Occupying A Vehicle

Insurance lawyers in Dallas need to be able to tell a new client whether or not they have a claim worth pursuing. In 1963, the Waco Court of Appeals issued an opinion that insurance lawyers should know about. The style of the case is, Ferguson v. Aetna Casualty & Surety Company. Here is the relevant information from that case.
Ferguson sued Aetna Casualty upon the ‘medical payments provision‘ of a policy issued upon her automobile. Such policy provided medical payments for the named insured who sustains ‘bodily injury, caused by accident, while occupying or through being struck by an automobile.’ The term ‘occupying’ is defined in the policy as meaning ‘in or upon or entering into or alighting from an automobile.’
Ferguson had been to the beauty parlor. She left the beauty parlor, came out onto the parking lot where she had left her automobile. In front of the beauty shop was a board that went out into the parking area. Parked alongside of this board at the end of it was ‘an automobile’. Ferguson walked to the end of the board and reached out and grabbed the door handle of the car to support herself. While holding onto the handle for support, she stepped off the board and went down into the mud, breaking both legs and suffering other injuries. The car Ferguson had hold of was not her own, and she was not in the act of entering such car; she was merely holding onto the handle for support as she walked around the car on her way to her own car, which was parked further down on the parking lot. However, if Ferguson was ‘in or upon, or entering or alighting from’ this particular car, she would be covered by the policies..
The Trial Court entered summary judgment that Ferguson take nothing, holding that she was not ‘occupying an automobile’ within the definition of the medical payments of the policies which provide that the term ‘occupying’, is defined as ‘in or upon or entering into or alighting from an automobile’, at the time of sustaining injury.
Ferguson appealed, contending that the trial court erred in rendering such summary judgment, and that the policies afforded coverage in the factual situation involved. Ferguson further contended that she was ‘in or upon’ the automobile that she was touching if she had ‘physical contact’ with such automobile. Ferguson had hold of the door handle to steady herself as she went around the car; she was not entering this automobile; she had not occupied this automobile, nor was she intending to enter it; she was simply holding on to the handle to steady herself as she walked around it.
The sole question for determination is whether Ferguson was ‘in or upon’ the automobile she had her hand upon at the time she fell and sustained injury.
The court thought the language employed in the coverage of the insurance policies reasonably plain and unambiguous; and to say that Ferguson was ‘in or upon’ the automobile she had her hand on would be placing a distorted meaning, and unreasonably strained construction upon the described coverage. If Ferguson had been entering or alighting from the car she had her hand upon, at the time of her injury, a different situation would be presented. This court could not say she was ‘in or upon’ the car simply because she put her hand upon it to steady her walk around it on the way to her own car from the beauty parlor. Moreover, the court rejected Ferguson’s contention that ‘physical contact’ alone is the test as to whether an insured is ‘in or upon’ an automobile. This court ruled the trial court correctly entered summary judgment that Ferguson take nothing.

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