November 25, 2019
The Supreme Court of New Hampshire has ruled that a man was not entitled to coverage under his automobile insurance policy for injuries he suffered when he was struck by an uninsured vehicle while walking to his parked car. The case is Lavoie v. Peninsula Ins. Cos, No. 2018-0711 (N.H. Nov. 8, 2019).
David Lavoie was walking toward his parked car after eating dinner to retrieve a tire that he had repaired at the request of a client, the person he had just finished eating dinner with, when he was hit by another car while crossing a street to reach his vehicle. He claimed that his auto insurance policy through The Pennsylvania Insurance Company (Pennsylvania Insurance) should cover his injuries because he was "occupying" his vehicle at the time of the accident. Pennsylvania Insurance denied the claim, and Lavoie sued. The trial court granted summary judgment in favor of Pennsylvania Insurance, agreeing that Lavoie was not "occupying" his vehicle at the time of the accident. The dispute went all the way to the Supreme Court of New Hampshire.
Lavoie argued that although he had "reconnected" with his vehicle when he began walking back toward it, because he was physically oriented toward the vehicle and his attention was also oriented toward the vehicle. He also argued that whether or not he was "getting in" the vehicle depended on his "perspective on where he was going and what he was doing" when he was injured, not on a "myopic" focus on the facts.
The policy provided that Lavoie would be insured only if he was "occupying" the vehicle at the time of the accident; "occupying" being defined as "in, upon, getting in, on, out, or off."
The court discussed the "vehicle orientation test" to determine if Lavoie was "occupying" the vehicle at the time of the injury. The test requires that a claimant is engaged in an activity essential to the use of the vehicle when the accident occurs, but does not require that the claimant have physical contact with the vehicle. The court said that if a claimant had severed connection to the vehicle than the claimant was no longer occupying the vehicle, and that to be "occupying" a vehicle, the claimant must be "vehicle-oriented" instead of oriented towards a highway or sidewalk.
If Lavoies theory stood, there would be coverage any time a claimant was traveling towards the insured vehicle, regardless of how long the journey to the vehicle is, or what the claimant does during the journey.
When asked about his focus when the accident occurred, Lavoie noted that he was looking at the curb he was about to step on. The court found that although crossing the road was "incidental to his work-related errand, which centered on his use of the insured vehicle," he was primarily sidewalk or crosswalk oriented at the time of the accident, not vehicle oriented.
Lavoie argued that he was "engaged in an activity essential to the use of the vehicle" because he was delivering a repaired tire to a customer, and that the vehicle is necessary to complete the work-related task. The court decided that although the vehicle is necessary for the task, it did not establish that crossing the street to the vehicle was "essential to the use of the vehicle."
The court said that the definition provided by Lavoie for "getting in" a vehicle could potentially lead to absurd results, including a person walking many miles through many obstacles being considered "getting in" the vehicle throughout the harrowing journey, solely because the intent while walking was to reach the vehicle.
The court concluded that since Lavoie had not offered a "reasonable alternative definition" of "getting in" or "occupying" and therefore failed to establish that the terms were ambiguous.
Editor's Note: Occupying, or getting in or out of an automobile for insurance purposes can take many forms. In D'Amour v. Amica Mut. Ins. Co, 891 A. 2d 534 (N.H. 2006) the insured was considered to be "getting out of" the vehicle when she had unloaded groceries from her car and was walking around it to the sidewalk when she slipped on the ice and fell, suffering injuries.
In Miller v. Amica Mut. Ins. Co.,931 A.2d 1180 (N.H. 2007), (where tragically the insured died in a motorcycle accident) the insured had a policy on his primary vehicle but not on his motorcycle. The policy had an exclusion precluding coverage for any injuries sustained while "occupying" a motor vehicle he owned that was not insured under the policy. The insured hit a pothole while driving his uninsured motorcycle and was subsequently hit and killed by an unknown vehicle and driver. The administrator of his estate sued the insurer seeking a judgment that the insurer was required to provide uninsured motorist coverage. The court determined that the insured was not "occupying" the vehicle, and that the connection had been severed at the time he was hit, so the exclusion did not apply.