Court of Appeals Narrowly Interprets Term “Occupying” in Underinsured Policy Endorsement to Exclude Tow Truck Operator from Recovering Benefits Under Policy

In this case, the Court of Appeals applies a narrow interpretation to the defined term “occupying” in the insurance policy under consideration, which was defined to include “in, upon, getting in, on, out or off” of the vehicle.  The Court of Appeals majority (Judges Whitbeck and Sawyer) applied a narrow definition to exclude coverage for a tow truck operator who was seriously injured when he was struck by another car while operating the tow-truck’s PTO apparatus to pull a police cruiser from a ditch.  The insurer of the automobile that struck the plaintiff settled for the $100,000 policy limits. The plaintiff then sought to invoke the uninsured / underinsured endorsement on the tow-truck’s policy.  That policy provided $1,000,000 in coverage.

The dissent (Judge M.J. Kelly) makes a good argument that based on prior precedent (the Michigan Supreme Court decision in Rednour v. Hastings, 468 Mich 241 (2003) and subsequent case law by the Supreme Court and Court of Appeals, particularly in Rohlman v. Hawkeye (On Remand), 207 Mich App 334 (1994)) and the fact that the plaintiff was leaning on and using the truck for support at the time he was operating the PTO to pull the cruiser from the ditch meant that he was “occupying” the vehicle for purposes of the underinsured / uninsured endorsement.

This is a published opinion with a 2-1 majority.  Read it here:  Westfield v. Ken’s