Last week, the Houston Court of Appeals concluded that the insureds’ outside physical contact with the vehicle could constitute “occupying” the vehicle for purposes of establishing that the insureds were “covered persons” under the policy. Accordingly, the Court reversed the trial court’s grant of summary judgment to the insurer. In Hill v Allstate Fire and Casualty Ins. co., No 14-20-00562-CV, 2022 WL 2936756 (Tex. App.—Houston, July 28, 2022, mem. op.), Cortney Hill was driving her vehicle when she ran out of gas and parked on the right shoulder of U.S. Highway 59.  Minor child D.M. was a passenger.  Hill called a family member who arrived with a filled gas can.  Because Hill was afraid that she would get hit by a car while filling the gas tank, she pressed her body on the car so she would be as close as possible to avoid the passing cars. Her body was touching the car while she was holding the gas can. D.M. was standing between the front door of the passenger's side and the concrete barrier, holding the door handle.  When Hill spotted a rapidly approaching vehicle driving on the shoulder towards them, she yelled for everyone to move, at which point D.M. lay down on the roadway in close proximity to the car.

Hill, individually and as next friend of D.M., filed suit against Allstate for its failure to pay uninsured/underinsured motorist benefits. In response, Allstate filed a motion for summary judgment, arguing that Hill and D.M. were not “covered persons” because they were not “occupying” the vehicle at the time of the accident.  The policy protected covered persons while “occupying” the covered auto.  “Occupying” was defined in the policy as “in, upon, getting in, on, out, or off.”  Allstate asserted that Hill and D.M.’s “incidental contact” with the vehicle did not equate to them being “on” or “upon” the vehicle. The trial court agreed and granted Allstate’s motion.  Hill subsequently appealed.  The Court of Appeals reversed and remanded. 

On appeal, the Court concluded that Hill and D.M. raised a genuine issue of material fact regarding whether they were occupying the vehicle at the time of the accident, and that the trial court erred in granting summary judgment to Allstate.  The Court reasoned that “[b]ecause one of the common and ordinary meanings of the word “upon” is that of “contact with” [as defined by Merriam-Webster Dictionary], it is reasonable to conclude the parties contemplated a construction of the word that would include actual physical contact with the vehicle.”  Further, the policy did not limit or restrict the meaning of the word “upon” in defining the term “occupying.” Further, fair-minded jurors could differ in their conclusions regarding whether Hill and D.M. were occupying the vehicle at the time of the accident, even considering that D.M. took evasive actions and was not physically touching the vehicle immediately prior to the accident.   

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