Weatherford insurance attorneys need to know the various ways courts look at what it means to be “occupying” a vehicle when making a claim for benefits by way of an auto insurance policy.
One of those ways is discussed in the 1972, Fort Worth Court of Appeals case, Hart v. Traders & General Insurance Company.
Here is some relevant information about this case.
Thomas Hart sued Traders seeking to recover on one of its automobile insurance policies that defendant had issued to the Thomas’s brother, Cecil Hart. Hart contended that he was an insured upon the occasion in question and was entitled to recover under the uninsured motorist coverage provided for in the policy for bodily injuries that he sustained when injured in a collision between an uninsured automobile and his brother’s parked car on which he was working at the time.
The trial judge granted a summary judgment for Traders and this appeal followed.
Cecil Hart had been driving his automobile that was covered by the Traders policy when it became disabled on the highway. He sent word into town for his brother to come and help him fix the car. Thomas did go to aid his brother and they decided that the fuel pump was the cause of the trouble. Cecil Hart got under the car and installed a new fuel pump, but from his position he was unable to connect one of the gas lines to the fuel pump. The hood of the car was raised. It appeared that Thomas, working from above, would be better able to connect the gas line. He was handed a wrench to work with and was lying with his weight upon the fender of the car, not remembering for sure whether his feet were in touch with the ground, when the car he was lying on and working on was struck by an uninsured automobile causing injury to Thomas.
By actual experiment he has found that when he placed his body in the position it was in at the time of the wreck that almost his entire weight was being supported by the fender of the car. Thomas was 5′ 8″ tall and could not comfortably lean across the fender and reach down into the area where the fuel pump was located and use both hands to connect the gas line to the lump without placing the weight of his upper body and trunk upon the fender of the car. Although it was possible for his feet to touch the ground from the position he was in when hurt, the majority of his weight was, while in this position, supported by the car fender.
The provisions of the policy that are material are hereafter set out.
‘TRADERS & GENERAL INSURANCE COMPANY Agrees with the insured . . .
‘PART IV–FAMILY PROTECTION COVERAGE ‘COVERAGE J FAMILY PROTECTION (DAMAGES FOR BODILY INJURY) To pay all sums which the insured . . . shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury . . . sustained by the insured, caused by accident and arising out of the . . . use of such uninsured automobile; . . ..
‘DEFINITIONS . . . under Part IV: ‘insured’ means: (a) the named insured . . . (b) Any other person while occupying an insured automobile; . . .
“insured automobile’ means: (a) an automobile described in the policy for which a specific premium charge indicates that coverage is afforded . . ..
“occupying’ means in or Upon or entering into or alighting from.’
The controlling question in the case is: Was Thomas at the time he was hurt ‘upon’ the insured automobile within the meaning of the policy provisions?
If he was ‘upon’ the insured car when struck and hurt by the uninsured automobile, he was ‘occupying’ the insured car within the meaning of the provisions of said policy and was an ‘insured’ and was covered by the provisions of Part IV of the policy that are above set out. If Thomas was not ‘upon’ the insured car at the time, the trial court correctly sustained the motion for summary judgment.
Regardless of what definition or meaning the word ‘occupying’ might otherwise have, the parties to the insurance contract involved here stipulated that as used in the policy in question the word ‘occupying’ meant one who was in or Upon or entering into or alighting from an insured automobile.
This court then discussed at length the meaning of “occupying” but ultimately ruled that the trial judge erred by granting the summary judgment.
Each of these situations have to be looked at on an individual basis and compare the facts with the wording in the policy.
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