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Was the claimant “occupying” the vehicle? All you need to know about uninsured/underinsured insurance coverage Part 3

Posted by Brad Ponder | Sep 08, 2020 | 0 Comments

In the third blog post in a seven-part series, our Birmingham car accident attorneys explain the occupancy requirement for uninsured/underinsured motorist auto insurance coverage.

Insurance policies containing UM/UIM (uninsured/underinsured motorist) coverage may frequently contain an occupancy requirement. They may include language requiring that the insured was “in, upon, getting in, on, out, or off” of the vehicle at the time of the accident, or similar language. The language of the policy will be interpreted by the court, who will construe the language in the light most favorable to the insured.

The Alabama Supreme Court has examined whether a person is occupying a vehicle for the purposes of UM/UIM coverage on two occasions.

In the first case, Cook v. Aetna, the plaintiff was an inmate at the Demopolis City Jail on a work release program who walked across the street from his employer's vehicle to get coffee from a convenience store. On the day of the accident, the plaintiff left his jacket and lunch box in the Demopolis Police Department building. Noticing that the driver of his employer's vehicle was waiting on him, the plaintiff crossed the street, and, about a foot from the vehicle, an uninsured driver struck him. Because the evidence showed that the plaintiff would have had to reenter the Police Department Building to retrieve his belongings before getting into the car, the plaintiff was not “in, upon, getting in, on, out, or off” the vehicle. The Court distinguished “getting in” the vehicle from “approaching” the vehicle. Therefore, the plaintiff was not occupying the vehicle for the purposes of the insurance policy.

In the second case, Lambert v. Coregis, the insurance policy contained an identical definition of occupying a vehicle: “in, upon, getting in, on, out, or off.” Here, the plaintiff was working at a construction site installing a water main along the side of a road in Mobile County. While the plaintiff was standing in-between his own company truck and another company truck parked along the side of the road about 18 feet apart, a car swerved off of the road and struck the plaintiff. Caught up in the side mirror, the plaintiff was dragged along until he hit his own truck's bumper, after which he rolled under the truck, sustaining disabling injuries. The Court could not determine whether the injuries were caused by contact with either vehicle. The Court ruled that the plaintiff was not “on” or “upon” the vehicle and therefore was not occupying the vehicle at the time of the accident. Mere contact with the bumper was not sufficient to “occupy” the vehicle.

If you have been in an accident involving an uninsured or underinsured motorist and you're not sure whether your policy covers your losses, contact our car accident attorneys for a free case evaluation at 888-201-0305.

About the Author

Brad Ponder

Brad specializes in complex litigation, including class actions and mass torts in both state and federal court. He represents consumer and business owners in a variety of lawsuits, including class actions and high-stakes litigation against major corporations. 


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