Summary
In Caperilla, a police officer was struck by a car after leaving his own vehicle and attempting to cross a street in order to provide backup assistance for a pedestrian stop.
Summary of this case from St. Paul Fire Marine Insurance Co. v. RheinOpinion
Civil Action No. 03-5004.
July 9, 2004
MEMORANDUM
Presently before the court are the parties' cross motions for summary judgment. For the reasons set forth below, Plaintiff's motion will be denied, and Defendant's motion will be granted.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Property and Casualty Insurance Company of Hartford filed the instant action seeking a declaration that there is no coverage under a commercial automobile insurance policy issued to the Borough of Norristown. Defendant Francis R. Caperilla, a Borough of Norristown police officer, filed a claim for benefits under the policy for injuries he suffered when he was struck by an underinsured motorist ("UIM") on April 29, 2000. Plaintiff claims that at the time of the accident Defendant was not "occupying" the vehicle, and is therefore not covered by the policy. (Pl's. Mem. of Law at 2.) This court may exercise subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 1332(a) because there is diversity of citizenship and the amount in controversy exceeds $75,000, exclusive of interests and costs.
The facts of the case are largely undisputed. The parties agree that at approximately 3:00 a.m. on April 29, 2000, Defendant responded to a backup call to assist another officer with a pedestrian stop. (See Stipulation of Undisputed Facts, hereinafter "Stipulation.," ¶ 2.) Defendant drove his patrol car to the scene and parked in the southbound lane of travel on a two-way street. (Stipulation ¶ 2, 3, 5.) Defendant exited the patrol car, with the engine still running and the flashing lights on, and began to walk across the street towards the other officer. (Stipulation ¶ 7, Tims Dep. at 30-31) Defendant was in the northbound lane when he noticed a vehicle approaching. (Stipulation ¶ 8.) Realizing that the vehicle might strike him, Defendant turned around and ran in the direction of his patrol car. (Caperilla Dep. at 33.) Defendant was struck by the vehicle while still in the northbound lane and while approximately five to ten feet from his patrol car. (Stipulation ¶ 11, 12.) Defendant brought a claim against the driver of the vehicle that hit him and settled for $15,000, the liability coverage limit under the drivers policy. (Stipulation ¶ 13, 14.)
At the time of the accident, Plaintiff had issued a policy of commercial automobile insurance coverage to the Borough of Norristown, policy No. 39 UEN QH4213. (Stipulation ¶ 15.) The policy included a UIM Endorsement, which provided coverage for accidents involving underinsured motorists. (Bates no. "Hartford 71") The UIM Endorsement defines who is an "insured" as including the named insured, which is the Borough of Norristown in the present case, and anyone else "occupying" a covered vehicle. (Bates no. "Hartford 72".)
The endorsement defines other categories of persons covered, none of which apply in the present case.
II. LEGAL STANDARD
Summary judgment shall be awarded "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Once the moving party has carried the initial burden of showing that no genuine issue of material fact exists, the non-moving party cannot rely on conclusory allegations in its pleadings or in memoranda and briefs to establish a genuine issue of material fact. Pastore v. Bell Telephone Co. of Pa., 24 F.3d 508, 511 (3d Cir. 1994). The nonmoving party, instead, must establish the existence of every element essential to his case, based on the affidavits or by the depositions and admissions on file. Id. (citing Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir. 1992)); see also Fed.R.Civ.P. 56(e). The evidence presented must be viewed in the light most favorable to the non-moving party. Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983).
Under Pennsylvania law, where the terms and conditions set forth in an insurance policy are not in dispute, the question of policy interpretation is a matter of law for the court, and is not a matter for the fact finder. Pacific Indemnity Co. v. Lynn, 766 F.2d 754, 760 (3d Cir. 1985). Furthermore, the determination of whether an individual who is not physically in a vehicle is deemed to be "occupying" the vehicle is a matter of law. Utica Mutual Insurance Co. v. Contrisciane, 504 Pa. 328, 334; 473 A.2d 1005, 1008 (1984). In Utica the Pennsylvania Supreme Court held that a person will be considered to be "occupying" a vehicle when all of the following criteria are met:
(1) there is a causal relation or connection between the injury and the 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.Id. at 1009.
In deciding to adopt this standard for determining whether an individual is "occupying" a vehicle, the Pennsylvania Supreme Court rejected using the literal meaning of the word occupying, instead focusing on the whether the individual was engaged in acts associated with the immediate use of a vehicle. Id. at 1009. The court held that a "more liberal interpretation" of the term "occupying" was required. Id. at 1009
III. DISCUSSION
Plaintiff contends that Defendant fails the third and fourth prongs of the Utica test. (Pl.'s Mem. of Law at 10.) To satisfy the third prong Defendant must demonstrate that he was vehicle oriented at the time of the accident. In the present case, although Defendant had exited his patrol car and had begun to cross the street in order to assist another officer with a pedestrian stop, he clearly intended to return to his patrol car at the conclusion of providing backup, as evidenced by the fact that he left the patrol car running in the travel lane with the emergency flashers on. (Stipulation ¶ 7, Tims Dep. at 30-31). In his capacity as a police officer Defendant was required to enter and exit his patrol car frequently in order to carry out his duties. The interjection of the vehicle which struck the Defendant, and caused him to attempt to avoid being struck, was insufficient to alter his orientation from vehicle to highway.
Defendant also meets the requirements of the fourth prong of the Utica test, which requires that the person be engaged in a transaction essential to the use of the vehicle. Defendant's use of the patrol car in the present case was for the purposes of transporting him to the scene of the pedestrian stop. Additionally, the use of emergency flashers indicates that Defendant was continuing to utilize the vehicle at the time of the accident. As discussed above, Defendant was frequently required to enter and exit his vehicle during the course of his duties. I predict that the Pennsylvania Supreme Court would find, given the circumstances of Defendant's position as a police officer and the need to frequently enter and exit his vehicle, that Defendant was covered as an "occupier" under the Utica test.
I find that Defendant does meet the third and fourth prongs of the Utica test, because he was vehicle oriented at the time of the accident and because he was engaged in a transaction essential to use of the insured vehicle. Defendant has therefore demonstrated that he was occupying the vehicle at the time of the accident and is an "insured" as defined by the policy. An appropriate order follows.
ORDER
AND NOW, this ____ day of July, 2004, upon consideration of Plaintiff Property and Casualty Insurance Company of Hartford's Motion for Summary Judgment, IT IS HEREBY ORDERED that Plaintiff's motion is DENIED. IT IS FURTHER ORDERED that Defendant's Motion for Summary Judgment is GRANTED. IT IS FURTHER DECLARED that Defendant, Francis. R. Caperilla, is an "insured" under the relevant policy.