To be covered under most auto insurance Personal Injury Protection (PIP) provisions, a person needs to be “occupying” a vehicle.
“Covered person” as used in PIP coverage means the named insured or any family member while occupying or when struck by a motor vehicle designed for use maily on public roads or a trailer of any type. “Covered person” also includes any person occupying the covered auto with the named insured’s permission.
Most PIP claims arise out of accidents when an insured, a family member, and/or a friend of the insured are “occupying” an insured vehicle. The policy contains a very broad definition of “occupying.” For example, when an insured injured himself in the act of getting out of the car, the Fort Worth Court of Appeals held that the insured was “occupying” the vehicle. This was decided in 1976, and the case was styled, Berry v. Dairyland County Mutual Insurance Co.
The Berry case was decided under the old definition of “occupying,” which included “entering into or alighting from.” “Occupying” is now defined in the Definitions section as “in, upon, getting in, on, out or off.” Under this definition, the insured could also be said to have been occupying the vehicle. The real question is whether this injury resulted from a “motor vehicle accident.” The court found it did, relying upon the PIP statute’s requirement that the injury from which the loss results be sustained in an “accident,” not a “motor vehicle accident.” Berry has been disapproved to the extent it is inconsistent with the supreme court’s holding that “the vehicle must be more than the mere situs of the accident or injury-producing event” which was there decision in the 2004, opinion Texas Farm Bureau Mutual Insurance Co. v. Sturrock.
Although “occupying” is defined broadly, the term is limited by its plain meaning and cannot include every accident in which a vehicle is merely involved. This was stated in the 2008, Texas Supreme Court opinion styled, United States Fidelity and Guarantee Co. v. Goudeau.
In Goudeau, the insured was not “occupying” his car at the time of the accident, when he had exited the car, closed the door, and he walked around the front towards a retaining wall before another car hit his vehicle. The policy defined “occupying” as “in, upon, getting in, on, out, or off” the covered vehicle. The court rejected the insured’s argument that he was occupying the vehicle because he ended up “upon” it after the collision.