The Texarkana Court of Appeals recently affirmed summary judgment in favor of an insurer which denied Personal Injury Protection (PIP) coverage to an insured who injured his back while trying to free a delivery driver who got pinned beneath the load while unloading the truck. In Keily v. Texas Farm Bureau Casualty Ins. Co., 2019 WL 3269626 (Tex.App. – Texarkana July 22, 2019), the insured had a load of roofing metal sheets delivered to his home to repair his roof. The insured, who walked with a cane due to a previous knee surgery, was unable to help unload the truck. But when the driver got pinned beneath the first bundle of metal sheets that slid off the truck on top of him, and answering the driver’s screams for help, the insured fractured two vertebrae in his lower back while lifting the metal sheets off of the delivery driver. The insured submitted a PIP claim under his own auto policy, his insurer denied the claim and this lawsuit followed.

The parties stipulated in part that the insured did not come in contact with the delivery truck or the truck lift before or during the incident. “At no time was Kiely ever occupying or struck by the truck.”  Both parties moved for summary judgment and the court granted the insurer’s and denied the insured’s. On appeal, the court examined the policy language providing PIP coverage “resulting from a motor vehicle accident” and applicable Texas case law. And the court found that the insured was not injured while exiting the vehicle or unloading the truck, but instead, the “injury-producing event” was the insured’s intentional act – lifting metal sheets of the driver. Accordingly, the insured was not injured as a result of a “motor vehicle accident.”

The court also examined whether the injuries occurred while a covered person was “occupying” a motor vehicle. The policy defines “covered person” in part as the named insured “… while occupying … or … when struck by … a motor vehicle ….” And the policy defines “occupying” in part as “in, upon, getting in, out or off.” But here, the parties stipulated that the insured “never touched the outside of the truck, including the bed of the truck”, neither entered or exited the truck during the incident and was not struck by the truck. And for these reasons, the court found that the insured was not a covered person entitled to PIP benefits. Lastly, the court summarily rejected the insured’s claim for extra-contractual damages and affirmed summary judgment in favor of the insurer. 

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