Michigan Court of Appeals; Docket No. 300941; Published
Judges Sawyer, Whitbeck, and M.J. Kelly; 2-1 (with Kelly dissenting)
Official Michigan Reporter Citation: 295 Mich App 610; Link to Opinion 
Link to Dissent
On October 31, 2013, the Michigan Supreme Court DENIED Leave to Appeal; Link to Order
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Interpretation of Insurance Contracts
CASE SUMMARY:
In this 2-1 published Opinion, the Court of Appeals held that a tow truck driver, who was injured after being struck by an oncoming driver while attempting to retrieve a disabled police vehicle, was not “occupying” the tow truck as defined under the contract for insurance because he “was not in the vehicle, nor was he getting in, on, out, or off the vehicle . . . and had been out of the vehicle for several minutes and was operating the levers of the tow truck.” Therefore, the driver was not covered under the Westfield insurance policy, which required that the driver be “occupying” the vehicle in order to be covered under the policy.
In this declaratory action, Westfield Insurance sought a determination of whether Defendant Robins was entitled to underinsured motorist coverage under an insurance policy issued to Defendant Ken’s service. Mark Robins was a tow truck driver employed by Ken’s Service, and he was injured after being dispatched to assist a disabled police vehicle. After arriving at the scene, Robbins got out of is vehicle and proceeded to hook up the disabled police vehicle. Then, while operating the tow-control levers, which were positioned on the side of the tow truck, he was struck by an oncoming car driven by Ashley See. Consequently, Robins was seriously injured, suffering a broken right arm and a protruding break of the right tibia/fibia, which he claimed crippled him for life.
Following the accident, the insurer for the owner of the vehicle See was driving (Auto Owners) agreed to tender full policy limits of $100,000 to Robins in order to settle the claim. Robins then made a claim for underinsured motorist coverage under the Westfield policy, which was issued to Ken’s Service for the tow truck. Westfield then denied the claim, reasoning that under the language of the policy, Robins was not “occupying” the tow truck at the time of the injury as was required for him to be covered under the policy. Specifically, the Westfield policy defined “occupying” as “in, upon, getting in, on, out or of,” and Westfield took the position that Robins was not occupying the vehicle because he was outside the vehicle operating the tow controls when he was injured.
Westfield then filed a declaratory action for a determination of its obligations to provide coverage to Robins under the insurance contract. Shortly thereafter, Ken’s Service and Robins moved for summary disposition, arguing that “Robins was leaning on the tow truck for balance and support when See struck him . . . while he was operating the towing controls, which were located on the driver’s side of the tow truck” and was therefore “upon” the tow truck at the time of the injury. In response, Westfield argued that Robins was not “upon” the vehicle because he had both feet on the ground and was outside the truck for several minutes.
Ultimately, the trial court ruled in favor of Westfield, finding that Robins was not “occupying” the vehicle under the language of the policy. While the trial court determined that Robbins would satisfy the “occupying” requirement if it could be shown that he was “upon” the vehicle when he was struck, the trial court focused on the word “occupying” and concluded that coverage should depend on a person’s connectedness with the activity of being a driver or passenger. The trial court then concluded that Robbins was operating the vehicle as “towing machine” at the time of the accident, which was unrelated to being a driver or passenger.
This appeal followed, and the Court of Appeals considered whether the trial court erred in interpreting the language of the Westfield Insurance contract. The court affirmed the trial court’s ruling, holding that the trial court properly determined that Robbins was not “occupying” the vehicle under the language of the contract for insurance.
In reaching this result, the court noted that the Michigan Supreme Court interpreted nearly identical contractual language in the case of Rednour v Hastings Mutual Co, 468 Mich 241 (2003), which relied on the case of Rohlman v Hawkeye-Security Ins Co, 442 Mich 520 (1993), where the Supreme Court “interpreted the meaning of ‘occupant’ under the no-fault statute.” In this regard the Court of Appeals explained:
“The Rohlman I Court declared that a person could not be an "occupant" under the no-fault act unless they were "physically inside" the vehicle when struck. However, since the language of the policy broadly defined occupancy as "in, upon, getting in, on, out or off" the insured vehicle, the Rohlman I Court remanded the case for this Court to consider whether the plaintiff's conduct fell under the broader definition of "occupying" stated in the policy. On remand, this Court noted [in Rohlman II] that physical contact with the insured person is required to be "upon" the vehicle, although the person need not be completely physically supported by the vehicle.
While the Rednour Court agreed with the Rohlman II statement that a person did not need to be physically inside the vehicle to be "upon" it, it nevertheless held that physical contact alone is insufficient to show that "the person was 'upon' the vehicle so as to be 'occupying' the vehicle."
After further noting that the Redenour Court held that the Plaintiff there, who was “outside the vehicle, approximately six inches away from it . . . , was not in the vehicle, nor was he getting in, on, out, or off of the vehicle when he was injured," the Court concluded that Robbins was not “upon” the tow truck even though he had “both hands on and was leaning against the tow truck for balance and support at the moment of impact.” The court reasoned that Robins was not “in the vehicle, nor was he getting in, on, out, or off the vehicle,” and further that “Robins had been out of the vehicle for several minutes and was ultimately operating the levers of the tow truck' when he was injured.
Accordingly, the court concluded that the trial court properly interpreted the word “upon” in finding that Robins was not “occupying” the vehicle within the meaning of the Westfield insurance policy.
Judge Kelly dissented, believing that the trial court erred in interpreting the word “upon.” Conversely, Kelly would “reverse in its decision to grant summary disposition in favor of plaintiff Westfield Insurance and instead grant summary disposition in favor of defendants Ken’s Service and Mark Robins.”
