UM/UIM Coverage in Pennsylvania: Establishing "Occupancy" of Vehicle as Basis for Qualifying as an Insured

Pennsylvania -- UM/UIM

UM/UIM endorsements subject to Pennsylvania's Motor Vehicle Financial Responsibility Law often define the "insured" to include not only the named insured, but also any other person "occupying" the covered motor vehicle. Occupancy is usually defined as being "in or upon" the vehicle, "getting in, on, out or off" the vehicle, or "entering into or alighting from" it.

What constitutes occupancy continues to be litigated, even though the Pennsylvania Supreme Court established four indicia of occupancy 25 years ago. In Utica Mutual Ins. Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984), the court opined that occupancy can be demonstrated by showing:

(1) A causal connection between the injury and the use of the insured vehicle;

(2) Reasonably close geographic proximity to the insured vehicle, although one need not actually be touching it;

(3) Vehicle orientation, rather than highway or sidewalk orientation at the time of the accident; and

(4) Engagement in a transaction essential to the use of the vehicle.

The Utica policy defined "occupying" as "in or upon or entering into or alighting from" the vehicle. The plaintiff had already been involved in a motor vehicle accident with another driver. Police arrived and asked him for his license and registration. He went to his car to retrieve them, returned to the side of the parked police car, and was struck by an underinsured vehicle. The issue for the court was whether the claimant was sufficiently "vehicle oriented" so as to have been "occupying" his vehicle. The Utica Court said that he was, holding he was at all times engaged in transactions "essential to the continued use of his vehicle" and that it was only because of the initial accident, and the police officer's request for information, that he was outside his vehicle in the first place.

Courts finding occupancy post-Utica most often involved emergency-type workers (police, ambulance personnel, tow truck drivers) who were struck while performing their duties, or were otherwise still in the course of their employment, after having exited their vehicles. In Lynn v. Westport Ins. Corp., 2007 U.S. App.Lexis 28855 (3d.Cir. 2007), a tow truck driver stopped for a disabled vehicle and was walking toward it when he was struck by a passing motorist. The court held that he was still "occupying" his tow truck: His job was to respond to stranded motorists, which required him to get out of the tow truck. In doing his job, he remained "vehicle oriented" and was engaged in a transaction essential to the use of the tow truck. Similar results are found in St. Paul Fire & Marine Ins. Co. v. Rhein, 2008 U.S. Dist. LEXIS 57536 (E.D. Pa. 7/29/08)(police officer struck during traffic stop); Property and Cas. Ins. Co. of Hartford v. Caperilla, 2004 WL 1551739 (E.D. Pa. 2004)(police officer); and Selective Ins. Co. of America v. Jaskoloka, 292 F.Supp. 2d 624 (M.D. Pa. 2003)(township worker).

Cases finding no occupancy often focus on why the claimant left his vehicle in the first place. There is an implicit suggestion that engagement in "a transaction essential to the use of the vehicle" means an act in the course of one's employment (tow truck driver) or one's professional duties (police officer), as distinguished from the act of a Good Samaritan. In Downing v. Harleysville Ins. Co., 412 Pa.Super. 15, 602 A.2d 871 (1992), the claimant had been riding in one vehicle, insured by Prudential, when he and his companion happened upon a disabled vehicle (flat tire). That car was insured by Harleysville. Downing offered to help change the tire and was holding the tire jack when he was struck by a third vehicle. He sued both Prudential and Harleysville for first party benefits.

Applying the Utica test, the court held that Downing had not been "occupying" either of the vehicles (i.e., the one in which he had ridden to the scene of the accident nor the one whose driver he was assisting) at the time of the accident. Downing's relation to the Prudential vehicle, "which he had exited at the time of the accident to come to the aid of a disabled vehicle, was not as an 'occupant'."

The Downing Court cited Aetna Casualty & Surety Co. v. Kemper Ins. Co., 657 F. Supp. 213 (E.D. Pa. 1987), another Good Samaritan case. The driver (Smith) was looking under the hood of the truck, and Kendricks was standing nearby, when both were struck by an oncoming vehicle. Addressing the "occupancy" issue, the court stated:

Smith and Kendricks became 'highway-oriented' when they left the Cadillac for the purpose of helping Perry with his pick-up truck. Moreover, their actions were not essential to the use of the Cadillac. Unlike the situation in Contrisciane, where the person had to go to the police car before he could continue using his car, the actions of Smith and Kendricks were completely unrelated to the continued use of the Cadillac.

An occupancy argument was rejected in Fox v. Liberty Mut. Ins. Co., No. 829 - 1998 (Dauph. Co. 2000)(photojournalist videotaping accident scene; struck by motorist as he stood outside vehicle while filming report)("not engaged in any transaction essential to the use of the vehicle"). See also, Curry v. Huron Ins. Co., 781 A.2d 1255 (Pa. Super.2001), app. den. 568 Pa. 720, 797 A.2d 913 (2002)(airport worker not occupying nearby vehicle, even though it was equipped with beacon to mark his position on runway; presence there unrelated to use of vehicle).

Distinguishing these cases is a challenge, and the Pennsylvania Supreme Court has not weighed in on the issue for 25 years. One key is that a claimant must meet all four of the criteria set forth in Contrisciane; if he fails to meet any one of the criteria, then he cannot successfully establish "occupancy." Equally important, however, is the claimant's relationship to the vehicle (both literal and figurative) at the time of the accident.

* Brigid is an associate in our Harrisburg, Pennsylvania, office who can be reached at (717) 651-3710 bqalford@mdwcg.com.

Defense Digest, Vol. 15, No. 2, June 2009