An appellate court in Texas has affirmed a trial court's decision denying personal injury protection (“PIP”) benefits to an insured who alleged that he was injured while helping to move metal roofing sheets after they had been unloaded from a delivery truck.
The Case
After a hailstorm damaged the roof of Alan Kiely's home in Wimberly, Texas, Mr. Kiely ordered metal roofing sheets from a home center to repair the roof. They arrived in the bed of a delivery truck from the home center that was driven by its employee, Brian David Reeves. The metal sheets were bound in three separate bundles in accordance with their length.
To prepare for the delivery of the metal sheets, Mr. Kiely had placed wooden pallets in front of his home so that Mr. Reeves could place the metal sheets on the pallets. Mr. Kiely, who was using a cane because of a previous knee surgery, was outside when Mr. Reeves arrived. After learning that Mr. Reeves did not have a forklift, Mr. Kiely asked him to position the truck so its lift “could be used to tilt the [truck's] bed and unload the metal sheets onto the pallets.” Mr. Reeves complied with Mr. Kiely's suggestion, but allegedly misaligned the truck with the pallets. Disregarding Mr. Kiely's suggested method of unloading the metal sheets, Mr. Reeves began moving the first bundle of metal sheets by hand, trying to unload them by himself. As he was pulling the first bundle of metal sheets, it slid off the truck bed, pinning him between the ground and the metal sheets.
Mr. Reeves screamed for Mr. Kiely to help him. Mr. Kiely grabbed a corner of the bundle of metal sheets and tried to lift it. As he did so, Mr. Kiely said, he heard a “pop” and immediately felt a sharp pain in his lower back. Mr. Kiely then located a plank, pushed it under the corner of the bundle, and lifted it high enough to free Mr. Reeves. Mr. Kiely fractured two vertebrae in his lower back and had to have several surgeries.
Mr. Kiely sought PIP benefits from his personal auto insurer, Texas Farm Bureau Casualty Insurance Company, for the medical expenses he incurred following the incident. Farm Bureau determined that Mr. Kiely had no right to those benefits and Mr. Kiely sued.
Arguing that Mr. Kiely's injuries had not resulted from a motor vehicle accident and that he was not a “covered person” under the insurance policy, Farm Bureau filed, and the trial court granted, its motion for summary judgment.
Mr. Kiely appealed, arguing among other things that his injuries stemmed from a motor vehicle accident and that he was a “covered person” as defined by the insurance policy.
The Appellate Court's Decision
The appellate court affirmed.
In its decision, the appellate court ruled that Mr. Kiely's injuries had not resulted from a motor vehicle accident, as required under the Farm Bureau insurance policy for him to recover PIP benefits.
The appellate court explained that, other than the truck being used to transport the metal sheets to Mr. Kiely's home, it was not directly involved in the circumstances leading up to Mr. Kiely's injuries. The appellate court pointed out that Mr. Kiely was not exiting the vehicle or entering the vehicle when he sustained his injuries, and he was not injured while removing, or trying to remove, the metal sheets from the bed of the truck. Instead, the appellate court ruled, the “injury-producing event” occurred as a direct result of Mr. Kiely's “intentional act of lifting the metal sheets” off Mr. Reeves.
The appellate court also was not persuaded by Mr. Kiely's contention that his injuries resulted from the “use of a motor vehicle,” given that Mr. Kiely was not injured while loading or unloading the truck but, rather, was injured when he lifted the already unloaded metal sheets off Mr. Reeves. The appellate court ruled that it could not find that Mr. Kiely was injured as a result of a motor vehicle accident.
Finally, it decided that Mr. Kiely also was neither occupying the vehicle when he sustained his injuries nor struck by the vehicle and, therefore, that he was not a “covered person” under the policy and not entitled to PIP benefits.
The case is Kiely v. Texas Farm Bureau Casualty Ins. Co., No. 06-19-00012-CV (Tex. Ct. App. July 22, 2019).
Steven A. Meyerowitz
Steven A. Meyerowitz, a Harvard Law School graduate, is the founder and president of Meyerowitz Communications Inc., a law firm marketing communications consulting company. He may be contacted at [email protected].