Uninsured motorist benefits; “Occupying” the covered vehicle; Rohlman v Hawkeye-Sec Ins Co; Rednour v Hastings Mut Ins Co; Westfield Ins Co v Ken’s Serv

The court held that “plaintiff was not ‘occupying’ the” insured vehicle when the accident occurred and thus, “was not an ‘insured’ under the uninsured-motorist portion of” the policy issued by defendant-Federated Mutual Insurance Company. As a result, it affirmed summary disposition for Federated on his claim for uninsured motorist benefits. The case arose from an “accident in which plaintiff was standing outside of a tanker truck when he was struck by a vehicle driven by” defendant-Brown. Plaintiff’s employer owned the tanker truck, which was insured by Federated. The relevant portion of the policy defined the word occupying “as ‘in, upon, getting in, on, out or off.’” The court noted that this “policy language has been interpreted by Michigan appellate courts multiple times[,]” including in Rohlman, Rednour, and Westfield. After reviewing these cases, the court found that “plaintiff was obviously not ‘in’ the tanker truck when the accident occurred, nor was he getting in, getting on, getting out of, or getting off the tanker truck when he was hit by Brown’s vehicle.” This meant that the only question was whether he “was ‘upon’ the tanker truck so as to be ‘occupying’ it. Despite the lack of definitive guidance as to what ‘upon’ means when used to define ‘occupying,’” the court held that, given how it and the “Supreme Court have construed the term when used in this context, there is no genuine issue of material fact that plaintiff was not ‘upon’ the tanker truck so as to be ‘occupying’ it when he was struck by Brown’s vehicle. The parties agree that, when the accident occurred, plaintiff was outside of the tanker truck with both feet planted on the ground, with only his hand touching” it. As explained in Rednour, physical contact alone does not “‘establish that a person is “upon” a vehicle such that’” he or she is “occupying” it. The court also noted that “plaintiff here was even less ‘upon’ the tanker truck than the plaintiff in Westfield was ‘upon’ his tow truck” where the plaintiff there “‘had both hands on [the tow truck] and was leaning against [it] for balance and support at the moment of impact.’” The court was “bound to follow Westfield even if it was wrongly decided,” and that case only strengthened its “conclusion that plaintiff was not ‘occupying’ the tanker truck at the time of the accident.”