Last Monday, the Fifth Circuit Court of Appeals affirmed a trial court's summary judgment in favor of an insurer finding that the insured's fall and subsequent death occurred after he had exited the insured vehicle and, as a result, the death benefit did not apply.  In McWhirter v. AAA Life Insurance Company, 2015 WL 4720323 (5th Cir. Tex. August 10, 2015), the policy provided coverage for accidents that occurred while "exiting from any private passenger automobile."  The insured returned from a party with his wife and daughter, with his daughter driving the car.  Shortly after arriving home, the insured fell.  He was found lying in the grass near the car and neither his wife nor daughter witnessed the fall.  McWhirter later died from a head injury sustained in the fall.  AAA moved for summary judgment asserting McWhirter fell after exiting the vehicle.  The trial court granted summary judgment in favor of AAA and this appeal followed.

On appeal, the Fifth Circuit reviewed the evidence which supported the claim the insured fell after he exited the vehicle and while approaching the house, along with the conflicting evidence provided by the family in an effort to create a fact issue.  The Court found the evidence offered, however, was not sufficient to create a genuine issue of material fact. The Court observed the Texas Supreme Court had considered a very similar case and whether an accident arose out of the use of a truck and noted that "if the insured had finished exiting the truck and then fell, or if he had fallen out of the car without any involvement of the vehicle, there would be no coverage."  Accordingly, summary judgment in favor of the insurer was upheld.

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