Insurance Policy Language

Arlington insurance attorneys know how important the language in a policy is and how that language relates to the facts in a claim. The Houston Court of Appeals issued an opinion in 1996, in the case styled, “Schulz v. State Farm Mutual Auto.” Here is some the relevant information in this summary judgment case.
The summary judgment evidence shows that Gunar Fulk, Schulz’s son, was driving a pickup truck owned by Schulz’s husband and insured by State Farm. Fulk, accompanied by a friend, gave a ride to Lonnie Earl Johnson. Some time thereafter, Johnson shot three fatal rounds into Fulk’s face and chest as Fulk was standing outside the truck. Johnson then killed Fulk’s friend with a shot to his back.
Schulz sued State Farm seeking to recover benefits under the personal injury protection (PIP) and auto death indemnity (ADI) coverages provided under a State Farm insurance policy that covered the vehicle. In her original petition, Schulz claimed Johnson pulled the gun in an apparent attempt to hijack the truck. She also claimed that, at the time the shots were fired, Fulk was either seated in the truck or, in the alternative, had been ordered at gunpoint to get out and was kneeling next to the truck. However, there is nothing in the record, other than Schulz’s assertions in her original petition, to support the allegations that Fulk’s truck was hijacked, that Fulk was ordered out of the truck or that Fulk was kneeling next to the truck when shot.
In it’s summary judgment motion, State Farm argued that (1) because there was no collision or automobile accident between the insured truck and any other vehicle as contemplated by the terms of the policy, (2) because Fulk was not “occupying” the insured vehicle when he sustained his fatal injuries, and (3) because there was no causal relationship between the insured vehicle and the incident giving rise to the injuries, Schulz was not entitled to any benefits under the policy. In support of its motion for summary judgment, State Farm attached certain documents and discovery responses filed in the cause to its motion, including:
(1) the affidavit of attorney Charles A. Kreger, “authenticating responses to requests for admissions and answers to interrogatories;”
(2) Schulz’s responses to State Farm’s requests for admissions. In these responses, Schulz admitted Fulk was not “inside” the vehicle at the time he was shot nor were Fulk’s injuries the result of “the physical motion of a vehicle coming to a sudden stop;”
(3) Schulz’s answers to interrogatories. Within these answers, Schulz states Fulk was shot outside the driver’s side door of the truck; and (4) the affidavit of Pete G. Serrata, custodian of records of State Farm, authenticating a true and correct copy of the insurance policy issued to Walter W. Schulz, Jr., Chris Schulz’s husband.

Schulz contended, notwithstanding her responses and admissions, that the PIP and ADI provisions contained in the policy provided coverage to persons “occupying” the insured vehicle. Relying upon the “Definitions” section of the policy, wherein “occupying” is defined as “in, upon, getting in, on, out or off,” Schulz argued Fulk was in fact “occupying” the vehicle at the time he was shot and killed because his status as an “occupant” continued, even though he was shot outside the vehicle, because he was in relatively close proximity to the vehicle for purposes related to the vehicle and because his exit from the vehicle was not voluntary, but rather a result of force.
The trial court grant summary judgment in favor of State Farm. Schulz contends the trial court erred in granting summary judgment because State Farm failed to conclusively establish: (1) that Fulk was not “occupying” his vehicle; (2) that Fulk’s death did not result from a “motor vehicle accident;” and (3) that there was a lack of causal relationship between the insured vehicle and the criminal assault so as to preclude coverage under the PIP and ADI provisions. In her fourth point of error, Schulz argues there is no sound public policy to be furthered by denying car-jack victims, or their survivors, PIP or ADI benefits.
The PIP provisions of the policy provided: “[W]e will pay Personal Injury Protection benefits because of bodily injury resulting from a motor vehicle accident, and sustained by a ‘covered person.’ ”
“Covered person” as used in this part means:
1. You or any family member:
a. while occupying; or b. when struck by a motor vehicle designed for use mainly on public roads or a trailer of any type.
“Occupying” means in, upon, getting in, on, out or off.

The policy clearly intended to limit PIP coverage to only those “covered persons” whose injuries were a result of a motor vehicle accident. However, the Insurance Code does not include the limiting term “motor vehicle accident” in its definition of PIP coverage:
“Personal injury protection” consists of provisions of a motor vehicle liability policy which provide for payment to the named insured in the motor vehicle liability policy and members of the insured’s household, any authorized operator or passenger of the named insured’s motor vehicle including a guest or occupant, up to an amount of $2,500 for each person for payment of all reasonable expenses arising from the accident …
Schulz was not entitled to recover under the PIP provisions of the policy simply because the covered vehicle may have been involved. No evidence was presented to indicate Fulk’s injuries resulted from a motor vehicle accident.
The relevant provision of the ADI coverage portion of the policy reads:
We will pay the principal sum stated in the Schedule in the event of the death of the person which shall result directly and independently of all other causes from bodily injury caused by accident and sustained by the insured while occupying, or through being struck by, an auto …
Thus, to have been entitled to ADI coverage, Schulz was required to show that Fulk’s injuries resulted from an accident while he was “occupying” the insured truck.
As defined by the State Farm policy, “occupying” means “in, upon, getting in, on, out or off.” Schulz argued that Fulk was an “occupant” of the vehicle because his position inside the vehicle came to an end solely because a hijacker’s gun forced him out of the vehicle. Schulz cites a number of cases wherein courts have held, with respect to coverage under insurance policies, that claimants continued to be “occupants” of their vehicles if they were in close proximity to their vehicle and their activities were still vehicle-oriented at the time they sustained their injuries.
The only competent summary judgment evidence presented to the trial court was that provided by State Farm. This evidence showed only that Fulk was killed as a result of three gunshot wounds to the face and chest. There was no competent summary judgment evidence to support Schulz’s claim that Fulk was in any way “occupying” the vehicle at the time he was shot. This negates at least one essential element of Schulz’s claims under the ADI provision of the policy and supports the trial court’s conclusion that there was a lack of causal relationship between the vehicle and Fulk’s death so as to preclude coverage under the ADI provision of the policy.

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