Charles G. Miller, IV and wife, Brenda Miller v. Dana R. Mabe and Shane Gant, A/K/A Shane Cooper, and The Glens Falls Insurance Company

947 S.W.2d 151, 1997 Tenn. App. LEXIS 8
CourtCourt of Appeals of Tennessee
DecidedJanuary 8, 1997
Docket01A01-9602CV-00056
StatusPublished
Cited by5 cases

This text of 947 S.W.2d 151 (Charles G. Miller, IV and wife, Brenda Miller v. Dana R. Mabe and Shane Gant, A/K/A Shane Cooper, and The Glens Falls Insurance Company) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Charles G. Miller, IV and wife, Brenda Miller v. Dana R. Mabe and Shane Gant, A/K/A Shane Cooper, and The Glens Falls Insurance Company, 947 S.W.2d 151, 1997 Tenn. App. LEXIS 8 (Tenn. Ct. App. 1997).

Opinion

OPINION

LILLARD, Judge.

This ease involves the interpretation of an insurance policy. After being struck by a vehicle driven by defendant Dana R. Mabe (“Mabe”), plaintiff Charles G. Miller (“Miller”) filed this personal injury lawsuit against Mabe and defendant The Glens Falls Insurance Company (“Glens Falls”). The trial court granted Glens Falls’ motion for summary judgment, holding that Miller was not covered by the uninsured motorist provision of the Glens Falls policy because he was not “occupying” the insured vehicle at the time he was injured. Miller appealed the trial court’s decision. We affirm.

At the time of the accident, Miller was employed as a technician by Cookeville Ca-blevision. Glens Falls provided insurance for Cookeville Cablevision, and Miller’s work van was covered under the policy.

On the evening of December 11,1992, Miller was called to repair a cable television line at a residence. Miller parked his van across from the residence and got out. He left the van’s engine running, left the headlights on, turned on the emergency flashers, and had a beacon light flashing on top of the vehicle. To illuminate his work area, Miller plugged a large spotlight into the van’s cigarette lighter and mounted it above the door to the van. He set out orange safety cones in front of and behind the van.

Miller then got a spool of cable wire from the van and carried it to a telephone pole near a tree. He took a ladder off the van, leaned it against the pole, climbed the ladder, and threw some of the cable wire over a branch of the tree. After that, Miller carried the ladder across the road and leaned it against a second pole.

At that point Miller returned to his van to retrieve his tool belt. The cable wire was lying on the ground across the road. After getting his tool belt, Miller climbed up one of the poles and attached the cable wire. He then climbed down and, using a limb stick, began pulling the cable wire tight and weaving it between the tree branches above the road. Miller was standing in the road with one foot on the yellow middle line, approximately three or four feet from his van, using the limb stick and looking up toward the tree branches and the wire, when he heard a car accelerating and was struck by Mabe’s vehicle. He received serious injuries from the accident, and this lawsuit ensued.

Miller filed his lawsuit against Mabe and passenger Shane Gant for the injuries he sustained in the accident. A copy of the lawsuit was served on Glens Falls, the carrier of the uninsured motorist insurance policy for Cookeville Cablevision, the owner of the van Miller was using. Glens Falls moved for summary judgment, asserting that Miller was not covered under the uninsured motorist insurance policy. The issues regarding the uninsured motorist insurance policy were severed from the plaintiffs tort claims by the trial court.

The Glens Falls insurance policy provided uninsured motorist coverage for:

B. WHO IS 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.”

The policy defined the term “occupying” as “in, upon getting in, on, out or off.” In its motion for summary judgment, Glens Falls *153 asserted that Miller was not covered because he was not “occupying” the covered vehicle at the time of the accident. The trial court granted summary judgment in favor of Glens Falls, finding that Miller was not “occupying” the van at the time of the accident. The trial court found that Miller:

was not vehicle oriented at the time of the accident but that he was highway oriented and work oriented and wire oriented at the time of the accident.

From this decision Miller now appeals.

The facts pertinent to the issue presented are undisputed. Therefore, our inquiry involves only interpretation of the contract, a question of law. Rainey v. Stansell, 836 S.W.2d 117, 118 (Tenn.App.1992). In construing contracts, the terms “should be given their usual, natural and ordinary meaning.” Id. at 118-19. No presumption of correctness attaches to the trial court’s decision on a question of law, such as interpretation of the policy, and we must determine whether Glens Falls is entitled to summary judgment based on the undisputed facts. See Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.1995).

On appeal, Miller asserts that the trial court erred in holding that he was not “occupying” the vehicle at the time of the accident. The interpretation of the term “occupying” in the uninsured motorist provisions of an insurance policy was discussed by the Tennessee Supreme Court in Tata v. Nichols, 848 S.W.2d 649 (Tenn.1993). In Tata, a disabled vehicle was parked on the shoulder of a highway. Id. at 650. The plaintiff pulled his car onto the shoulder, nose-to-nose with the disabled vehicle, in order to “jump-start” the disabled vehicle. Id. The plaintiff was standing between the two vehicles, leaning under the hood of the disabled vehicle, attaching jumper cables to the battery. Id. An uninsured motorist then struck the plaintiffs vehicle. Id. The plaintiff was crushed between the vehicles and seriously injured. Id.

In Tata, as in this case, the uninsured motorist provision of the insurance policies for the two vehicles provided coverage to persons “occupying” a covered vehicle. Id. One policy defined “occupying” as “in or upon or entering into or alighting from” a covered vehicle. Id. The other policy defined “occupying” as “in, upon, getting in, on, out or off’ the covered automobile. Id. The Court focused on whether the plaintiff was “upon” either vehicle at the time of the accident. Id.

The Court first found that the term “upon” was ambiguous and required construction. Id. at 651. It then noted several cases discussing “occupying” and “upon.” Id. at 651-52. In particular, the Court cited Utica Mutual Insurance Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984), in which certain criteria were established to determine whether the. plaintiff was “occupying” a vehicle. Tata, 848 S.W.2d at 652. These criteria required determining whether:

(1) there is a causal relation or connection between the injury and the use of the insured vehicle;
(2) the person asserting coverage must be in a reasonably close geographic proximity to the insured vehicle, although the person need not be actually touching it;
(3) the person must be vehicle oriented rather than highway or sidewalk oriented at the time; and

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947 S.W.2d 151, 1997 Tenn. App. LEXIS 8, Counsel Stack Legal Research, https://law.counselstack.com/opinion/charles-g-miller-iv-and-wife-brenda-miller-v-dana-r-mabe-and-shane-tennctapp-1997.