United Farm Bureau Mutual Insurance Co. v. Pierce ( 1972 )

Robertson, P.J.

The plaintiff-appellee’s (Pierce’s) automobile became stuck in the snow. Pierce got out of the automobile and, while another was at the wheel, attempted to free the vehicle. While pushing on a front fender he slipped, cutting the fingers on his left hand.

Pierce had an insurance policy with the defendant-appellant (Farm Bureau) that included medical payment provisions applicable while he was occupying the vehicle. Occupying was defined in the policy as being “in or upon, entering into or alighting from” the automobile. Farm Bureau denied Pierce’s claim for medical payments. Pierce prevailed in an action for declaratory judgment by way of a summary judgment. The trial court held:

“1. Plaintiff was insured for medical coverage arising out of the occupying of a vehicle.

“2. At the time of his injury plaintiff was within the occupying clause of the policy set out in plaintiff’s Exhibit ‘a: ”

Farm Bureau now appeals the overruling of its motion to correct errors which specified the judgment was contrary to the law and the evidence.

The questions presented is whether or not the word “upon” contained in the definition of “occupying” places Pierce within the provisions of the policy. As may be expected there is a division in judicial interpretation of what constitutes “in or upon” as used in the policy clause in the instant case.

Farm Bureau cites us to se.veral authorities from foreign jurisdictions involving interpretation of the same or similar exclusionary clause under the same or similar fact situations. Those authorities hold that the insured was not “in or upon” the vehicle. In a factually similar case, the court said:

“We think that the language employed in stating the coverage is reasonably plain and unambiguous and to say that the insured was ‘upon’ the truck when he was behind pushing it would be placing a distorted meaning upon the language used. He was neither ‘in’ nor ‘upon’ the truck at the time.” Bowlin v. State Farm Mutual Automobile Insurance Co. (1959), 46 Tenn. A. 260, 327 S. W. 2d 66, at p. 67.

Also, where the insured slipped in some mud while holding onto an automobile for support, a Texas Court said:

“We cannot say that she was ‘in or upon’ the car simply because she put her hand upon it to steady herself. . . . Moreover, we reject the plaintiff’s contention that physical contact alone is the test as to whether an insured is ‘in or upon, an automobile.” Ferguson v. Aetna Casualty & Surety Company (Tex. 1963), 369 S. W. 2d 844, at p. 846.

Pierce relies upon the principle that if a contract of insurance is ambiguous then it shall be construed in favor of the insured. Patton v. Safeco Insurance Company of America (1971), 148 Ind. App. 548, 267 N. E. 2d 859; United State Fidelity and Guaranty Co. v. Baugh (1970), 146 Ind. App. 583, 257 N. E. 2d 699; and Town & Country Mut. Ins. Co. v. Owens (1968), 143 Ind. App. 522, 241 N. E. 2d 368.

In resolving the issue it is necessary to determine if the phrase in question is ambiguous.

“It is elementary in the construction of insurance policies that where insurance contracts are so drawn as to be ambiguous or require interpretation or are fairly susceptible of two different constructions so that reasonably intelligent men on reading them would honestly differ as to their meaning, the Courts will adopt that construction most favorable to the insured.” (Our emphasis.) Masonic Acc. Ins. Co. v. Jackson (1929), 200 Ind. 472, at p. 481, 164 N. E. 628, at p. 631.

“Accordingly, the test to be applied in ascertaining the ambiguity, or lack thereof, of the insurance contract before this court, is whether or not it is susceptible of more than one interpretation. Furthermore, in order to constitute ambiguity so as to be susceptible of more than one interpretation, it must be shown that reasonably intelligent men on reading the insurance contract would honestly differ as to its meaning. Masonic, supra. This however, does not mean that because controversy exists and a party asserts one interpretation, while the other denies it, that ambiguity has affirmatively been shown to exist.” (Citing authorities.) O'Meara v. American States Insurance Co. (1971), 148 Ind. App. 563, 268 N. E. 2d 109, at p. 111.

In determining whether ambiguity exists we find the observations in Wolf v. American Cas. Co. of Reading, Pa. (1954), 2 Ill. App. 2d 124, 118 N. E. 2d 777, most helpful:

“As related to the instant case, it is the use of the word ‘upon’ which creates an ambiguity. It cannot mean that the insured, to be within the meaning of the clause, had to be couched on the roof of the car or on the running board or sitting on the hood. It must connote some physical relationship between himself and the car that enlarged the area defined by the words ‘entering or alighting’ and the word ‘in.’ In the two cases which decided against liability, the plaintiff had no physical contact with his own car.” (Citing authorities.) 118 N. E. 2d 777, at p. 780.

The court was referring to a denial of liability in Ross v. Protective Indemnity Co. (1948), 135 Conn. 150, 62 A. 2d 340, (insured struck while responding to a call of nature), and New Amsterdam Casualty Co. v. Fromer (1950 D. C. Mun. App.) 75 A. 2d 645, (insured struck while returning to his car after talking to another driver). The court continued showing liability existed when the insured was injured when fending off his moving car (Sherman v. New York Casualty Co. [1951], 78 R. I. 393, 82 A. 2d 839); tying on a front bumper that had fallen (Lokos v. New Amsterdam Casualty Co. [1949], 197 Misc. 40, 93 N. Y. S. 2d 825); replacing a spare tire in the trunk (Madden v. Farm Bureau Mutual Automobile Ins. Co. [1948], 82 Ohio App. 111, 79 N. E. 2d 586); and when clinging to a moving car (Young v. State Auto Ins. Ass’n. [1954], 72 Pa. Dist. & Co. R. 394). In each of the aforementioned instances, the insured had physical contact with his vehicle.

It would further appear that the “entering or alighting” cases require an intent coupled with an overt act necessary to enter or exit the vehicle. Physical support may or may not be a factor to be considered. See Goodwin v. Lumberman’s Mut. Cas. Co. (1952), 199 Md. 121, 85 A. 2d 759, and Wolf v. American Cas. Co. of Reading, Pa., supra. The majority of “in or upon” cases appear to rely primarily upon physical support.

We are of the opinion that Pierce was “upon” his car at the time of the accident and thereby covered by the policy of insurance.

Judgment affirmed.

Lybrook, J., concurs; Lowdermilk, J., dissents with opinion.