rule of thumb” to apply when determining if someone is occupying an auto. Instead, you must balance the facts of each particular claim with the factors summarized in Argonaut:
• What is the vehicle’s “use,” and was the claimant engaged in any activity related to that use?
• Was there a causal connection between the accident and the covered auto?
• Was the claimant near the covered auto?
• Was the covered auto “involved” in the accident?
• Was the claimant “vehicle oriented” — I cannot neatly define this factor for you, but rather suggest you consider whether the claimant is moving toward or preparing to use the covered auto.
While most claims fall neatly inside (or outside) the scope of coverage, claims involving a close call can be tricky. That said, it is worthwhile to wrestle with this issue when it arises, because it is often dispositive — since most auto accidents involving pedestrians involve serious injuries (or death), the policy limits may hang on this issue alone.
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Murray S. Flint