“Occupying” Said To Have A Narrower Meaning When In Exclusion

Steven A. Keslar By Steven A. Keslar

The Plaintiff, Jazmine Washington, was struck by an uninsured motorist. The Plaintiff was residing with her grandmother who was insured by State Farm with an auto insurance policy with UM coverage limits of $100K. Plaintiff leased her own car, not listed on the State Farm policy, with state-minimum liability limits and no UM coverage. This case claimed UM coverage for Plaintiff under the State Farm policy and brought a bad faith claim for denial of coverage.

There was no dispute Plaintiff was a “resident relative” but the policy contained an exclusion from UM coverage for bodily injury sustained while any insured is operating or “occupying” a motor vehicle owned by the insured or a resident relative that is not listed on the policy.  The issue was whether Plaintiff was “occupying” her vehicle at the time of the accident. Her testimony was that she was walking around the rear of her vehicle intending to get into her car to drive away to get her children. She was almost at the driver’s door, facing her car, and reaching for the handle when she was struck.

The parties agree that whether UM coverage applied depended on whether appellant was “occupying” the vehicle at the time of the accident. The twist here from the traditional analysis of whether an insured is “occupying” a vehicle is that the court was interpreting an exclusion from coverage, not finding coverage. The court noted that the body of case law liberally construing the word “occupying” considers whether to provide coverage, not whether it should be excluded. Applying such a broad interpretation of the word “occupying” would contravene the Supreme Court’s holding in Westfield Ins. v. Hunter, which says an exclusion must be interpreted to apply only to that which is clearly intended to be excluded. Despite applying a narrower interpretation to the word “occupying,” the Tenth District still held that the plaintiff was “occupying” the vehicle because she was “entering” the vehicle as evidenced by her position to the car, her reaching for the handle, and her intent to get in and drive away. The Court did not agree that it was necessary for her to make physical contact with the auto for her to be “occupying” it. Since she was “occupying” the auto, the UM exclusion applied and summary judgment for the insurer denying coverage and dismissing the bad faith claim was affirmed.

Washington v. Evans, 10th Dist. Franklin No. 20AP-305, 2021-Ohio-587