Akins v. Harco Insurance , 158 Ohio App. 3d 292 ( 2004 )

{¶ 50} While I concur with the majority on the appellant's first and second assignments of error, I respectfully dissent on the two cross-assignments of error and would reverse the trial court's decisions on both summary judgments.

{¶ 51} The Owners insurance policy states: "We will pay compensatory damages an injured person is legally entitled to recover * * * (2) forbodily injury sustained while occupying or getting into or out of anautomobile that is covered * * *." (Boldface sic; italics added). The majority finds that this provision is susceptible of "more than one interpretation" and then finds it "reasonable" to say that Akins, by standing with his hands on the van door and telling the service driver his license plate number, was "occupying" the van and thus was covered by its underinsured motorist coverage. Coverage in circumstances such as these certainly could not have been the intent of the parties; otherwise, any customer who happened to touch the van in responding to the driver's questions would be covered by the van's insurance policy, since the customer would have been "occupying" the van.

{¶ 52} The facts of this accident should not create an ambiguity in a plainly written policy. Someone is to be "occupying, getting into or out of" the insured vehicle. The term is to have its ordinary meaning. In construing the word "occupying" liberally under the facts of this case, the majority considered Akins's proximity to the service van (he was geographically close to it) and his performance of a task related to the van's use (he was answering questions posed by the driver), and then found that his conduct was foreseeably identified with the van's normal use. But it missed an important first step: the claimant's actual relationship with the insured vehicle. Akins was not "occupying" the insured van because he never was its owner, its driver, or its passenger.

{¶ 53} Appellate cases that broaden the undefined contract term "occupying" to grant coverage to a claimant have, at least, required a fundamental relationship between injured party and insured vehicle: the injured party was the driver or passenger. See, e.g., Etter v. TravelersIns. Cos. (1995), 102 Ohio App.3d 325, 657 N.E.2d 298 (driver injured pushing another vehicle while waiting for tow truck for insured vehicle);Joins v. Bonner (1986), 28 Ohio St.3d 398, 28 OBR 455, 504 N.E.2d 61 (child passenger leaving an insured vehicle, beginning to cross the street); Robson v. Lightning Rod Mut. Ins. Co. (1978),59 Ohio App.2d 261, 13 O.O.3d 268, 393 N.E.2d 1053 (passenger placing stereo into trunk of insured vehicle); Morris v. Continental Ins. Cos. (1991),71 Ohio App.3d 581, 594 N.E.2d 1106 (assigned driver, then passenger of an insured tractor-trailer injured while standing on highway after an accident); Yoerger v. Gen. Acc. Ins. Co. of Am. (1994),98 Ohio App.3d 505, 648 N.E.2d 919 (driver working on highway pavement near insured work vehicle); State Farm Mut. Auto. Ins. Co. v. Cincinnati Ins. Co. (June 17, 1993), 8th Dist. No. 62930, 1993 WL 215450 (passenger 100 feet away from insured vehicle picking up fallen bottles to return them to the insured vehicle); State Farm Mut. Auto. Ins. Co. v. Counts (Nov. 7, 1990), 9th Dist. Nos. 14490, 14492, 1990 WL 177476 (driver underneath insured vehicle working on brakes).

{¶ 54} We have faced a similar situation before. In McCallum v. Am.States Ins. Co. (Nov. 15, 1991), 6th Dist. No. L-90-354, 1991 WL 254150, a truck driver stopped to help another trucker who had wrecked his vehicle. While the driver of the insured truck was setting flares to warn other drivers of the hazard, he was struck by an uninsured motorist. We held that he was occupying the truck he had been driving, since he was a short distance away when hit, and that helping another driver by setting flares was reasonably anticipated conduct related to the use of the vehicle. Thus the same rules that the majority used in this case applied with an important distinction — McCallum was the driver of the insured truck from which he was claiming coverage.

{¶ 55} Akins did have underinsured motorist coverage under the Old Republic policy that insured the leased vehicle he had been driving. On the other hand, even under an expansive reading of the Owners policy, Akins was not "occupying" the service van. He neither owned the service van nor was ever inside it as a passenger or driver. For these reasons, I respectfully dissent and would reverse the trial court's judgment on both assignments of the cross-appellant.