An over-the-road truck driver parked his truck on the shoulder of a road, got out, walked across a five-lane highway to a convenience store, purchased a soft drink and chewing tobacco, walked back across the highway towards his truck, but in the lane second-nearest the truck was struck by a vehicle which fled the scene. The truck driver was injured and sough coverage under his employer’s uninsured motorist policy. The UM carrier denied coverage and moved for summary judgment arguing that the truck driver was not entitled to coverage because he was not “occupying” a covered auto at the time of the accident. The policy defined “occupying” as “in, upon, getting in, on, out or off” a covered auto. The trial court granted summary judgment and the truck driver appealed. The case is Beech v. John Doe, No. M2013-02496-COA-R2-CV (June 11, 2014).
The issue on appeal was whether the truck driver was “upon” the truck at the time of the accident for purposes of uninsured motorist coverage. The court of appeals found he was not and upheld the trial court’s grant of summary judgment. The court of appeals looked at a number of other cases interpreting “upon.” Most notably, the court looked to Tata v. Nichols, 848 S.W.2d 649 (Tenn. 1993) in which the Tennessee Supreme Court found that the term “upon” when used to define “occupying” for purposes of UM coverage is ambiguous. The Supreme Court adopted four criteria for determining whether a person is “upon” a vehicle so as to “occupy” it:
(1) there is a causal relation or connection between the injury and use of the insured vehicle;
(2) the person asserting coverage must be in a reasonably close geographic proximity to the insured vehicle, although the person need not be actually touching it;
(3) the person must be vehicle oriented rather than highway or sidewalk oriented at the time; and
(4) the person must also be engaged in a transaction essential to the use of the vehicle at the time.
848 S.W.2d at 651-52. These factors were initially set forth in the Pennsylvania case of Utica Mut. Ins. Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (Pa. 1984) and are referred to as the “Utica test.”
Considering the Utica test and several other Tennessee cases applying the factors, the court of appeals found that, based on the facts stated above, the truck driver in Beech was not “upon” the insured vehicle when he was struck.
Mr. Beech argued that there was a causal relationship between his injury and the insured truck because he was making a customary stop in an employer-owned vehicle. The court was not persuaded instead finding that Mr. Beech was not operating the vehicle at the time of the injury and its use did not bring about his injuries. Mr. Beech also argued that he was engaged in a transaction that was essential to the use of the truck because “[i]t is essential for truck drivers to have refreshments and comfort items on their trips” and federal law requires truck drivers to make stops on long trips. The court was not persuaded by these arguments either because Mr. Beech had just begun the trip and was not at a point where federal law required him to take a break. The court found that Mr. Beech had severed his relationship with the truck when he exited it to make a purchase and that he had not yet resumed his relationship when he was struck and injured.