cluded in the definition of occupying, and
Bennett was on the car’s hood. The district
court was reversed.
A different result was reached in a Montana case, which was cited by the insurer
in the Bennett appeal. In the case of Estate
of Terry L. Richerson v. The Cincinnati Insurance Company, the Montana Supreme
Court ruled that a person who is run over
and dragged by a vehicle cannot be considered to be “occupying” that vehicle. In
this accident, Richerson was a pedestrian,
like Bennett, who was injured when he was
backed over by a concrete truck, was caught
in the truck’s driveshaft, and was dragged a
number of feet. He later died. Richerson’s
estate requested that Cincinnati provide
medical payments under the policy carried
on the truck.
The policy defined “occupying” as meaning “in, upon, getting in, on, out or off,” not
exactly identical to the definition in Bennett, but close. This time the argument by
the Estate was that Richerson, when he was
caught in and transported by the truck,
was “upon” it and, therefore, occupying
it, which qualified him as an “insured” for
coverage. Cincinnati countered that he did
not meet the definition of insurance and
was not entitled to coverage. This time the
court sided with the insurer.
In Montana the courts have applied the
“reasonable connection” test to determine
whether an injured person is an occupant
of a vehicle or not. Under the test, the court
stated, it must be determined that the claimant’s activities at the time of injury “were so
reasonably connected” to the insured auto
that he can be said to be occupying it. The
reasonable connection test, the court said,
permits a broad review of the facts instead
of concentrating on whether the injured
person is physically on or upon the vehicle.
The supreme court reasoned that
Richerson had no contact with or connection to the truck other than having been
struck by it. He was not working with it,
he was not entering it, he was not exiting
it. The accident involved only incidental
contact, which was insufficient to trigger
coverage under the policy’s definition of
“occupying.” The court upheld the lower
These situations, while similar, ended
with vastly different rulings. While the Sixth
Circuit focused on the definition of occupying within the policy, the Montana Supreme
Court employed the reasonable connection
test and ended with the opposite ruling.
What a difference a court makes!
Diana B. Reitz, CPCU, AAI, is editorial
director for the professional publishing
division of The National Underwriter
Co., Summit Professional Networks,
which includes FC&S Online. She may be
reached at dreitz@SummitProNets.com.
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