Opinion
C.A. No. 00C-03-335(SCD)
Submitted: July 25, 2001
Decided: October 25, 2001
MEMORANDUM OPINION
The question presented in this multiple vehicle automobile accident case is which of the three insurance policies covering three of the vehicles at the scene is responsible for the payment of Personal Injury Protection ("PIP") and\or Underinsured Motorist ("UIM") benefits.
21 Del. C. § 2118.
The defendant insurance carriers have filed various cross motions for summary judgment. For the reasons set forth below, I conclude that PIP and UIM benefits are due from the tow truck the plaintiff was directing at the time of the accident because under insurance law, plaintiff was an "occupant" of that vehicle for purposes of such coverages.
Facts
The facts of this accident are not in dispute. On April 2, 1997, CPG, Inc. ("CPG"), employed plaintiff as a truck mechanic. He was dispatched by CPG to I-95 to examine a disabled box truck ("box truck") parked on the shoulder of the road. Plaintiff drove CPG's van ("van") to the scene. Plaintiff parked the van five to twenty feet behind the box truck. He examined the box truck and determined that it had to be towed in for repairs. Plaintiff called CPG and requested that a tow truck be sent to the scene. A CPG employee drove CPG's tow truck ("tow truck") to the scene. In order to direct the backing of the tow truck, plaintiff stood between the tow truck and the box truck, on the shoulder, near a guardrail. At that time, a car ("car") driven by a drunk driver swerved off the road, glanced off the van, and struck the box truck. The box truck was pushed forward and to the right, pinning plaintiff between the box truck and the guardrail. The car then spun around and hit the tow truck.
Standard of Review
A grant of summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.
Emmons v. Hartford Underwriters Ins. Co., Del. Supr., 697 A.2d 742, 744-45 (1997).
Status of Insurance Coverages
Plaintiff settled his claim against the drunk driver for his policy limits of $15,000. The two CPG vehicles, the tow truck and the van, were insured by USFG, but they had different policy limits. The box truck was insured by Nationwide. Plaintiff's personal vehicle, which was not involved in the accident, was insured by State Farm Mutual Automobile Insurance Company ("State Farm"). He asserts a claim against State Farm for UIM only.USFG's Coverage for the Tow Truck USFG's Policy Provisions
PIP:
We will pay, in accordance with Del. C. Ann. Tit. 21, chapter 21, subchapter 1, Personal Injury Protection benefits to or for the benefit of the "injured person" who sustains "bodily injury" caused by an "accident" arising out of the ownership, maintenance or use of a motor vehicle as a motor vehicle and incurred within two years from the date of the "accident."
"[I]njured person" is defined as:
a. Any person injured while occupying the "insured motor vehicle";
b. Any person injured in an "accident" involving the "insured motor vehicle"; or
c. You or any "family member" injured while a pedestrian or while occupying any "motor vehicle," other than the "insured motor vehicle."
UIM:
WHO IS AN INSURED.
1. You.
2. If you are an individual, any "family member."
3. Anyone else "occupying" a covered "auto" or a temporary substitute for a covered "auto." The covered "auto" must be out of service because of its breakdown, repair, servicing, loss or destruction.
4. Anyone for damages he or she is entitled to recover because of "bodily injury" sustained by another "insured."
USFG's Opening Brief at Exhibit D-39 (emphasis added).
Id. at Exhibit D-43 (emphasis added).
Id. at Exhibit D-36.
"[O]ccupying" is defined as "in, upon, getting in, on, out or off."
Id. at Exhibit D-38.
PIP
The pertinent portion of the USFG policy covers an "injured person" who is injured in an accident arising out of the use of a motor vehicle. Thus, there are two requirements: "injured person" status and use. An "injured person" is any person injured while "occupying" the vehicle. Occupying is defined in the policy as "in, upon, getting in, on, out or off." That definition was interpreted in National Union Fire Ins. Co. of Pittsburgh v. Fisher, to include a person who is either "(a) within a reasonable geographic perimeter of the vehicle or (b) engaged in a task related to the operation of the vehicle." To satisfy the reasonable geographic test, "the claimant must be in, entering, exiting, touching or within reach of the covered vehicle." To satisfy the task test, the vehicle's use has to be more than an integral tool, it must be "directly related to the operation of [the] vehicle."Here, the plaintiff fails the first prong of the test, but satisfies the second. The plaintiff was not within the reasonable geographic perimeter of the tow truck since he stood ten to fifteen feet away. But he was engaged in a task related to the operation of the tow truck. The plaintiff directed the tow truck driver as he backed the tow truck to a position where the towing mechanism could be engaged. The plaintiff's act of guiding the moving tow truck so it could attach to the box truck is directly related to the operation of the tow truck. That conduct makes the plaintiff an occupant of the tow truck for PIP purposes.
Next, the analysis turns to whether the plaintiff meets the requirements of "use." The test to determine whether injuries arose out of the use of a vehicle is:
(1) whether the vehicle was an "active accessory" in causing the injury- i.e., "something less than proximate cause in the tort sense and something more than the vehicle being the mere situs of the injury;" (2) whether there was an act of independent significance that broke the causal link between use of the vehicle and the injuries inflicted; and (3) whether the vehicle was used for transportation purposes.
