Insurance lawyers will see situations where there is a question whether or not the “uninsured motorist” (UM) provisions of a policy apply to provide coverage. An interesting case was heard in the Amarillo Court of Appeals dealing with this issue. It is styled, Jesse Salinas v. Progressive County Mutual Insurance Co.
Jesse appeals a summary judgment in favor or Progressive.
Jesse was a passenger in a one vehicle accident that was stolen. No one had permission to drive, occupy, or otherwise use the vehicle.
Jesse submitted a UM claim that was denied by Progressive, citing the following exclusion: “Coverage … will not apply … to bodily injury sustained by you or a relative while using any vehicle, other than a covered auto, without permission of the owner of the vehicle or the person in lawful possession of the vehicle.”
This declaratory judgment action was filed seeking a determination that the UM exclusion did not apply because Jesse was not “using” the vehicle, but merely “occupying” it.
The only question is whether Jesse was “using” the vehicle at the time of the accident. If he was, the policy exclusion applies.
The policy does not define “using.”
The policy defines “occupying” as “in, upon, or getting in, on, out, or off.” Jesse contends that, because “occupying” means something different than “using,” and because he was undeniably “occupying” the vehicle, he could not have been “using” it. The Court disagreed.
When policy terms are not defined, the Court gives them their ordinary and generally accepted meaning.
“Use” and “occupy” are not mutually exclusive. As used in auto insurance policies, “use” is a general catchall designed and construed to include all proper uses of the vehicle. Texas courts broadly define “use” of a motor vehicle in the context of insurance policies. “Use” means “to put into action or service; to employ for or apply to a given purpose.”
At the time of the accident, Jesse was not only an occupant, but also a passenger being transported. The employment of a vehicle as a means of transportation, whether as operator or as passenger, is a generally accepted use of a vehicle. Jesse’s status as a passenger, alone, constitutes “use” of the vehicle.
The accident here satisfies the Texas three part test stated by the Texas Supreme Court. The accident arose out of the vehicle’s “inherent nature” as an automobile, that is, as a means of transportation; Jesse was injured while inside the vehicle; and the injury producing event was a car wreck.