Occupancy and Vehicle Orientation-A Review of the Case Law Following Contrisciane
This blog contains my memorandum of law involving the issue of “occupancy” of a motor vehicle and contains a review of the case law since the seminal case of Utica Mutual Ins. Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984). If you would like to discuss this blog, call me at 610 642 7676.
The question at issue is whether plaintiff was the “occupant” of a motor vehicle at the time of this incident. If he was not, he is eligible for Assigned Claims Plan benefits totaling $15,000.00. Otherwise, he would be eligible to receive only PIP benefits from American Independent totaling $5,000.00. There were no Uninsured Motorist benefits on the American Independent policy.
What constitutes occupancy continues to be litigated, even though the Pennsylvania Supreme Court established four indicia of occupancy 25 years ago. In Utica Mutual Ins. Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984), the Court opined that occupancy can be demonstrated by showing each of the following:
(1) A causal connection between the injury and the use of the insured vehicle;
(2) Reasonably close geographic proximity to the insured vehicle, although one need not actually be touching it;
(3) Vehicle orientation, rather than highway or sidewalk orientation at the time of the accident; and
(4) Engagement in a transaction essential to the use of the vehicle.
The Utica policy defined “occupying” as “in or upon or entering into or alighting from” the vehicle. The plaintiff had already been involved in a motor vehicle accident with another driver. Police arrived and asked him for his license and registration. He went to his car to retrieve them, returned to the side of the parked police car, and was struck by an underinsured vehicle. The issue for the court was whether the claimant was sufficiently “vehicle oriented” so as to have been “occupying” his vehicle, even though he was standing 97 feet from it. The Utica Court said that he was, finding that he was at all times engaged in transactions essential to the continued use of his vehicle. “It was only because of the mandated requirements of the statute and the police officer that decedent found himself physically out of contact with his vehicle.” Id. at 1008. This explains why his distance from his car did not prevent a conclusion that he still occupied it. This extreme situation is not present in our case.
Vehicle occupancy is usually defined as being “in or upon” the vehicle, “getting in, on, out or off” the vehicle, or “entering into or alighting from” it. The Utica Court, nevertheless, chose a more liberal approach to the definition of “occupying” since this would be most consistent with the Uninsured Motorist Act. That Act was intended to protect individuals injured “through the negligent use of those highways by others.” Id. at 1009. The Court, accordingly, found that Mr. Contrisciane occupied his employer’s vehicle, thereby permitting him to stack coverage for 15 vehicles. In the present case, an expansive reading of “occupying” would have the opposite effect since there is no Uninsured Motorist coverage available under the American Independent policy. Thus, to be consistent with the Uninsured Motorist Act, a more literal, less liberal, definition of “occupying” is appropriate.
Further, the more liberal approach taken in Contrisciane “focuses upon whether the person claiming benefits was performing an act (or acts) which is (are) normally associated with the immediate “use” of the auto.” Id. (emphasis added). First, Plaintiff, Kelly Andrews’s actions were not “normally associated” with the use of the van nor were they taken immediately prior to its use. Loading a mattress onto a van is not normally associated with using a vehicle. It is highly unusual. And second, since the keys and driver were not even at the scene, loading the mattress was not immediately preparatory to the van’s use. For all of these reasons, Contrisciane supports a finding that Plaintiff did not “occupy” the van when he was struck by defendant.
There are three Superior Court cases that are factually on point. Like the present case, they each involve whether an individual who was loading a motor vehicle would be considered an occupant of that vehicle. In the case most factually similar to ours, the Superior Court held that a man who was injured while removing a boat from the roof of his car was not “occupying” it. Dull v. Employers Mut. Cas. Co., 420 A.2d 688 (Pa. Super. 1980.) In Dull, the plaintiff drove his auto to a lake, parked, got out and was injured when he began to remove his boat from the roof of his car. The Court noted that the “common meaning of the word ‘occupy’ is ‘to fill up (a place or extent) or to hold possession of’”. Id. At 689. Since the plaintiff in that case had gotten out of the car, he did not occupy it. Similarly, plaintiff, Kelly Andrews was outside the van at the time of the accident and was involved with loading a mattress onto its roof. Dull provides strong support for concluding that Kelly Andrews did not “occupy” the van.
