In support of its motion, Progressive cited Mr. Puente's deposition, at which he testified that:

- On the morning of the accident, he drove to a parking lot at Rick's Main Roofing at 26 Fitch Street in Norwalk;

- He left for a job assignment and returned to the parking lot at Rick's Main Roofing sometime between 3 and 3:30 p.m;

- He parked his vehicle with the front end of his vehicle facing into the parking space;

- He gathered papers he needed to take into Rick's Main Roofing, stepped out of the vehicle, and walked toward the rear of the vehicle;

- After he walked past the rear of his vehicle, he noticed a Honda traveling toward him and was forced to jump onto the front end of the Honda to avoid being hit; and

- He suffered injuries to his left foot after it was caught under the front end of the Honda.

The trial court granted Progressive's motion, finding, among other things, that Mr. Puente had failed to raise a genuine issue of material fact that he had been “occupying” an insured vehicle when he was injured.

Mr. Puente appealed, arguing that a genuine issue of material fact existed regarding whether he was entitled to recover pursuant to the policy because he had been “occupying” an insured vehicle when was injured.

The Progressive Policy

The Progressive policy stated:

“Occupying” means in, on, entering or exiting. . . . 

The UIM endorsement to the policy defined “Insured” to include:

any person occupying your insured auto

The appellate court affirmed.

In its decision, the appellate court explained that the Progressive policy defined “occupying” as “in, on, entering or exiting,” but it did not define the term “exiting.” The appellate court added, however, that the definition of “occupying” used by the policy was consistent with (although not identical to) the definition set forth in the UIM statute, General Statutes § 38a-363 (c), defining “occupying” a vehicle as “to be in or upon entering into or alighting from the vehicle.”

The appellate court pointed out that the statute had been interpreted to require physical contact with the insured vehicle for one to “occupy” it.

It then rejected Mr. Puente's argument that the physical contact test did not apply to him because the Progressive policy used the term “exiting” rather than “alighting” in defining the word “occupying,” ruling that the case law was “clear” that “occupying” a vehicle required physical contact.

A “proximity test,” the appellate court decided, was “far too nebulous a standard” to use, “would be difficult to apply,” and was “not rooted necessarily in the language of the policy or, more generally, in [Mr. Puente's] relationship with the vehicle at the time he suffer[ed] any injury.”

Accordingly, the appellate court concluded that because it was undisputed that Mr. Puente had parked his vehicle, stepped out, walked past the rear of his vehicle, and was not in physical contact with his vehicle when he was struck by an oncoming vehicle, he had not been “in, on, entering or exiting” his vehicle at the time of the accident and the trial court had properly granted Progressive's motion for summary judgment.

The case is Puente v. Progressive Northwestern Ins. Co., No. AC 39708 (Conn. Ct.App. May 15, 2018). Attorneys involved include: John C. Turner, Jr., for the appellant (plaintiff); John W. Cannavino, Jr., with whom, on the brief, was Alexandra J. Zeman, for the appellee (defendant).