Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Edward Lee McDonald was driving a tractor trailer, the rig of which was owned by Robert Cooper, and the trailer of which was owned by All Points Holdings, for whom McDonald was driving. Bobby Robinson was a driver’s helper in the truck when the truck got a flat tire on I-10 near Katy. McDonald pulled the rig to a point in between the interstate and the service road. Without attempting to change the tire, and after not being able to use their cell phone to call for help, the two began left their belongings in the rig and began walking along the service road to get help. The pair walked with their backs toward traffic. Some time after they began walking, though neither knew how long, the pair were struck from behind by a car driven by Francisco Rangel and injured. Rangel’s insurance policy was only for $20,000 per person. The insurance policy carried by All Points, which was issued by Southern County Mutual Insurance Co., included uninsured/underinsured motorist coverage for the rig, so McDonald and Robinson made claims under its provisions. The UIM provision extended coverage to “damages which an insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by an insured, or property damage caused by an accident.” The policy also defined “insured” as being the named party All Points” as well as “any other person occupying a covered auto.” The phrase “occupying” was further defined as “in, upon, getting in, on, out of off.” Southern County sued for a declaratory judgment denying coverage for McDonald’s and Robinson’s claims, arguing that they did not meet the definition of “insured.” The trial court rendered judgment for Southern County and made findings of facts and conclusions of law. On appeal, McDonald and Robinson contend they are covered under the policy because they were “occupying” the rig when they were struck by the motorist. In the alternative, the argue that they were insureds at the time of the accident because they were within a reasonable geographic proximity to the tractor and engaged in an activity necessarily related to the use or maintenance of the tractor. HOLDING:Affirmed. The court finds that in two cases, one involving a person walking in a parking lot, and one involving a person grabbing the handle of someone else’s car for support, the term “occupying” has not be interpreted to cover a situation as is alleged here. In these two decisions, and two more cases decided just this year, the court finds that the courts of appeals affirmed the denial of coverage, based on holdings that “occupying” requires a causative nexus with the vehicle, and the claimants in these cases lacked such a nexus. The court agrees with the trial court’s conclusion that once McDonald and Robinson began their foot journey, they ceased to be vehicle-oriented, thus there was no causative nexus. The court rejects the plaintiffs’ emphasis on the word “getting.” McDonald and Robinson contend that “getting” modifies only “in,” not “on, out or off.” The court says this interpretation would lead to a result that anywhere outside of the truck would fall under the definition of “occupying.” The court also rejects the plaintiffs’ argument that the word “while” required the court to give a broader meaning to the term “occupying” in the phrase, “We do not provide Uninsured/Underinsured Motorists Insurance for any person: a. For bodily injury sustained while occupying, or when struck by another motor vehicle . . . ” The court finds the word “ while” is merely an article of speech � a conjunction � not a term-specific word. The court then considers the plaintiffs’ arguments that they were covered because they were still in the course of maintaining the vehicle when they went off to seek help. The court rejects this argument as well. “First, the accident arose out of the inherent nature of their pedestrian journey, not from their interaction with the tractor. Second, they terminated the tractor’s”actual use’ when they drove into the grass, parked the tractor, turned the engine off, and walked beyond the”natural territorial limits’ of the tractor. Third, the tractor did not ‘itself produce the injury.’” OPINION:Bland, J.; Taft, Jennings and Bland, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.