Court of Appeals Narrowly Interprets Term “Occupying” in Underinsured Policy Endorsement to Exclude Tow Truck Operator from Recovering Benefits Under Policy

In this case, the Court of Appeals applies a narrow interpretation to the defined term “occupying” in the insurance policy under consideration, which was defined to include “in, upon, getting in, on, out or off” of the vehicle.  The Court of Appeals majority (Judges Whitbeck and Sawyer) applied a narrow definition to exclude coverage for a tow truck operator who was seriously injured when he was struck by another car while operating the tow-truck’s PTO apparatus to pull a police cruiser from a ditch.  The insurer of the automobile that struck the plaintiff settled for the $100,000 policy limits. The plaintiff then sought to invoke the uninsured / underinsured endorsement on the tow-truck’s policy.  That policy provided $1,000,000 in coverage.

The dissent (Judge M.J. Kelly) makes a good argument that based on prior precedent (the Michigan Supreme Court decision in Rednour v. Hastings, 468 Mich 241 (2003) and subsequent case law by the Supreme Court and Court of Appeals, particularly in Rohlman v. Hawkeye (On Remand), 207 Mich App 334 (1994)) and the fact that the plaintiff was leaning on and using the truck for support at the time he was operating the PTO to pull the cruiser from the ditch meant that he was “occupying” the vehicle for purposes of the underinsured / uninsured endorsement.

This is a published opinion with a 2-1 majority.  Read it here:  Westfield v. Ken’s

About cjtucker06

Owner of law firm since July 2014; Handles all types of appellate matters and assists other lawyers with complex litigation and insurance coverage issues; Admitted to the Supreme Court of the United States, the Sixth Circuit Court of Appeals and the State Bar of Michigan; Expertise in prosecuting and defending appeals with several significant successes in the Sixth Circuit Court of Appeals, the Michigan Supreme Court and the Michigan Court of Appeals; Author of briefs amicus curiae in the Michigan Supreme Court for the Michigan Defense Trial Counsel and the Insurance Institute of Michigan; Represents Insurance Companies, Major International Business, Governmental Entities, Law Enforcement Officers and County Sheriffs. Board of Directors, Michigan Defense Trial Counsel Amicus Committee Co-Chair, Michigan Defense Trial Counsel Military - Retired Major in the Judge Advocate General (JAG) Corps of the United States Army, Brigade Judge Advocate and Staff JAG officer for the Maneuver Training Center, Camp Grayling, Michigan; Recipient of the Army's Meritorious Service Medal (the highest medal of honor available to Soldiers serving in non-combat roles); 2012 Graduate of the Judge Advocate Officer Advanced Course, at The Judge Advocate Legal Center and School, Charlottesville, Virginia. United States Navy Reserves, Combat Warfare Qualification, January 1989 to July 2003 Former law clerk to Justice Stephen J. Markman, Michigan Supreme Court, Research Attorney, Michigan Court of Appeals. Insurance Coverage Associate Plunkett Cooney; Environmental Law Attorney at Squire Sanders, now Squire Patton Boggs; Master's Degree in Environmental Law; Environmental Law Scholar, ALI/ABA Washington, D.C., Juris Doctorate, Vermont Law School, Environmental Editor, Vermont Law Review; Treasurer and Finalist, Moot Court Advisory Board.
This entry was posted in May It Please the Court, Michigan Court of Appeals Published Opinions, Recent Judicial Dispositions. Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s