Is physical contact with the insured vehicle necessary for a person, other than a named insured, to be “occupying” a motor vehicle under a UIM policy? The majority of jurisdictions across the country hold that physical contact is not a requirement. Instead these courts eschew a hard-and-fast rule mandating contact in favor of a multi-factorial approach which better lends itself to fulfilling the laudable purpose of UIM coverage. This multi-factorial approach avoids results between comparable fact patterns which confound fairness and reasoned justice.
Consider, for example, a boyfriend who was given permission to use his girlfriend’s car to run to the local convenience store to buy butter needed for Thanksgiving dinner. Then, while returning to the car after purchasing the butter, and an arm’s length from the door, he is struck and seriously injured by an underinsured car. Assuming the girlfriend’s UIM policy defines “occupying” as “in, upon, getting in, on, out of or off” the car, should the boyfriend be able to recover UIM benefits under this policy?
