Opinion
Nos. C8-98-511, C5-98-692.
Filed September 15, 1998.
Appeal from the District Court, Anoka County, File No. C1-95-14246.
Paul A. Kaster, (for appellant)
James Jardine, (for respondent Illinois Farmers Insurance)
Jerome R. Klukas, (for respondent Milbank Insurance)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant Jeremy Cartwright was injured as an uninsured vehicle attempted to pull the truck in which he had been a passenger out of a ditch. He claims the trial court erred in determining that he was not an occupant of the truck for purposes of obtaining uninsured motorist benefits. We affirm because we conclude that under the plain language of the truck's insurance policy, appellant was not an occupant of the truck at the time of his injury.
FACTS
On the late evening of November 19, 1992, appellant was one of two passengers in a truck owned and operated by Troy Thiede. After the truck slid into a ditch in rural Isanti County, the parties agreed to attempt to jerk Thiede's vehicle out of the ditch by connecting a "snap strap" between the bumpers of Thiede's truck and a passerby's vehicle. Cartwright stood 10-15 feet off to the side of the two vehicles, which were 15-25 feet apart, and directed the unidentified driver's actions. When Thiede's truck was almost out of the ditch, its bumper broke loose and hit appellant, injuring his leg.
Appellant initiated an action against Thiede's insurer, respondent Illinois Farmers Insurance Company (Illinois), claiming, among other benefits, uninsured motorist coverage. Illinois denied the uninsured motorist coverage claim on the basis that appellant was not "occupying Thiede's vehicle at the time of his injury." The trial court agreed, and this appeal followed.
DECISION
Illinois's policy provides for uninsured motorist coverage for the insured, the insured's family, or "[a]ny other persons while occupying [the] insured car." The definitional section of the policy interprets "[o]ccupancy" as "in, on, getting into or out of" the insured vehicle. The Minnesota No-Fault Act does not define "occupy" or "occupancy."
Consistent with the policy definition of "occupancy," we conclude that at the time of appellant's injury he was not an occupant of Thiede's truck. See Allied Mut. Ins. Co. v. Western Nat'l Mut. Ins. Co. , 552 N.W.2d 561, 563 (Minn. 1996) (where "occupancy" defined in policy as "in, upon, getting in, on, out or off," court construed "occupy" consistent with "straightforward" policy language); Flourowave, Inc. v. Chubb Group of Ins. Cos. , 545 N.W.2d 678, 681 (Minn.App. 1996) ("court must not read an ambiguity into the plain language of a policy in order to create coverage where none otherwise exists"). Because of his physical distance from the truck, appellant was not "in" or "on" the insured vehicle when injured, nor was he "getting into or out of" the insured vehicle at the time of his injury. This construction of the language "adhere[s] to the policy definition," as we are directed to do by Allied Mutual , 552 N.W.2d at 563. Although appellant relies on the "reasonable geographic perimeter" and "continuing relationship" definitions of "occupancy," Allied Mutual declined to follow prior case law that applied these broad definitions to the term "occupy." Id. ; see, e.g., Klein v. United States Fidelity Guar. Co. , 451 N.W.2d 901, 903-04 (Minn.App. 1990) (defining "occupy" broadly as "reasonable geographic perimeter around a vehicle or a continuing relationship between a vehicle and the claimant"), review denied (Minn. Mar. 27, 1990). Thus, we conclude that the trial court did not err in granting summary judgment to Illinois because, consistent with the definition of "occupancy" in Illinois's policy, appellant was not occupying Thiede's truck at the time of his injury. See Cummings v. Koehnen , 568 N.W.2d 418, 420 (Minn. 1997) (setting forth standard of review for summary judgment appeals).