Insurance Law: Physical Contact And 'Occupying' Under A UIM Policy

, The Connecticut Law Tribune

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Is physical contact with the insured vehicle necessary for a person, other than a named insured, to be "occupying" a motor vehicle under a UIM policy? The majority of jurisdictions across the country hold that physical contact is not a requirement. Instead these courts eschew a hard-and-fast rule mandating contact in favor of a multi-factorial approach which better lends itself to fulfilling the laudable purpose of UIM coverage. This multi-factorial approach avoids results between comparable fact patterns which confound fairness and reasoned justice.

Consider, for example, a boyfriend who was given permission to use his girlfriend's car to run to the local convenience store to buy butter needed for Thanksgiving dinner. Then, while returning to the car after purchasing the butter, and an arm's length from the door, he is struck and seriously injured by an underinsured car. Assuming the girlfriend's UIM policy defines "occupying" as "in, upon, getting in, on, out of or off" the car, should the boyfriend be able to recover UIM benefits under this policy?

If physical contact is required, then the answer is no. What if the boyfriend's finger was one inch from the door handle but had not yet clutched the handle when he was struck? Again, if physical contact is required, then the answer is no. Now suppose his finger had actually just touched the handle right at the moment of impact? Then under the physical contact rule the answer suddenly becomes yes. Such bizarre results occur by applying a hard-and-fast rule which turns upon physical contact. Similar fact patterns abound as, for instance, when employees are injured while using their employer's vehicles and when friends are injured when not actually inside another's car.

The purpose of UIM coverage is to allow recovery of damages that would have been recoverable had the tortfeasor maintained a policy, in the case of uninsured motorist coverage, or an adequate policy of liability insurance, in the case of underinsured motorist coverage. As stated in Gohel v. Allstate Insurance Co., 61 Conn.App. 806, 816-817(2001), "the public policy embodied in these statutes favor indemnification of accident victims unless they are responsible for the accident." The Gohel court also stated that the UIM statutes are "remedial in nature and designed to protect people injured by [uninsured and underinsured] motorists" and that "remedial statutes should be construed liberally in favor of those whom the law is intended to protect."

The term "occupying" is defined in the Connecticut UIM statutes as "to be in or upon or entering into or alighting from the vehicle." Connecticut General Statutes Section 38a-363(c).

In Testone v. Allstate Insurance Co., 165 Conn. 126(1973), the Connecticut Supreme Court in construing the term "upon" required physical contact to trigger coverage. In the later Connecticut Appellate Court case of Allstate Insurance Co. v. Howe, 31 Conn. App. 132 (1993), although the court cited Testone, supra as requiring physical contact when construing the term "upon," the court discusses the term "getting into" more liberally. The Howe court stated the claimant "had an intent to reenter the vehicle after a brief interruption in her travels. She was not simply standing by the car. She had exited the car for reasons related to its operation and was returning directly to resume her travels when the accident occurred."

In the subsequent Connecticut Appellate Court case of Gomes v. Massachusetts Bay Insurance Co., et al, 887 Conn. App. 416 (2005), the court relied on the physical contact test in denying UIM benefits to a volunteer fireman who had exited his vehicle while responding to an emergency and was struck and injured by an underinsured vehicle as he was directing traffic. The facts of Gomes did not lend themselves to a more liberal interpretation as the facts did in Howe, supra where the claimant was in the process of getting into the vehicle.

Most jurisdictions have rejected the physical contact test. See, for example, Tata v. Nichols, 848 S.W.2d 649 (Tenn. 1993). In Tata, the court held that the plaintiff was "occupying" the insured vehicle when he was standing between two vehicles while attempting to jump start one of the vehicles and was injured when another vehicle ran into the back of one of the cars.

The court in Tata noted that "the majority of jurisdictions hold that 'occupying,' as defined in the policies before the court, includes those who can establish a certain "relationship" with the insured car at the time of the accident. In setting out the criteria to consider in determining whether this relationship exists, courts have looked to factors such as the proximity between the claimant and the insured car in time, distance, and geography, as well as the intent of the claimant."

In Utica Mutual Insurance Co. v. Contrisciane, 473 A.2d 1005 (1984) the court held that the decedent was "occupying" his employer's automobile where he was directed by a police officer who arrived at the scene to bring his driver's license up to police car and was then struck and killed by a passing automobile as he stood by the police car.

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