Allied Mutual Insurance v. Action Electric Co.

593 N.W.2d 275, 256 Neb. 691, 1999 Neb. LEXIS 77
CourtNebraska Supreme Court
DecidedApril 9, 1999
DocketS-97-1223
StatusPublished
Cited by22 cases

This text of 593 N.W.2d 275 (Allied Mutual Insurance v. Action Electric Co.) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allied Mutual Insurance v. Action Electric Co., 593 N.W.2d 275, 256 Neb. 691, 1999 Neb. LEXIS 77 (Neb. 1999).

Opinions

Wright, J.

NATURE OF CASE

Action Electric Company, Inc. (Action), and Connie W. Emry, personal representative of the estate of Thomas D. Emry [693]*693(Emry’s estate), appeal from a summary judgment granted in favor of Allied Mutual Insurance Company (Allied) on the grounds that Emry was not “using” the vehicle for purposes of insurance coverage at the time he was struck and killed by another vehicle. The issue presented is whether a person who has stopped and exited a vehicle in order to assist victims of a traffic accident is “using” the vehicle for purposes of a policy of automobile insurance.

SCOPE OF REVIEW

The interpretation of an insurance policy is a question of law, in connection with which an appellate court has an obligation to reach its own conclusions independent of the determination made by the lower court. American Family Ins. Group v. Hemenway, 254 Neb. 134, 575 N.W.2d 143 (1998).

FACTUAL BACKGROUND

Thomas Emry (Emry) died September 17, 1993, while attempting to help persons involved in an automobile accident which Emry witnessed. Emry and his family had been to a high school football game and were returning home, traveling southbound on Highway 31. While stopped at a stop sign at the crossroads of Highways 31 and 36, Emry witnessed a car and a pickup truck collide in the intersection.

Emry exited his vehicle, telling his family he was going to see if anyone was hurt. As Emry approached the intersection, he raised his hands to warn other drivers, and he was struck by an underinsured automobile which traveled through the intersection at approximately 55 m.p.h. Emry was approximately 25 feet from his vehicle at the time he was struck.

The vehicle Emry was driving was covered by a “business auto policy” issued by Allied to Action. Emry was not listed as an insured on the policy, but he was using the insured vehicle with permission. The policy included the following provisions:

SECTION n - LIABILITY COVERAGE
A. COVERAGE
We will pay all sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies, caused by an “accident” [694]*694and resulting from the ownership, maintenance or use of a covered “auto.”
1.WHO IS AN INSURED
The following are “insureds”:
a. You for any covered “auto.”
b. Anyone else while using with your permission a covered “auto” you own, hire or borrow ....
NEBRASKA UNDERINSURED MOTORISTS COVERAGE
A.COVERAGE
1. We will pay all sums the “insured” is legally entitled to recover as damages from the owner or driver of an “underinsured motor vehicle”. . . .
B. 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”.. . .
F. ADDITIONAL DEFINITIONS
The following are added to the DEFINITIONS Section:
2. “Occupying” means in, upon, getting in, on, out or off.

PROCEDURAL BACKGROUND

Emry’s estate and Action filed a claim with Allied for under-insured motorist benefits, and Allied filed this action for declaratory judgment, seeking a determination of the scope of coverage under the policy. The issue before the trial court was whether the commercial automobile insurance policy issued by Allied provided underinsured motorist coverage for the damages resulting from the death of Emry. Allied contended that the policy was unambiguous and provided underinsured motorist [695]*695coverage for Emry as a permissive driver only if he was “occupying” the covered vehicle, since he was not a named insured under the policy. Emry’s estate and Action conceded that he was not a named insured under the policy. However, they asserted that under Neb. Rev. Stat. § 60-577 (Reissue 1993) (now codified at Neb. Rev. Stat. § 44-6408 (Reissue 1998)), Allied could not limit underinsured motorist coverage to persons “occupying” the vehicle, when the liability portion of the policy covered persons “using” the vehicle. Emry’s estate and Action contended that Emry was using the vehicle at the time he was struck and that, thus, he should be covered by the underinsured motorist portion of the policy.

The trial court found that even assuming that the coverages must be identical for insureds under the policy, Emry was not “using” the vehicle when he was struck and killed by the under-insured driver. The court distinguished between named insureds and their family members who are protected when they are operating or are passengers in a motor vehicle, as well as when they are engaged in other activities, and a permissive driver’s coverage under a policy extending underinsured motorist coverage which depends on and is connected to use of the vehicle to which the policy applies. Relying upon Farmers Union Co-op Ins. Co. v. Allied Prop. & Cas., 253 Neb. 177, 569 N.W.2d 436 (1997), and National Union Fire Ins. Co. v. Bruecks, 179 Neb. 642, 139 N.W.2d 821 (1966), the court concluded that the injuries to and the death of Emry did not arise out of the “use” of the insured vehicle.

The trial court found that Emry was struck at least 25 feet from the vehicle and was not engaged in activities connected to use of the vehicle such as changing a flat tire, loading or unloading materials or other articles carried by the vehicle, or other actions that were causally related to its use. Rather, the court determined that the vehicle was merely the means by which Emry arrived at the location of the accident. The court concluded that under the policy issued, the underinsured motorist coverage was not applicable to the accident that resulted in Emry’s death and entered judgment accordingly in favor of Allied. Emry’s estate and Action appeal.

[696]*696ASSIGNMENT OF ERROR

Emry’s estate and Action claim the trial court erred in finding that the commercial automobile insurance policy issued by Allied did not provide coverage for the damages resulting from the death of Emry.

ANALYSIS

Underinsured Motorist Statute

It is conceded that Emry was not a named insured under the policy issued by Allied. The policy states that underinsured motorist coverage is provided only for persons “occupying” the insured vehicle, which is defined in terms which imply actual contact or close physical proximity to the insured vehicle.

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Allied Mutual Insurance v. Action Electric Co.
593 N.W.2d 275 (Nebraska Supreme Court, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
593 N.W.2d 275, 256 Neb. 691, 1999 Neb. LEXIS 77, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allied-mutual-insurance-v-action-electric-co-neb-1999.