Robson v. Lightning Rod Mutual Insurance

393 N.E.2d 1056, 59 Ohio Misc. 61, 13 Ohio Op. 3d 280, 1978 Ohio Misc. LEXIS 92
CourtCourt of Common Pleas of Ohio, Franklin County, Civil Division
DecidedApril 27, 1978
DocketNo. 77CV-08-3600
StatusPublished
Cited by3 cases

This text of 393 N.E.2d 1056 (Robson v. Lightning Rod Mutual Insurance) is published on Counsel Stack Legal Research, covering Court of Common Pleas of Ohio, Franklin County, Civil Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Robson v. Lightning Rod Mutual Insurance, 393 N.E.2d 1056, 59 Ohio Misc. 61, 13 Ohio Op. 3d 280, 1978 Ohio Misc. LEXIS 92 (Ohio Super. Ct. 1978).

Opinion

Martin, J.

This matter came on to be heard on plaintiff’s motion for summary judgment filed November 10, 1977. A non-oral hearing was set for December 6, 1977, and several memoranda were filed subsequently by both parties. The only affidavit filed is that of the plaintiff, Dennis C. Robson. The sole issue involved in this case is whether or not plaintiff is to be considered an insured under defendant Lightning Rod Mutual’s uninsured motorists provision.

[62]*62■ The plaintiff’s affidavit sets out the facts upon which this claim is predicated. On January 15, 1977, plaintiff was injured by the negligence of an uninsured motorist. At the time of the accident, plaintiff had been loading a stereo into the trunk of John D. Zalesld’s auto and was struck from behind. Prior to the accident, plaintiff had been a passenger in Zaleski’s auto and had visited a friend in the hospital twice and gone to a basketball game. Apparently, it wa,s their intention to take the stereo to a friend’s house for the evening. Plaintiff claims coverage under Zaleski’s automobile coverage — Policy No. LA 73666 issued by defendant, Lightning Bod. Defendant does not dispute any of the facts recited; the sole issue being one of law, the matter is thus properly before the court on the summary judgment proceeding. The relevant portions of the defendant’s insurance policy are set out below:

“Coverage D — Protection Against Uninsured Motorists Coverage.
“Persons Insured. The following are insureds * * *
“(b) any other person while occupying an insured automobile.
“Definitions. As used in this policy: occupying means in or upon, entering into or alighting from;”

Thus, the issue becomes whether or not plaintiff was in or upon, entering into, or alighting from the Zaleski vehicle while loading the stereo set into the automobile’s trunk.

Although there .are cases in Ohio construing a similar clause with respect to medical payments coverage, this would appear to be a case of first impression in Ohio as to uninsured motorists coverage. Defendant urges that the court adopt a strict interpretation; plaintiff appears to ask the court to adopt a use test.

" In searching foreign jurisdictions for case law, this court has found what appears to be a split of authority. The minority courts apply a very strict, technical definition: of the wording set out above. For example, the Virginia Supreme Court of Appeals held that a good Samaritan who was leaning over the engine of a stalled car checking the wiring was not covered even though the stalled! car was struck by [63]*63an uninsured motorist. The court required that the word upon he interpreted in some connection with occupying; since the good Samaritan was in a position hearing no relation to the occupancy of the auto, he was not an insured tinder the uninsured motorists coverage. Pennsylvania National Mut. Gas. Ins. Co. v. Bristow (1966), 207 Va. 381, 150 S. E. 2d 125. Even more strict is the test applied by a Michigan Court of Appeals. That court requires that the claimant be physicially touching the vehicle in question for coverage to apply. Nickerson v. Citizens Mut. Ins. Co. (1975), 52 Mich. App. 40, 216 N. W. 2d 484, reversed in 393 Mich. 324, 224 N. W. 2d 896 (1975), discussed below.

What appears to be the majority view is summarized by Professor Widiss in A Guide to Uninsured Motorist Coverage (1976 Supp.) at page 36, Occupying, Section 2.11:

“* * * these opinions seem to be defining coverage either in terms of a reasonable geographic perimeter around an insured vehicle, or a kind of relationship between the vehicle and the claimant — such that so long as the passengers, drivers or passengers are within that area or engaged in a task related to the operation of the vehicle they are within the scope of coverage.”

These more liberal opinions include Smith v. Girley, (1971), 260 La. 223, 255 S. 2d 748, in which a deputy sheriff was injured in a collision between a stalled automobile and an uninsured motorist. At the time of 'the accident, he had been attempting to start the stalled vehicle, and the Supreme Court of Louisiana held that it is not necessary for a plaintiff to prove, as an essential element of his claim, that he was physically touching the insured vehicle at the time of impact. In Cocking v. State Farm Mutual (1970), 6 Cal. App. 3d. 965, 86 Cal. Reptr. 193, the First District Court of Appeals held that uninsured motorists coverage extended to a driver who was using the insured’s auto permissively. Having encountered a snowstorm, the claimant was preparing to put on tire chains. Although the claimant was between one and four feet from the vehicle at impact, the court held that he was an insured un[64]*64der the uninsured motorists coverage, stating, at page 971, as follows:

“ * * * plaintiff was performing an act physically and directly related to the car. * * * His injury * * * occurred while he was ‘using’ the car and while he was ‘upon’ the Volkswagen within the meaning of the policy * * V’

A similar uninsured motorists provision was extended to include the passenger of a taxicab who was injured by an uninsured motorist while standing outside the vehicle, paying his fare. The court noted that:

“* * * a person has not ceased ‘occupying’ a vehicle until he has severed his connection with it — i. e., when he is on his own without any reference to it. If he is still vehicle-oriented, as opposed to highway-oriented, he continues to ‘occupy’ the vehicle.” Allstate Ins. Co. v. Flaumenbaum (1970), 62 Misc. 2d 32, 308 N. Y. Supp. 2d 447, 462.

In State-Wide Ins. Co. v. Murdoch (1969), 31 A. D. 2d 978, 299 N. Y. Supp. 2d 348, affirmed 25 N. Y. 2d 674, 306 N. Y. Supp. 2d 678, the court extended coverage to a passenger who was hit by an uninsured motorist after alighting from the vehicle. Again, the claimant was not touching the insured vehicle at the time of impact. Fischer v. Aetna Ins. Co. (1971), 65 Misc. 2d 191, 317 N. Y. Supp. 2d 669, and Ins. Co. of North America v. Perry (1964), 204 Va. 833, 134 S. E. 2d 418, seem to indicate the limits of the majority view. In Fischer, supra, the plaintiff had stopped to assist an injured man on the highway. The plaintiff parked his automobile in a parking lot, removed the ignition key and walked back approximately 25 feet to administer first aid. While walking to a nearby firebox, he was struck by a hit-and-run driver, but was denied coverage under the uninsured motorists provision. Similarly, in Perry, supra, the court held that a sheriff’s deputy who was approximately 165 feet away from his vehicle while serving a warrant when struck by an uninsured motorist was not an insured for purposes of the uninsured motorists coverage. In both of these cases, it is clear that both claimants were no longer in a reasonable geographic perimeter around an insured vehicle, nor were they performing an act directly related to the car; they had clearly severed [65]*65their connection and were no longer vehicle oriented, but had become highway oriented.

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Bluebook (online)
393 N.E.2d 1056, 59 Ohio Misc. 61, 13 Ohio Op. 3d 280, 1978 Ohio Misc. LEXIS 92, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robson-v-lightning-rod-mutual-insurance-ohctcomplfrankl-1978.