Nationwide General Ins. Co. v. Royal, Del. Supr., 700 A.2d 130, 132 (1997).
The plaintiff was using the tow truck at the time of the accident. First, the tow truck was not just the mere situs of the accident. It was moving backward, toward the plaintiff and at his direction. If the plaintiff had not been directing the tow truck from the front of the box truck, he would not have been hit. Second, there is no evidence of any act of independent significance that breaks the causal link between the plaintiff directing the tow truck and his being hit while in that position by a box truck put in motion through the negligence of a drunk driver. Third, the tow truck was used for transportation purposes since it was in the act of moving backwards at the time of the accident to engage and transport the disabled box truck. The plaintiff is an "injured person" who was "using" the tow truck at the time of the accident. Thus, he is entitled to benefits under USFG's PIP coverage.
UIM
Because the plaintiff was an occupant of the tow truck for PIP purposes, he is also an occupant for UIM purposes. As an occupant of the tow truck, the plaintiff must look to this policy first for UIM coverage. As it turns out, there is no UIM coverage available.
Nationwide's Coverage for the Box Truck Nationwide's Policy Provisions
PIP:
We will pay Personal Injury Protection benefits for loss and expense incurred because of "bodily injury" sustained by an "insured" and caused by an accident involving an "auto. . . ."
USFG's Reply Brief at Exhibit C-22.
The benefits are limited to "bodily injury" while "occupying" or while a "pedestrian" through being struck by an automobile, not insured under Maryland law. "[O]ccupying" means in or upon or entering into or alighting from. "[P]edestrian" is defined as "any person not `occupying' `an auto,' including an individual in, on, or alighting from any other vehicle operated by animal or muscular power. . . ."
UIM:
WHO IS AN INSURED.
1. You.
2. If you are an individual, any "family member."
3. Anyone else "occupying" a covered "auto" or a temporary substitute for a covered "auto." The covered "auto" must be out of service because of its breakdown, repair, servicing, loss or destruction.
4. Anyone for damages he or she is entitled to recover because of "bodily injury" sustained by another "insured."
Id. at Exhibit C-23.
Id.
Id.
Id. at Exhibit C-20.
"[O]ccupying" is defined as "in, upon, getting in, on, out or off."
Id. at Exhibit C-21.
The box truck directly struck the plaintiff, raising the issue of whether that event is sufficient to entitle him to coverage under the Nationwide policy. The policy was issued under Maryland law, so its terms differ somewhat from the USFG policies. Since both the PIP and UIM coverages are limited to occupants of a motor vehicle, the analysis for the two is the same.
Maryland law, as interpreted in Gorham v. Guidant Mutual Ins. Co., requires broad construction of its uninsured/underinsured statutes. In Gorham, the following five factors were used to determine occupancy clauses:
Gorham v. Guidant Mutual Ins. Co., 80 F. Supp.2d 540, 544 (D.Md. 2000).
(1) whether there is a causal relation or connection between the injury and the use of the insured vehicle;
(2) whether at the time of the encounter with the uninsured motorist, and regardless of whether the claimant was in actual physical contact with the insured vehicle, the person seeking coverage was in reasonable geographic and temporal proximity to the insured vehicle;
(3) whether the claimant was "vehicle-oriented" rather than highway- or sidewalk-oriented at the time of the accident;
(4) whether the claimant was engaged in a transaction essential to the use of the insured vehicle at the time of the encounter with the uninsured motorist; and
(5) whether, within "rational limits" dictated by the facts of the case, the claimant intended to initiate or maintain "a certain relationship with the insured car at the time of the accident.
Id. at 546.
The Gorham test is similar to the Delaware test forth in Fisher. Applying Gorham to the facts here, it is clear that plaintiff was not an occupant of the box truck. At no time was the box truck being used as a motor vehicle. The plaintiff was in the vicinity of the box truck only because he was directing the tow truck toward it. The box truck was propelled into him, but at that time it was merely an object set in motion by the negligence of the drunk driver; it was not an operating motor vehicle.
Nationwide's policy does not cover the plaintiff for either PIP or UIM.
USFG's Coverage for the Van PIP and UIM
As noted, a person cannot be an occupant of more than one vehicle. Plaintiff was not an occupant of the van because he was more physically removed from it than from either the tow truck or the box truck. He was not engaged in any activity related to the van. His only connection to it was having arrived at the scene in it earlier on the day of the accident. Consequently, he was neither in the reasonable geographic perimeter of the van, nor engaged in a task associated with its usage. Thus, the USFG policy for the van does not cover the plaintiff.
State Farm's UIM Coverage
The plaintiff seeks UIM coverage from State Farm which provided coverage for his personal automobile at the time of the accident. The argument advanced by State Farm is that USFG should respond in the first instance to the plaintiff's claims for PIP and UIM benefits. In view of the rulings contained herein, and the absence of any UIM coverage for the tow truck, State Farm is directed to supplement its filings within 30 days from the date of this decision, stating its position regarding coverage. Any interested party may respond to the State Farm submission within 15 days of its filing.
Conclusion
USFG's motion for summary judgment is GRANTED regarding the van and DENIED regarding the tow truck. Nationwide's motion for summary judgment is GRANTED. State Farm's motion for summary judgment is deferred.
IT IS SO ORDERED.