Metropolitan News-Enterprise


Monday, November 8, 2004


Page 1


Injured Man Was ‘Upon’ Vehicle by Which He Was Standing, Court of Appeal Rules in Insurance Case


By DAVID WATSON, Staff Writer


A man standing by a van, attempting to speak with its driver, when he was struck by another motorist was “upon” the van and therefore covered by the uninsured motorist provisions of its owner’s insurance policy, the Sixth District Court of Appeal ruled Friday.

The case arose from a sequence of traffic mishaps on Highway 101 in 1997. The injured man, Robert Ruiz, had been driving his employer’s pickup truck when his vehicle and a van were struck by Cristobol Tavares.

Ruiz, who was not hurt in the that collision, left his truck and was standing near the van when he was struck by an underinsured motorist and severely injured. The company insuring his employer and the insurer of the van owner disputed which policy’s uninsured and underinsured motorist coverage applied.

Both policies included language making coverage applicable to anyone “upon” the covered vehicle.

Justice Franklin D. Elia said Ruiz was “upon” the van—and not “upon” his pickup—at the time his injury occurred.

“In everyday speech, we do not usually say a person is ‘upon’ a vehicle,” Elia observed. “Consequently, we cannot simply look to its ordinary and popular sense and must turn to the dictionary.”

Dictionary definitions suggest the word may imply either actual physical contact or mere close proximity, Elia asserted, adding that the insurance policies did not include anything to clarify which meaning was intended.

In Cocking v. State Farm Mut. Automobile Ins. Co. (1970) 6 Cal.App.3d 965, the justice pointed out, the appellate court adopted the more inclusive definition of the term in a similar context. Cocking, Elia said, correctly concluded that in view of the remedial purpose of uninsured motorist coverage laws actual physical contact should not be required.

He reasoned:

“In this case, Ruiz was positioned immediately adjacent to [the] van for reasons essentially related to the insured vehicle and its use on the highway. When struck by the underinsured vehicle, Ruiz was attempting to speak to the van’s driver regarding the multi-vehicle accident that had just occurred and had just helped an injured passenger exit. In light of the principle that ambiguities in a policy are generally construed against the insurer—and the underlying public purpose of the uninsured motorist statute, we conclude that under the stipulated facts Ruiz, who was standing only about a foot from [the] van, was ‘upon’ the van and qualified as an ‘insured’ within the meaning of [the policy’s] UM coverage provisions.”

Elia went on to conclude that Ruiz was no longer “upon” his employer’s pickup truck and was not covered under the policy applicable to that vehicle. He rejected the van insurer’s argument that it was to be expected that, under the circumstances, Ruiz would leave his vehicle to talk to other drivers involved in the first collision, and that therefore the fact he was some 200 feet away from the pickup when he was injured should not be viewed as determinative.

“[A]s a result of the initial accident, Ruiz temporarily abandoned his employer’s truck and intended to exchange information with the driver of [the] van before returning to the truck,” Elia wrote. “The fact that he had good reason to leave the immediate vicinity of the truck does not support judicial expansion of the term ‘upon’ beyond its commonsensical meaning.”

The jurist continued:

“At some distance, an individual who exits a vehicle is no longer ‘upon’ the vehicle in even a physical sense. Ruiz was approximately 200 feet, about two-thirds of a football field, away from the truck at the time he was struck by the underinsured motorist.  Such a distance in no way qualifies as close proximity— and a contrary conclusion would strain the meaning of the word ‘upon.’”

Justice Eugene M. Premo and Presiding Justice Conrad L. Rushing concurred.  The case is Atlantic Mutual Ins. Co. v. Ruiz, H025852.


Copyright 2004, Metropolitan News Company