In Huber v. Erie Ins. Exchange, 587 A.2d 333 (Pa. Super. 1991), the Court excluded PIP coverage for a man injured while loading materials into his car. Mr. Huber was standing at the rear of his vehicle at the time. Mr. Huber asserted that under Omodio v. Aetna Life and Cas., 549 A.2d 570 (Pa. Super. 1989), coverage could not be excluded. In Omodio, the plaintiff was also loading his truck when he was injured. The Superior Court held that he occupied the vehicle. However, the crucial distinction here is that Mr. Omodio was standing inside the truck while he was loading it. Thus, the holding that he occupied the vehicle does not support the proposition that one who is loading a vehicle necessary occupies it. Rather, it was based on his position inside of the vehicle. The Court in Huber, therefore disagreed with the plaintiff’s assertion that Omodio supported his claim. Accordingly, Erie did not have to pay PIP benefits to Mr. Huber since he did not occupy the vehicle it insured. Similarly, Mr. Andrews, was outside the vehicle during the loading process. Like Erie in Huber, American Independent should not have to pay PIP benefits to Plaintiff.
The Court in Huber performed the four step Contrisciane analysis and focused on the final factor. It concluded that “loading materials into his vehicle is not a transaction essential to the use of the vehicle, although it may certainly be a transaction convenient to the vehicle operator.” Huber, supra at 336. Therefore, following the Contrisciane line of cases, Mr. Huber was not “vehicle-oriented.” Similarly, while loading the mattress back onto the van may have been convenient to Mr. Andrews and his companions, it was not an act essential to its use.
Webster’s Dictionary defines “essential” as “of, relating to, or constituting essence, inherent, of the utmost importance, basic, indispensable, necessary, all important, critical, imperative, integral.” The van was fully operable without the mattress and there was no legal reason why Kelly Andrews and his companions could not have driven away in search of rope, leaving the mattress by the road side. Changing a flat tire is an act “essential” to a vehicle’s use. Replacing a mattress is not.
Finally, in Martin v. Recker, 552 A.2d 668 (Pa. Super. 1988), the Superior Court confronted a situation where the plaintiff had one foot on the doorjamb of the trailer and the other foot on the floor of the ramp leading to the trailer. He was loading a box into the trailer when he was injured. Nevertheless, the Court reversed the trial court and held that he was not an “occupant” of the vehicle and stated that he “was merely undertaking the separate task of loading the trailer at the time of the accident.” Id. at 676. Similarly, Kelly Andrews was engaged in the separate task of loading the mattress and thus did not “occupy” the van. If Mr. Martin who was touching the vehicle and loading a box into it did not “occupy” the vehicle, all the more so, Kelly Andrews who was not touching the van and was loading a mattress onto the van did not “occupy” it.
Defendant has focused on the fact that, but for Ashton Long’s negligence, Kelly Andrews eventually would have gotten back into the van and continued on his way. In other words, defendant suggests that the key element is the fact that the incident occurred mid-trip, rather than at its beginning or end. Since Kelly Andrews was mid-trip, he still, defendant suggests, occupied the vehicle when he was struck by Lynch. Defendant thereby seeks to distinguish Dull and Huber. While there is some logic to this approach with regard to Mr. Dull, who had at least temporarily completed his journey prior to being injured, it makes no sense at all with regard to Mr. Huber. Mr. Huber, again, was injured while loading materials into his car prior to beginning his journey. Whether the injury occurred mid-trip or at the beginning of it, had the injury not occurred, Huber would have gotten into his vehicle and traveled in it. Thus, the fact that Kelly Andrews also would have continued his journey but for defendant’s negligence is of little relevance to the issue of “occupancy”. The mid-trip distinction is without merit.
None of the cases discuss this issue at all, simply because it is of such small significance. There are numerous cases holding that an individual did not occupy the vehicle even when he was injured mid-trip. See Curry v. Huron Ins. Co., 781 A.2d 1255 (Pa. Super. 2001), app. den. 568 Pa. 720, 797 A.2d 913 (2002); Downing v. Harleysville Ins. Co., 412 Pa. Super. 15, 602 A.2d 871 (1992); Aetna Casualty & Surety Co. v. Kemper Ins. Co., 657 F. Supp. 213 (E.D. Pa. 1987); Fox v. Liberty Mut. Ins. Co., No. 829 – 1998 (Dauph. Co. 2000).
Since plaintiff, Kelly Andrews was not an “occupant” of any motor vehicle at the time he was struck by defendant, Ashton Long, he is not eligible to receive first party benefits under 75 Pa.S.C.A. Section 1711. He is therefore eligible for Assigned Claims Plan benefits.